Nelson v. Eidal Trailer Co.

• Decision Date: 18 May 1954
• Docket Number: No. 5618,5618
• Citation: 58 N.M. 314,270 P.2d 720,1954 NMSC 51
• Parties: NELSON et al. v. EIDAL TRAILER CO. et al.
• Court: New Mexico Supreme Court

Page 720

270 P.2d 720

58 N.M. 314

NELSON et al. v. EIDAL TRAILER CO. et al.

No. 5618.

Supreme Court of New Mexico.

May 18, 1954.

Hannett & Hannett, W. S. Lindamood, Albuquerque, for appellants.

Simms, Modrall, Seymour, Simms & Sperling, George T. Harris, Jr., Albuquerque, for appellees.

SADLER, Justice.

The plaintiffs, James H. Nelson and Emma Nelson, who are appellants in this Court, seek the review of a judgment of the district court of Bernalillo County denying them workmen's compensation for the death of their son, Tommy Nelson, said to have resulted from injuries suffered by him while in the employ of the defendant, Eidal Trailer Company, hereinafter referred to as the Trailer Company. Its insurer, Mountain States Mutual Casualty Company, is joined as a defendant. They claim exemption from liability, contending that decedent, at the time of his death, was in the employ of Albert H. Kaiser, an independent contractor, thus denying compensation for his death as an employee of the defendant. Having found the facts favorably to the claim of defendants, the trial court rendered judgment against plaintiffs and dismissed their complaint. The present appeal is prosecuted from that judgment.

At the time of decedent's death the defendant, the Trailer Company, a New Mexico corporation, having its principal place of business in Albuquerque, New Mexico, was engaged in the manufacture of trailers of a type which permitted their loading on a large semi-trailer to be delivered to the ultimate consumer by means of the semi-trailer and a tractor truck. A contract existed between the Trailer Company and Albert H. Kaiser under which the latter was to receive a flat fee for the loading of small pole trailers upon a large flat bed trailer, on which the small trailers were to be transported and delivered by the Trailer Company to their destination. In the performance of his contract Kaiser hired and himself paid such men as he considered necessary for performance of the work of loading the trailers. Neither thr Trailer Company, nor its agents or employees, directed or were authorized to direct the method of loading the trailers. On June 29, 1951, at or near the Trailer Company's place of business in Albuquerque, Tommy Nelson, son of the plaintiffs, sustained personal injuries which resulted in his death on July 9, 1951.

In the course of Kaiser's performance of his contract with the Trailer Company, he engaged the services of a helper by employing one Clarence Moore. Shortly prior to June 29, 1951, Kaiser requested Moore to load such trailers as it might become necessary to load during a period of time he planned to be absent from Albuquerque. Pursuant to this request on Moore so made by Kaiser, the former on June 29, 1951, undertook to load some trailers. Still moving in compliance with the request made upon him by Kaiser, which also embraced instructions to assemble and direct a crew of from two to three men in loading the trailers, Moore requested Tommy Nelson to assist when necessary in the loading of the trailers. It was pursuant to this request on Moore by Maiser that Tommy Nelson accompanied Moore to the premises of the Trailer Company on June 29, 1951.

In doing the work he did, Moore was an employee of Albert Kaiser. Tommy Nelson, if he was ever employed by anyone, was likewise an employee of Kaiser, but neither Moore nor Kaiser, or Nelson were employees of Eidal Trailer Company or Eidal Manufacturing Company. Furthermore, the said Albert Kaiser not only was not an employee of Eidal Trailer Company, but rather was an independent contractor engaged in the performance of an independent contract under his agreement with Eidal Trailer Company. And by the same token none of Kaiser's employees, including Tommy Nelson, son of the plaintiffs, on account of whose death this claim for compensation is prosecuted, were employees of Eidal Trailer Company.

The court, having found the foregoing facts, concluded as a matter of law that the agreement under which Kaiser loaded trailers manufactured by Eidal Trailer Company was not a contract of employment between the two; that rather it gave Kaiser the status of an independent contractor in his relationship to Eidal Trailer Company, thus denying him character as an agent, servant, or employee of the Trailer Company. The court further concluded that by the same token and for the same reason, Tommy Nelson was not an employee of Eidal Trailer Company within the purview of the Workmen's Compensation Act of the State of New Mexico. 1941 Comp. Sec. 57-901 et seq. Hence, as the court went on to conclude, at the time of his injuries, neither he while living nor his survivors were entitled to any benefits under the Workmen's Compensation Act of the State of New Mexico. The findings and conclusions left the court but one alternative which was to dismiss the complaint seeking compensation. It is from that order that this appeal is prosecuted.

