Mckinney v. Dorlac

Citation146 P.2d 867,48 N.M. 149
Decision Date23 February 1944
Docket NumberNo. 4797.,4797.
PartiesMcKINNEYv.DORLAC et al.
CourtSupreme Court of New Mexico

OPINION TEXT STARTS HERE

Appeal from District Court, Bernalillo County; Henry G. Coors, Judge.

Suit under the Workmen's Compensation Act by Helen McKinney against H. C. Dorlac, employer, and the Pioneer Mutual Compensation Company, insurer, to recover compensation for death of claimant's husband, Arthur McKinney. From an adverse judgment, the employer and insurer appeal.

Affirmed.

Where employee working in Albuquerque was directed by employer to go to Roswell to work as foreman, and while employee was making the trip he was fatally injured in automobile accident and employee received regular wages on day of accident, the injuries were sustained in “course of employment” within Workmen's Compensation Act. 1941 Comp. § 57-912( l).

Dailey & Rogers and Jethro S. Vaught, Jr., all of Albuquerque, for appellants.

H. O. Waggoner, of Albuquerque, for appellee.

THREET, Justice.

Appellee, Helen McKinney, filed her suit in the District Court of Bernalillo County, under the Workmen's Compensation Act, to recover compensation for the death of her husband, Arthur McKinney, occurring in an automobile accident near Encino, New Mexico, on August 8, 1941.

The facts, in substance, are as follows:

Prior to August 8, 1941, the deceased, Arthur McKinney, had been employed as a plasterer by appellant H. C. Dorlac off and on for a period of five years. H. C. Dorlac had a sub-contract with the Lembke Construction Company to do a plaster job in Roswell, New Mexico, beginning on August 11, 1941. On the evening of August 7, 1941, it was agreed between the appellant H. C. Dorlac and the deceased that the deceased would go to Roswell on August 8, 1941, and make preparations for starting the plastering work at Roswell, New Mexico, on August 11, 1941, on which job the deceased was to act as foreman for the appellant Dorlac. The deceased worked for the appellant Dorlac in Albuquerque, New Mexico, which was his residence, on August 7, 1941 and on the evening of that day was paid the wages due him and was also paid a day's wages for August 8, 1941 for the reason that if he had remained in Albuquerque he could have continued to work for the appellant Dorlac on that day, and was also to be paid for the day following his arrival in Roswell, New Mexico, if he arrived there in time to do a day's work. On August 8, 1941, the deceased together with appellee, his wife, and Edson Lee Flower, brother of appellee, left Albuquerque on or about noon of that day to drive to Roswell, New Mexico, in a 1934 Ford Coupe automobile owned and being driven by the deceased. They proceeded towards Roswell on the regular traveled route and on arriving at Encino, New Mexico, they stopped and spent an hour or more in a bar and cafe operated by Blas Garcia. At approximately 4 o'clock of that day they left Encino to continue their journey to Roswell, New Mexico. The deceased was driving the automobile. Edson Lee Flower was sitting on the right hand side of the automobile, and the appellee was sitting between her brother and the deceased. They had driven approximately about one and one-half miles east of Encino, when they had an accident in which deceased lost his life. The highway at the point of the accident was straight for a considerable distance. The deceased was driving the automobile at approximately 55 miles per hour when Edson Lee Flower noticed that the wheels on the left side of the automobile were over on the left side of the white line in the center of the highway. Edson Lee Flower called this to the attention of the deceased, whereupon the deceased pulled the automobile to the right side of the highway when the brakes appeared to lock and the automobile left the highway and turned over resulting in the death of the deceased. Appellant Dorlac carried workmen's compensation insurance with appellant Pioneer Mutual Compensation Company. At the close of the testimony for appellee, appellants moved for a dismissal of appellee's claim for compensation on the following grounds: “If the court please, the plaintiff having rested, defendants, and each of them, move the court to dismiss plaintiff's claim for compensation for the reason that plaintiff's testimony and that of witnesses affirmatively show that the death of Arthur McKinney did not result from injuries from the extra hazardous occupation, or pursuant to his employment, as used in the workmen's compensation act, for the reason that it did not occur on or about the premises occupied, used or controlled by the employer in the conduct of his business as a plaster contractor, but occurred while he was on his way to assume the duties of his employment at Roswell, New Mexico, and that the testimony wholly fails to show that the approximate cause of his injury was due to the negligence of his employer.”

The trial court overruled appellants' motion to dismiss, whereupon they demurred to the evidence. The demurrer was based upon the identical grounds set forth in the motion to dismiss. The demurrer was also overruled. Appellants electing to stand upon their motion and demurrer, judgment followed in favor of appellee.

Assignments of error are as follows:

“1. The district court erred in overruling the motion to dismiss interposed at the conclusion of claimants testimony.

“2. The district court erred in overruling the demurrer to the evidence interposed to the conclusion of claimants testimony.”

The facts are undisputed. The question here becomes one of law. This case was instituted under the New Mexico Compensation Act, 1941 Comp., Sec. 57-912, Subsec. L, which reads as follows: “The words ‘injuries sustained in extra-hazardous occupations or pursuit,’ as used in this act (§§ 57-901-57-931) shall include death resulting from injury, and injuries to workmen, as a result of their employment and while at work in or about the premises occupied, used or controlled by the employer, and injuries occurring elsewhere while at work in any place where their employer's business requires their presence and subjects them to extra-hazardous duties incident to the business, but shall not include injuries to any workman occurring while on his way to assume the duties of his employment or after leaving such duties, the approximate cause of which injury is not the employer's negligence.”

