La Rue v. El Paso Natural Gas Co.

• Decision Date: 17 March 1953
• Docket Number: No. 5596,5596
• Citation: 57 N.M. 93,1953 NMSC 17,254 P.2d 1059
• Parties: LA RUE v. EL PASO NATURAL GAS CO. et al.
• Court: New Mexico Supreme Court

Page 1059

254 P.2d 1059

57 N.M. 93

LA RUE v. EL PASO NATURAL GAS CO. et al.

No. 5596.

Supreme Court of New Mexico.

March 17, 1953.

Hodges, Hodges & Hodges, Silver City, H. Vearle Payne, Lordsburg, for appellants.

Woodbury, Shantz & Woodbury, Silver City, for appellee.

McGHEE, Justice.

The claimant (appellee) was awarded 25% disability compensation in New Mexico for an injury received in Arizona while returning from his place of work, during working hours, in a company pickup truck which he had boarded for return to a private car in New Mexico, and in which he had ridden that morning from his home in Arizona. The transportation in the pickup or another company truck was a regular incident of employment of the crew in which he worked and such incident had continued for a considerable period of time. Claim for conpensation was first filed with the Arizona Industrial Commission and by it denied on a finding the claimant 'did not receive an injury arising out of and in the course of his employment,' but it is clear he was injured during a time for which he wad drawing pay from the employer. Claim was later filed in New Mexico asking for an award under our Workmen's Compensation Act for the same injury.

The claimant was a pipe stabber on a pipe line built by the employer through New Mexico and Arizona and into California. He was employed in New Mexico and worked in this state for some time, and had worked on the line in New Mexico the day of his injury from 7:00 A.M. until about 10:30 A.M. when the stabbing crew crossed the state line into Arizona. The work proceeded in Arizona for about one-half mile when work ceased because of a high wind. After waiting until about 2:00 P.M. for the wind to subside, the foreman announced work would be stopped for the day and they would return home. They were paid for eight hours that day.

A truck equipped with a dog house to protect the men from the weather and seats for their accommodation was usually used for the transportation of the workmen, but it was not available when the foreman decided the men would go home, and such foreman ordered as many as could 'pile on' to get on the pickup and he would take them. With the foreman driving the pickup the claimant and his working partner rode the fenders for lack of room elsewhere, bracing their feet on the bumpers on their respective sides of the car. When the pickup reached the Arizona-New Mexico line it encountered a fence and was stopped at a gate which claimant stepped off to open. He stepped off on a rock with one foot which threw him off balance, and he suffered the back injury for which compensation was sought.

Early that morning claimant and his work partner had traveled from their places of residence in Arizona to a point in New Mexico where a road left the highway and went to the right of way of the employer where the work was to commence. A rule of the employer forbade any employee parking a car on its right of way, and employees traveling to work part of the way in private cars would wait for and catch the company truck which came regularly from Lordsburg carrying the major portion of the crew from that town. It was on the return trip to this car that the claimant was being transported in accordance with regular employer practice when he received his injury.

The claimant asserts his right to prosecute this action in New Mexico under the first paragraph of sec. 57-933, Supp. to N.M.S.A., 1941 Comp. sec. 1, ch. 14, Laws of 1949, which reads:

'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 defendants (appellants here) first invoke as a defense the second paragraph of sec. 57-933, supra, which reads:

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

They say the crew in which the claimant worked had completely finished its tasks in New Mexico and had been permanently assigned to Arizona when they crossed the state line, and further, they began paying compensation insurance on the claimant to the Arizona Industrial Commission as of twelve o'clock noon on the day of his injury.

There is no question but that the claimant and his crew crossed into Arizona as claimed, that there was no more work on the pipe line for them to do in New Mexico, and the defendants began paying compensation on the Arizona work as claimed; but they brush off too lightly the fact as an incident of claimant's employment he was furnished transportation from the parked private car to the place of work, and there returned in the employer's truck at the close of each work day. The evidence shows it was approximately two and one-quarter miles from the place where work stopped on the day of the accident by the route of travel over rough, rocky country back to the private car, so the permanent transfer from New Mexico to Arizona was not effective until the claimant was returned to where he had left the private car in this state on his last day of work in New Mexico.

In this state where transportation is furnished by an employer to an employee engaged in a hazardous occupation as an incident of his employment, an injury sustained while being so transported is compensable under our Workmen's Compensation Law. Barrington v. Johnn Drilling Co., 1947, 51 N.M. 172, 181 P.2d 166. The defendants do not assert the claimant was not injured in the course of his employment in a hazardous occupation if suit under the New Mexico Workmen's Compensation Act could be maintained after the denial of the claim by the Arizona Industrial Commission.

The next ground urged for a reversal is the denial of compensation by the Arizona Industrial Commission for the identical injury for which compensation was awarded below bars the later action in New Mexico under the full faith and credit clause of the United States Constitution. There is no question but that an award of the Arizona commission not set aside or modified on review by the Arizona Supreme Court has the effect of a judgment of a court of general jurisdiction in that state. Doby v. Miami Trust Co., 1931, 39 Ariz. 228, 5 P.2d 187.

The principal authority relied on in support of the contention the action could not be maintained in New Mexico is Magnolia Petroleum Co. v. Hunt, 1943, 320 U.S. 430, 64 S.Ct. 208, 88 L.Ed. 149, 150 A.L.R. 413, where it was held that one employed in Louisiana who was injured in Texas, and who had secured an award in the latter state which he later disavowed, could not maintain a suit in Louisiana to secure compensation for the same injury, although Louisiana permitted such recovery. The Court there held the full faith and credit clause prevented such action.

The claimant acknowledges the Magnolia case so held, but says the force of such decision was destroyed by the later case of Industrial Commission of Wisconsin v. McCartin, 1947, 330 U.S. 622, 67 S.Ct. 886, 91 L.Ed. 1140, 169 A.L.R. 1179. In the latter case one employed in Illinois to work in Wisconsin received an eye injury in the latter state. The statutes of each state protected him in each state. The workman filed claims for compensation in both states, and settled the claim in Illinois for a stated amount under stipulation he would not be prejudiced in prosecuting his claim in Wisconsin, and such provision was contained in the award. The employer and his insurer pleaded the Illinois settlement in bar of the claim before the Wisconsin Industrial Commission. The Wisconsin commission awarded compensation, but gave credit for the amount of the Illinois award. The Circuit Court set aside the award on the authority of the Magnolia case, and on appeal the Supreme Court of Wisconsin affirmed the lower court on the same ground. 1946, 248...