Neel v. State Distributors, Inc.

• Decision Date: 16 October 1986
• Docket Number: No. 8584,8584
• Citation: 1987 NMCA 103,105 N.M. 359,732 P.2d 1382
• Parties: Thomas Joe NEEL, Plaintiff-Appellee, v. STATE DISTRIBUTORS, INC. and Mission Insurance Company, Defendants-Appellants.
• Court: Court of Appeals of New Mexico

Page 1382

732 P.2d 1382

105 N.M. 359

Thomas Joe NEEL, Plaintiff-Appellee, v. STATE DISTRIBUTORS, INC. and Mission Insurance Company,

Defendants-Appellants.

No. 8584.

Court of Appeals of New Mexico.

Oct. 16, 1986.

Certiorari Quashed Feb. 16, 1987.

[105 NM 359] Howard R. Thomas, Matthew P. Holt, Sager, Curran, Sturges & Tepper, P.C., Albuquerque, for defendants-appellants.

[105 NM 360] John A. Bannerman, Sasha Siemel, Sutin, Thayer & Browne, P.C., Albuquerque, for plaintiff-appellee.

OPINION

HENDLEY, Chief Judge.

Defendants appeal plaintiff's worker's compensation award. Plaintiff was injured from a self-inflicted gunshot wound to the face. Defendants contend that the injury did not arise out of the scope of employment because (1) the gun was not required by plaintiff's employment as an officer of the liquor business; (2) when the gun went off plaintiff was not doing anything related to his employment; and (3) even if plaintiff had been cleaning the gun, he had finished by the time it went off. Defendants also contend that the event was not an accident but was an attempted suicide. This is essentially a case in which defendants are arguing a lack of substantial evidence. We affirm.

Plaintiff was vice-president and general manager of State Distributors, Inc., a liquor wholesaler. On April 27, 1983, plaintiff arrived at his office approximately forty minutes early. Phyllis A. Gutierrez, the controller, was at work and greeted him. Thereafter, plaintiff entered his office. A few minutes later, Gutierrez stated that she heard a loud noise and found plaintiff lying on the floor near his desk bleeding from a gunshot wound. A pistol was in his hand.

Plaintiff was taken to a local hospital and treated. Diagnosis of the injury revealed that the pistol had been discharged under plaintiff's chin. The bullet had struck the jawbone, traveled through his palate, tongue, left eye, and into the front portion of his brain. The treating physicians noted that the bullet's entry left a "stellate" pattern or a star-shaped tear, and that such a wound is indicative that the barrel of the gun was in contact with the skin at the time the pistol was discharged. However, the evidence also showed multiple stellate wounds in both the roof and floor of the mouth.

Following surgery, plaintiff was placed in intensive care. He was combative and had to be restrained. Plaintiff was fed through a tube. The first night plaintiff pulled out the tube. Dr. Tyler W. Payton, a psychiatrist, and Dr. Reid K. Hester, a psychologist, who had both treated plaintiff, testified that they had questioned him about whether he had deliberately attempted to take his own life and that plaintiff nodded affirmatively. Dr. Payton saw plaintiff two weeks after the shooting. He testified he had stated to plaintiff that it must be horrible to be so depressed that one would try to take his own life. Plaintiff, unable to talk, nodded. Dr. Hester testified that he had also inquired of the plaintiff whether the shooting was deliberate. At that time, plaintiff was unable to speak and responded by nodding or shaking his head to the questions posed. Dr. Hester stated: "At that time, he did nod his head to my question as to whether he * * * deliberately tried to kill himself or do himself in." Both doctors admitted, however, that at the time of their questioning plaintiff may have been confused.

Plaintiff denied the shooting was intentional and testified that on the morning of the incident, after he had arrived at work, he decided to clean a pistol which he kept in his desk. He stated that after cleaning and oiling the gun, he reloaded it and, thereafter, could not remember how the gun fired. Plaintiff also introduced testimony that a bolt was missing from the office chair in which he had been sitting, inferring that the chair may have broken and that the gun may have discharged as he fell. The trial court, however, rejected a finding submitted by plaintiff on this issue.

Testimony at trial was conflicting concerning whether a motive existed for the shooting. No suicide note was found. Dr. Payton testified that plaintiff did not fit the pattern of a middle-aged male suicide, and there was no history of prior depression. Plaintiff told Drs. Hester and Payton that he had been worried he might lose his job if the company were sold.