It is apparent from the findings made that the proper conclusions of law were deduced, putting us right back to a determination of sufficiency of the evidence to support the findings. Counsel for the plaintiffs present a vigorous challenge on this very point, strongly urging that we should hold as a matter of law on the evidence adduced that Kaiser was an employee and, for the same reason, that the decedent was an employee. Much of the evidence is set out in the plaintiff's brief and if it could be accepted at its face value there would be no question of our right and duty to pronounce the contract under which Kaiser operated one of employment. There is not room to doubt, had the court effected it as a basis for findings to that effect, it would have afforded ample support for them.

The trouble with declaring such a result here, however, is that there is other evidence by defendants which directly conflicts with that relied upon by plaintiffs and it is this testimony which the trial court saw fit to accept on the factual issue presented. Having so ruled, there is only one injury to which we need seek an answer, namely, whether the evidence presented by defendants supports the findings made. There can be but a single answer to that inquiry and it is that it does. Indeed, the evidence as a whole presents the situation often confronting us, viz., where the evidence is such that it would have supported findings either way on the decisive factual issue.

In the main the conflicting testimony, on the resolving of which in favor of defendants, the trial court based its findings, came from Albert H. Kaiser, with whom defendants contracted for the loading of the trailers on semi-trailers, witness for the plaintiffs, and one Clyde Mineau, former manager for the Trailer Company, testifying in its behalf. A fair sample of Kaiser's testimony on the subject follows:

'Q. Now, when you started this loading, did--was there anybody there, the first time you went out there, to tell you--show you how to load them, or anything like that? A. Yes, Mr. Mineau, and the Government men was there at the time of the first loading, to okeh the procedures of the way the load was loaded.

'Q. And were they there the second time? A. Not all the time. They would come and, various times, and then leave again.

'Q. Did they check on how you were loading it, during that time? A. That is right.

'Q. Did they ever ask you to make any changes in the method you were loading it? A. Quite a few of the times.

'Q. Did you have to load to meet their satisfaction? A. That is right.

* * *

* * *

'The Court: * * * You say they showed you how, the first time? A. Well, that is the general idea of it, yes.

'The Court: And then, the second time, at least, they were there? A. That is right.

'The Court: Did they make some changes in your method of loading the second time? A. Well, roughly, I would say yes.

'The Court: Did they ever, after that? A. A number of times after that. We have changed it.

'Q. Did they keep a check on you, every time that you loaded? A. Well, I would say that they did, because there was somebody there, the majority of the time, either starting, or the finishing of the load.

'Q. And did they, right through, up until the time in June, when Mr. Moore was to take over for you, did they keep a check on how you were loading? A. Well, yes.

* * *

* * *

'Q. Did--while you were out there, did you work under their supervision? A. Well, I suppose so. If things wasn't going like they wanted them to, they told me about it. * * *.'

Continuing on cross-examination, Kaiser testified:

'Q. Now, on this first occasion, had you had any prior experience in loading loads of that type? A. Not of that particular type, no.

'Q. And the instruction that you received, at that time, was more or less a check out, wasn't, it, on the arrangement of the trailers on the flatbed, and the securing of them, so that they would pass Government inspection? A. That is right.

'Q. On the occasion of these inspections that were--took place during the course of this loading, or after the loading, that was to the ultimate satisfaction of the Government inspector, was it not? A. Well, first, Mr. Mineau was checking on me, too, you know--to make sure that the trailers was in place, secured right, and then the Government inspector would inspect them, later.

'Q. Umbumm. Now, who had the final say on whether or not the trailers were loaded properly--The Government man? A. Well, to me, it was Mr. Mineau.

'Q. Did the Government man ever make any suggestions or directions as to how the trailer should be loaded or secured? A. Indirectly, yes.

'Q. You mean, he would tell Mr. Mineau, and Mr. Mineau would pass the information on to you? A. Yes.

'Q. So that made the Government inspector the man who said whether or not that trailer was fit to go out, or whether it wasn't? A. That is right.'

And as a fair sample of Mineau's testimony, we quote the following, to-wit:

'Q. Now, was there anything said or understood, about how...