Salazar v. City of Santa Fe

• Decision Date: 10 November 1983
• Docket Number: No. 7191,7191
• Parties: Consuelo B. SALAZAR, Personal Representative of the Estate of Santiago D. Salazar, Deceased, Third-Party Plaintiff-Appellee, v. CITY OF SANTA FE, a municipality, and Western Insurance Company, Third-Party Defendants-Appellants.
• Court: Court of Appeals of New Mexico

Page 1321

692 P.2d 1321

102 N.M. 172

Consuelo B. SALAZAR, Personal Representative of the Estate

of Santiago D. Salazar, Deceased, Third-Party Plaintiff-Appellee, v. CITY OF SANTA FE, a municipality, and Western Insurance

Company, Third-Party Defendants-Appellants.

No. 7191.

Court of Appeals of New Mexico.

Nov. 10, 1983.

Certiorari Quashed Jan. 2, 1985.

George M. Scarborough, Santa Fe, for third-party plaintiff-appellee

Randolph B. Felker, Santa Fe, for third-party defendants-appellants.

OPINION

LOPEZ, Judge.

The defendants, the City of Santa Fe and Western Insurance Company, appeal a judgment awarding death benefits to the plaintiff under the New Mexico Workmen's Compensation Act. We affirm.

This appeal presents three issues for our determination: (1) Whether the accidental death arose out of and in the course of the decedent's employment with the City of Santa Fe; (2) the issue of intoxication; (3) the issue of seat belts.

The trial court entered the following pertinent findings of fact:

1. Santiago D. Salazar was an employee of Defendant City of Santa Fe at the time of his death on July 8, 1977, and was earning $940.00 per month.

2. At the time of his death he was married and had as dependents, his wife, Consuelo B. Salazar and two minor children. The wife has remained unmarried to date.

3. Salazar's employment with the City of Santa Fe required him to have an assigned City pick-up and keep it at his house at all times when he was not at the city yards located on Siler Road, City of Santa Fe, New Mexico. He was on call at all times to perform services for the employer, day or night receiving no additional pay therefore. The assignment of this vehicle was for the benefit and convenience of his employer, and incident to the employment.

4. He lived southwest of the city limits of Santa Fe in an area known as Acres Estates. There were two routes to get from the city yards to his house; one route was to go northwest on Siler and then turn southwest on Agua Fria Road to Acres Estates, the other route was to go southwest on Siler Road to Cerrillos Road then southwest on Cerrillos Road to Airport Road then west to Acres Estates. There was no more than 300 feet difference in the length of the routes.

5. On July 8, 1977, at approximately 5:00 p.m. Patrick Romero, Juan I. Gonzales, both supervisors, one Joseph Martinez, and Salazar split a six pack of beer at the city yards while discussing city business. Salazar had one beer. This was customary and permitted. The City Manager and other department heads also occasionally would retire to local bars for alcoholic refreshments before proceeding on their way home driving assigned City vehicles.

6. A severe rain/hail storm struck the southwest area of Santa Fe on July 8, 1977, at approximately 6:30 p.m. and continued until after 9:00 p.m. that night.

7. Between 6:30 p.m. and 7:00 p.m. Salazar locked the security gates at the city yards and in his assigned vehicle, followed Gonzales and Martinez, also in an assigned city vehicle, to Henry's Hamburgers at the east end of Siler Road, the street which was in front of the city yards. Instead of entering Henry's, they went next door to Ramon's Bar.

8. By 8:30 p.m., Salazar, Gonzales, and Martinez had each consumed two beers. Gonzales and Martinez, in an assigned city vehicle left at that time. Salazar remained until almost 9:00 p.m. At 8:30 p.m. when Gonzales left, he stated Salazar did not appear to be drunk and was not bleary eyed.

9. Salazar left Ramon's and started for home in his assigned city pick-up shortly before 9:00 p.m. He drove west on Siler Road then south along Agua Fria Road towards his home. The rain storm was still in progress.

10. Salazar was involved in an auto accident at a point on Agua Fria Road between the city yards and his home. The pick-up Salazar collided with was parked heading south, partly in the southbound lane of traffic and had no operating lights or reflectors at the time. Salazar died as a direct result of injuries sustained in the collision.

11. Salazar's death occurred as a natural and direct result of the accident while he was acting within the scope of his employment. He had returned to the course and scope of his employment and at the time of the accident he was acting incident to his employment.

12. Claims of the City that Salazar was driving while intoxicated or acting contrary to city rules or regulations are not supported by competent evidence. The analytical toxicologist's testimony expressed doubt as to results of tests because of mishandling and mislabeling of specimens.

13. The actions of Salazar regarding his personal comfort deviation were actions customarily followed by supervisory personnel and higher city officials during months preceeding [sic] his death.