Appellants' contention is that the injuries sustained by the deceased did not arise out of his employment or in the course of his employment and that the deceased workman came within the latter provision of Subsec. L, supra, which reads: “but shall not include injuries to any workman occurring while on his way to assume the duties of his employment or after leaving such duties, the approximate cause of which injury is not the employer's negligence,” and state that, since this provision has been construed by this court in Cuellar v. American Employers' Ins. Co. of Boston, Mass., 36 N.M. 141, 9 P.2d 685, and Caviness v. Driscoll Const. Co., et al., 39 N.M. 441, 49 P.2d 251, the evidence does not bring appellee within the rule announced in these cases for the reason that the approximate cause of the injuries to the deceased was not due to appellant Dorlac's negligence.

It may be conceded that if the injuries sustained by the deceased occurred under circumstances which will make it fall within the above-quoted section under Subsec. L, supra, then appellants' argument is correct, as the record fails to sustain any claim of injury to the deceased, the approximate cause of which was due to appellant Dorlac's negligence.

Appellee, on the other hand, maintains that the following portion of Subsec. L, supra, applies to the case at bar, to-wit: “*** and injuries occurring elsewhere while at work in any place where their employer's business requires their presence and subjects them to extra-hazardous duties incident to the business, ***” and states that Cuellar v. American Employers' Ins. Co. of Boston, Mass., and Caviness v. Driscoll Const. Co. et al., supra, are not applicable to the case at bar. To bring appellee within the rule contended for, the injuries sustained by the deceased must have arisen in the course of his employment; the employment of the deceased must have been continuous; and the trip to Roswell must have been in furtherance of his employer's business.

[1] A liberal construction of the Workmen's Compensation Act has been adopted by this court. The theory of the legislation is compensation, not the denial of it. Gonzales v. Chino Copper Co., 29 N.M. 228, 222 P. 903; Christensen v. Dysart, 42 N.M. 107, 76 P.2d 1; Points v. Wills, 44 N.M. 31, 97 P.2d 374.

[2][3] The evidence shows that deceased had been working for appellant off and on for a period of five years prior to his death, and that on the day preceding the accident, in which the deceased lost his life, he was working for appellant Dorlac as a plasterer in Albuquerque, New Mexico. On that day the deceased was directed by appellant Dorlac to go to Roswell, New Mexico, to work in the capacity as a foreman for appellant Dorlac, on a plastering job, which appellant was doing as a sub-contractor with the Lembke Construction Company. Our statute does not contain the phrase “and injuries occurring elsewhere in the course of his employment” as found in so many of the statutes from other states, but contains the phrase “and injuries occurring elsewhere while at work.” The meaning of the language “while at work” is synonymous with the phrase “in the course of his employment.” Placing this construction upon the wording of our statute, we find the rule most widely adopted by the courts to be as follows: “*** an injury to an employee arises in the course of his *** employment, at a place where he may reasonably be, and while he is reasonably fulfilling the duties of his employment or engaged in doing something incidental [thereto].” Young v. Department of Labor and...

To continue reading

Request your trial
37 cases
  • Cardillo v. Liberty Mut Ins Co
    • United States
    • U.S. Supreme Court
    • March 10, 1947
    ...Accident Commission, 140 Cal.App. 80, 34 P.2d 1052; Keely v. Metropolitan Edison Co., 157 Pa.Super. 63, 41 A.2d 420; McKinney v. Dorlac, 48 N.M. 149, 146 P.2d 867; Exelbert v. Klein & Kavanagh, 243 App.Div. 839, 278 N.Y.S. 377. 6 'Nor is it ('in the course of employment') limited to the tim......
  • Wilson v. Rowan Drilling Co., 5244
    • United States
    • New Mexico Supreme Court
    • September 16, 1950
    ...court is correct if the trial court's findings of fact numbers 4, 8 and 9 are supported by substantial evidence. See McKinney v. Dorlac, 48 N.M. 149, 146 P.2d 867; Barrington v. Johnn Drilling Co., 51 N.M. 172, 181 P.2d Findings of fact numbers 4, 8 and 9 are attacked upon the ground, as it......
  • Carter v. Burn Const. Co., Inc.
    • United States
    • Court of Appeals of New Mexico
    • January 26, 1973
    ...Co., supra. This was also true when an employee was directed by his employer to go to Roswell to work as a foreman, McKinney v. Dorlac, 48 N.M. 149, 146 P.2d 867 (1944). Rinehart v. Mossman-Gladden, Inc., 77 N.M. 470, 423 P.2d 991 (1967), can be distinguished because driving the employer's ......
  • In re Claim of Jensen
    • United States
    • Wyoming Supreme Court
    • April 1, 1947
    ...McGeorge v. Commission (Okla.), 69 P.2d 320. (c) Where the period of service includes the travel time, as in the case of McKinney v. Dorlac (New Mexico), 146 P.2d 867. Where the employee is performing some particular duty, or running a special errand for the employer, as in the case of Cymb......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT