Roan v. D. W. Falls, Inc.

• Decision Date: 26 August 1963
• Docket Number: No. 7240,7240
• Citation: 72 N.M. 464,1963 NMSC 154,384 P.2d 896
• Parties: Gene ROAN, for and in behalf of the statutory beneficiaries of Earl Wayne Roan, deceased, Claimant, Plaintiff-Appellee, v. D. W. FALLS, INC., Employer, and Commercial Insurance Company of Newark, New Jersey, Insurer, Defendants-Appellants.
• Court: New Mexico Supreme Court

Page 896

384 P.2d 896

72 N.M. 464

Gene ROAN, for and in behalf of the statutory beneficiaries of Earl Wayne Roan, deceased, Claimant, Plaintiff-Appellee, v. D. W. FALLS, INC., Employer, and Commercial Insurance Company of Newark, New Jersey, Insurer Defendants-Appellants.

No. 7240.

Supreme Court of New Mexico.

Aug. 26, 1963.

Modrall, Seymour, Sperling, Roehl & Harris, Frank H. Allen, Jr., Albuquerque, for appellants.

Bingham & Klecan, Albuquerque, for appellee.

MOISE, Justice.

This case requires that we interpret the first two paragraphs of Sec. 59-10-33, N.M.S.A.1953, reading as follows:

'If an employee who has been hired or is regularly employed in this state received personal injury by accident arising out of and in the course of such employment outside of this state, he, or his dependents in case of his injury or death, shall be entitled to compensation according to the law of this state. This provision shall apply only to those injuries received by the employee within six (6) months after leaving this state, unless prior to the expiration of such six (6) months period the employer has filed with the state labor industrial commission of New Mexico notice that he has elected to extend such coverage a greater period of time.

'The provisions of this section shall not apply to an employee whose departure from this state is caused by a permanent assignment or transfer.'

We proceed to a brief statement of the facts giving rise to the litigation. The defendant employer, D. W. Falls, Inc., a New Mexico corporation, with its principal place of business in Albuquerque, New Mexico, had a contract with the federal government to drill two observation holes near Mercury, Nevada. One Harold B. Doty was the superintendent on the job and had complete hiring and firing authority. He maintained an office from which he operated a contracting business of his own at 412 Virginia Street, S. E., Albuquerque. This office was cared for by Mrs. Doty who also made up the payroll and transmitted it to defendant employer at its office in Albuquerque where the pay checks were made out. Shortly before October 15, 1960, Earl Roan went to the office and inquired of Mrs. Doty if her husband 'needed some help.' Mrs. Doty informed Mr. Roan that she would see if Mr. Doty 'needed help' and told him to check back with her. Two or three days later, Mr. Roan checked back and Mrs. Doty told him that she had talked to her husband and that he needed help and had told her 'to send Mr. Roan to him.' She also told him what the pay scale was. Mr. Roan made his own arrangements for transportation to the job in a car with the wife of one of the other employees, and into which car he helped load some drill bits to be hauled to Nevada. He was paid no compensation for the trip. Upon arriving at the job site Mr. Roan was required to fill out security clearance papers. He was, however, issued a temporary badge and went to work immediately. If for any reason, he had not received security clearance, his employment would have been terminated. Living quarters were provided at the job site. Mr. Roan went to work on October 15, 1960, and worked continuously until some time in December, 1960, when one hole was completed and drilling tools became stuck in the second hole. The crew of which Mr. Roan was a member had no work to do and were accordingly laid off. They could have remained in the living quarters provided at Mercury. Mr. Roan, however, returned to Albuquerque. He drove employer's truck from Mercury to Albuquerque and was paid for 14 hours as a truck driver on December 18 and 19, 1960. After December 19, 1960, and until January 4, 1961, Mr. Roan was not paid for any work for employer, except for December 26 and 27 when he did some work at Mr. Doty's yard in Albuquerque. Some time after January 1, 1961 Mr. Roan received instructions to return to Mercury, Nevada, to work. Mr. Roan and three other workmen drove together from Albuquerque in a truck and a car. After January 4, 1961, Mr. Roan was continuously employed in Nevada until July 1, 1961, when he was killed in a truck accident there while in the course of his employment.

The trial court found that Roan had been hired in New Mexico in the fall of 1960; that he was 're-employed' in New Mexico in January, 1961; that he was not permanently assigned or transferred to Nevada, and concluded that by virtue of Sec. 59-10-33, N.M.S.A.1953, claimants were entitled to the benefits of the New Mexico Workmen's Compensation Act.

The defendants assert error by the trial court in making the findings which are the basis of the court's conclusion that defendants were liable. Accordingly, we are first faced with the question whether Earl Roan was 'hired' in New Mexico.

While recognizing that this court in the case of Franklin v. Geo. P. Livermore, Inc., 58 N.M. 349, 270 P.2d 983, stated that 'Evidently, the legislature desired to protect resident employees who were assigned by their employers to work outside of the state temporarily,' defendants assert that this is not such a situation since deceased was not a resident employee, was not regularly employed in this state, and was not temporarily working outside of the state.

That deceased was not regularly employed by defendant employer in this state is clear. The court found nothing to the contrary. As to whether or not defendant was a 'resident employee' is not so clear. The court found that he was 'hired' in New Mexico, and if he was, this being the requirement of the statute, he would be a resident employee as that term was used in Franklin v. Geo. P. Livermore, Inc., supra.

Defendants would have us apply a technichal and legalistic concept to the word 'hire.' They would have us determine where the employment contract was formally made. While they concede that in arriving at this determination the intention of the parties as evidenced by their acts and conduct, the nature of the business, the situation of the parties, and all material facts and circumstances including the place of performance, are to be considered, they assert it is clear that the contract of employment of Roan was entered into at the test site near Mercury, Nevada. They base their conclusions on the fact Roan was not put on the payroll until he arrived on the job; he was given no travel expenses and he had to arrange his own transportation; he was hired only for the one job; he was provided living quarters at the place where the work was to be performed; he had to have a security clearance to be regularly employed, and there was no acceptance of any offer of employment so as to make a binding contract until deceased arrived in Nevada at the job.

We are not convinced. We see no substantial difference in the facts here present and those considered in Franklin v. Geo. P. Livermore, Inc., supra. In that case the claimant was a resident of Hobbs, New Mexico. A driller representing the employer came to claimant's home in Hobbs and 'employed' him to work the night shift on a drilling rig in Texas. After a week he was discharged. Thereafter, another driller came to claimant's home and 'employed' him to work the day shift on the same well. While the report of the case does not disclose what was involved in the 'employing' it appears that it was customary for the drillers to hire anf fire 'rough-necks.' The claimant, together with other members of the crew, traveled back and forth from the rig in an automobile.

To our minds Earl Roan was just as certainly 'employed' in Albuquerque, by Mrs. Doty, acting for her husband, after having verified that he needed help, as was claimant in Franklin v. Geo. P. Livermore, Inc., supra. If Franklin had not reported to the job in Texas after the employment he would not have been paid, just as was true of Roan. No transportation was supplied or paid by the employer so far as the report discloses. That Roan had...