A firearm's expert, Max Courtney, identified the pistol as a .38 revolver, and testified that he could not give a definite opinion as to how the gun was fired, that he was not certain the gun was discharged by pulling the trigger, and that the hammer block mechanism was only marginally working. Courtney testified that it was extremely difficult to fire the gun without pulling the trigger.

Plaintiff testified that he had purchased the gun several years prior and kept it because it was his responsibility to answer alarms at the business and, at times, he was required to go to the warehouse at night and weekends when the building was deserted. Other executives of plaintiff's company were also on the list of employees to be called when an alarm went off. Plaintiff's employer did not require him to possess a gun, but was aware that certain employees, including plaintiff, kept a handgun. Plaintiff also testified that he took the pistol with him when he went on vacations and, at times, he kept it in his car at home when there had been burglaries reported in his neighborhood. Plaintiff's wife testified that she did not like the gun in her house and had requested that her husband keep it elsewhere.

Plaintiff testified that he was not told by his employer to obtain a gun. He also stated that, since the alarm system of his company had been replaced, he had not had an occasion to use the gun. There was no company policy regarding the possession of firearms by employees. Plaintiff testified that possession of the gun, while not prohibited by his employer, was not a requirement of the job and that it was not normal practice of employees of the company to carry weapons. However, plaintiff also testified that he had the gun because of work.

The trial court adopted findings of fact and conclusions of law upholding plaintiff's claim for worker's compensation benefits. Specifically, the court found that plaintiff did not intend to shoot himself and that "[t]he gun accidentally discharged while plaintiff was cleaning it, wounding him in the face."

Defendants contend that the event was an attempted suicide. We disagree. There was sufficient evidence upon which the trial court could have found that plaintiff did not intend to commit suicide. Defendants recognize that, in worker's compensation cases, there is a presumption against suicide and that suicide is an affirmative defense which the defendants have to prove. See Medina v. New Mexico Consolidated Mining Co., 51 N.M. 493, 188 P.2d 343 (1947). Medina states, "This presumption, though not conclusive, is sufficient unless rebutted by substantial evidence, to support an award for compensation." Defendants contend that there was substantial evidence to rebut the presumption and, accordingly, contend that the trial court erred in not finding that plaintiff intended to commit suicide.

Defendants' evidence supporting suicide was that the gun was in contact with plaintiff's skin (physicians' notes that the wound was stellate and expert's opinion that only a contact shot would yield a stellate wound), plaintiff pulled the trigger (expert's opinion that this was most likely way that gun discharged), plaintiff said he tried to commit suicide (his nodding to doctors when they asked that question), and plaintiff had a motive to commit suicide (his worry over the sale of the business and loss of his job). Plaintiff controverted each of these items. The evidence that there were multiple stellate wounds in both the roof and floor of the mouth cast doubt on the expert's knowledge of the types of flesh wounds which shots from different distances produce. The expert really did not know how the gun fired. There was evidence that plaintiff did not understand the doctors when they asked him about the suicide attempt. Moreover, there was abundant evidence that plaintiff never expressed a reason to commit suicide, that he was happy and relaxed, that he did not point the gun in the right place to commit suicide, that he did not leave a suicide note, and that he did not fit the pattern of a typical middle-aged man attempting suicide. Finally, defendant's purported motive evidence concerning the sale of the business was shown not to have crossed plaintiff's mind. This evidence is similar to the evidence in the Medina case in which the Supreme Court held that a question for the fact finder was presented.

Here, too, the question was one for the trial court. As stated in Sanchez v. Homestake Mining Co., 102 N.M. 473, 697 P.2d 156 (Ct.App.1985):

This court is bound to view the evidence in the light most favorable to support the trial court's findings * * * and to disregard all evidence unfavorable to that finding * * *. It is for the trier of fact to weigh the testimony, determine the credibility of the witnesses, reconcile inconsistent statements of the witnesses, and determine where the truth lies. * * * The appellate court may not reweigh the evidence * * * nor substitute its judgment for that of the trier of fact. [Citations omitted.]

When viewed in the appropriate manner, there was sufficient evidence upon which the trial court could find that plaintiff did not attempt to commit suicide because the evidence and inferences therefrom conflicted.

Given that there was sufficient evidence upon which the trial court could find attempted suicide, there are only two remaining possibilities to explain this otherwise unexplained event: either plaintiff accidentally shot himself while finishing his cleaning of the gun and putting it away, or he shot himself while horsing around with the gun after he cleaned it. As the discussion...