14. The proximate and contributing causes of the accident were: (1) the negligent parking of the other pick-up upon the highway; (2) no lights or reflectors; (3) the heavy rain storm in progress.

15. The evidence was insufficient to determine that Salazar was intoxicated at the time of and immediately preceeding [sic] the collision which resulted directly and proximately in his death.

Although this appeal is governed by NMSA 1978, Crim., Child.Ct., Dom.Rel. & W/C App.Rules (Repl.Pamp.1983), which no longer require that specific findings be challenged as was provided in NMSA 1978, Civ.App.R. 9m(2) (Cum.Supp.1982), defendant has challenged Findings 12 and 15, and in its first point argues the incorrectness of Finding 3.

Despite the lack of any provision in the new appellate workmen's compensation rules regarding "challenges" to the findings, we are nevertheless bound, of course, to the rules of appellate review that require the reviewing court to consider only the evidence that supports the trial court's findings, Schober v. Mountain Bell Tel., 96 N.M. 376, 630 P.2d 1231 (Ct.App.1980); to view the evidence most favorable to the workman, Mirabel v. Robert E. McKee, General Contractor, Inc., 77 N.M. 213, 421 P.2d 127 (1966); to avoid weighing the evidence or determining credibility of witnesses, Perez v. International Minerals & Chemical Corp., 95 N.M. 628, 624 P.2d 1025 (Ct.App.1981). We will not substitute our judgment for that of the trial court. Ideal Basic Industries, Inc. v. Evans, 91 N.M. 460, 575 P.2d 1345 (1978). With these rules of review in mind, we address defendant's points on appeal.

ISSUE NO. 1. WHETHER ACCIDENTAL DEATH AROSE OUT OF AND IN THE COURSE OF DECEDENT'S EMPLOYMENT WITH THE CITY OF SANTA FE.

The defendants challenge the decision of the trial court on the basis that the accident which led to the decedent's death was an ordinary risk which would have been experienced by any workman and did not arise out of or in the course of his employment with the City of Santa Fe.

At the outset we disagree with the defendants. Nevertheless, we shall set out the pertinent New Mexico law applicable to this case.

In Edens v. New Mexico Health & Social Services Dept., 89 N.M. 60, 547 P.2d 65 (1976), our Supreme Court summarized the rulings of several "special mission" cases, recognizing that accidental injuries occurring during such special missions are considered to have occurred in the course and scope of the worker's employment. The case before us is not a true "special mission" case; it falls into the case category of an employee's "deviation" from the course and scope of his employment. However, to the extent that Salazar was permitted to drive a city vehicle to and from work, the language in Edens, quoting from Rafferty v. Dairymen's League Co-op Ass'n, 16 N.J.Misc. 363, 200 A. 493 (Work.Comp.Bur.1938), is pertinent to this case:

An employe, authorized or required to use an automobile by his employer in the fulfilling of his contract of service, is still within the course of his employment while driving from the point of last call to his home where the car is garaged * * *.

Defendants contend that we are compelled to reverse because of our decision in Carter v. Burn Constr. Co., Inc., 85 N.M. 27, 508 P.2d 1324 (Ct.App.), cert. denied, 85 N.M. 5, 508 P.2d 1302 (1973). We do not agree. Carter was a case in which we were called upon to review a summary judgment granted to defendants upon the showing that an employee, who was required to drive a company truck home, left work some time before 5:30 p.m. when he arrived at a bar, and attempted to leave the bar around 10:00 p.m. Fellow employees who had spent the night with him thought he was too intoxicated to drive. About 10:15 p.m., the workman was killed when his truck went out of control, rolled over and burned. Those were the undisputed facts upon which we held summary judgment to be proper. The decedent's "major deviation * * * because of its duration in time or because of its nature, or both," was said to be, as a matter of law, an abandonment of employment. 85 N.M. at 30, 508 P.2d 1302.

When the present case was earlier before this court and thence upon certiorari, Justice Riordan, writing for the Court, agreed that the facts of this case were not amenable to determination, as a matter of law, that Salazar had abandoned his duties. The Court said, 97 N.M. at page 766, 643 P.2d 851:

In this case, a number of material facts are in dispute such as the amount of beer consumed by Salazar, his degree of intoxication, and whether he followed a direct route home. These are questions of fact which must be resolved by the trial court before it or the Court of Appeals can determine whether Salazar abandoned his employment by deviating substantially from its course and scope, or whether the deceased had re-entered the scope of his employment when the accident occurred.

City of Santa Fe v. Hernandez, 97 N.M. 765, 643 P.2d 851, 855 (1982).

In Carter, the trial court ruled on undisputed facts that a 5-hour deviation and decedent's undisputed intoxication constituted abandonment of employment as a matter of law. In McKinney v. Dorlac, 48...