Southwestern Portland Cement Co. v. Simpson

• Decision Date: 19 June 1943
• Docket Number: No. 2654.,2654.
• Citation: 135 F.2d 584
• Parties: SOUTHWESTERN PORTLAND CEMENT CO. et al. v. SIMPSON.
• Court: U.S. Court of Appeals — Tenth Circuit

135 F.2d 584 (1943)

SOUTHWESTERN PORTLAND CEMENT CO. et al. v. SIMPSON.

No. 2654.

Circuit Court of Appeals, Tenth Circuit.

April 30, 1943.

Rehearing Denied and Opinion Modified June 19, 1943.

COPYRIGHT MATERIAL OMITTED

Pierce Rodey, of Albuquerque, N. M. (Rodey, Dickason & Sloan, of Albuquerque, N. M., on the brief), for appellants.

Edwin L. Swope, of Albuquerque, N. M. (W. A. Keleher and Theo. E. Jones, both of Albuquerque, N. M., on the brief), for appellee.

Before PHILLIPS, BRATTON, and MURRAH, Circuit Judges.

PHILLIPS, Circuit Judge.

Alice E. Simpson¹ commenced this action against the Southwestern Portland Cement Company² in a district court of the state of New Mexico to recover benefits under the New Mexico Workmen's Compensation Act³ for the death of her husband, John E. Simpson. The action was removed to the United States District Court. From a judgment in favor of the claimant, the Cement Company has appealed.

In its answer the Cement Company set up two defenses (1) that Simpson's injuries were not caused by an accident arising out of and in the course of his employment, and (2) that Simpson's injuries were occasioned by intoxication and were, therefore, not compensable under the Act.⁴

The issue raised by the first defense was submitted to the jury by special interrogatory No. 1, reading: "At the time of the accident in which the decedent, John Ernest Simpson, met his death, was he performing services arising out of and in the course of his employment?" The jury answered in the affirmative.

The evidence with respect to the issue raised by the first defense is free from substantial conflict and it established these facts:

John E. Simpson was employed by the Cement Company as a cement salesman from February, 1936, until his death on September 5, 1941. He resided at Albuquerque, New Mexico. His sales territory was a section of the state of New Mexico. In performing his duties as salesman, he traveled in a Chevrolet automobile furnished by the Cement Company. His duties consisted mainly of soliciting cement purchases from dealers and contractors. He was not required to observe fixed hours of employment or a fixed schedule of travel. He was free to exercise his own judgment and discretion in covering his territory. He was a competent and successful salesman. He received a salary of $260 per month. The Cement Company reimbursed him for traveling expenses, for maintenance while away from home, and for expenditures incurred for meals, liquors and other entertainment furnished prospective customers at hotels and night clubs.

As a part of his duties, Simpson was required to attend "highway lettings," which occurred from time to time in Santa Fe, New Mexico, where the New Mexico State Highway Department received competitive bids from contractors for highway construction jobs and awarded contracts. The contractors and salesmen of products used in highway construction work usually assembled the day before the actual award of the contract at the La Fonda and De Vargas Hotels in Santa Fe. The contractors, with the assistance of the salesmen, prepared their bids and both contractors and salesmen attended the actual "letting" on the following day. Most of the salesmen and contractors congregated at the La Fonda. The salesmen gave the contractors prices on products, freight rates, and other data, and otherwise assisted the contractors in preparing their bids. During the afternoon and night preceding a "letting" there was much social intercourse and drinking of intoxicating liquor. From about noon of the day preceding the "letting" until the bids were received and the contract awarded, the salesmen were constantly on duty. Competition between salesmen was keen and it was a general practice for salesmen to withhold their final price quotations as long as possible. It was not unusual when the bar closed at the La Fonda at midnight for the contractors and salesmen to go to night clubs in and near Santa Fe and there continue their negotiations and their social intercourse. One of these night clubs was known as the Trianon.

Simpson was required to be on duty at Santa Fe from about noon of the day before a "letting" until the contract was awarded on the following day. He was also expected to attend the Highway Department session at which the contracts were let. Simpson's primary object in attending the "lettings" was to sell cement to the successful bidder. But it was also part of his duties to promote future sales to other contractors, by assisting them in preparing their bids, furnishing them with cement prices, freight rates, and other data, and by generally creating and fostering their good will toward the Cement Company.

On September 5, 1941, a highway "letting" was to be held in Santa Fe. Salesmen, contractors, and others arrived the day before. Most of them gathered at the La Fonda. On September 4, Simpson left his home in Albuquerque, after telling his wife he was going to Santa Fe to attend a "letting." He took his typewriter, suitcase, and a brief case containing data respecting cement and freight rates and also blank contracts. He arrived at the La Fonda in Santa Fe about 1 P. M., September 4, and engaged a room. Thereafter, he appeared in the lobby of the hotel and began talking business with prospective customers. He spent the entire day and evening in the hotel fraternizing with the contractors and other salesmen, talking, drinking, and eating with them. Between 8 P. M. and 11 P. M., he had dinner in the New Mexican Room of the La Fonda. A contractor and another salesman were seated with him at the same table. Other tables were occupied by other contractors and salesmen. The salesmen and contractors moved from one table to another and carried on business negotiations. Simpson spent his evening eating his meal and mingling with the other parties present.

Between 10:30 P. M. and 11 P. M., Simpson joined Henry Thygesen, an important contractor, who had been awarded several highway contracts, James Ryan, another contractor, Roy Doty, a salesman and several others in the cocktail room. This group broke up a short time later and Simpson went to the hotel lobby. At 12:20 A. M., September 5, Doty saw Simpson in the lobby talking to three Indians who were apparently attempting to sell him some jewelry. Simpson asked Doty if he wanted to go to the Trianon with him, and Doty replied that he was going to bed. Simpson stated that he intended to remain in the lobby until some one came along who desired to go to the Trianon.

It had been Simpson's practice theretofore to contact and entertain contractors at the Trianon and there continue his efforts to promote cement sales.

At about 6:30 on the morning of September 5, 1941, Simpson was found dead in his automobile which was impacted against a corner of a building near U. S. Highway 85. His death was caused by a fractured skull and a broken leg. The automobile tracks indicated that the automobile was traveling in a southerly direction when it left the highway on the left hand side. The right front tire on the automobile was partially flat. The building where the accident occurred is located about one and a half miles south of Santa Fe and about a block and a half south of the Trianon. There was another night club south of the point where the accident occurred. Simpson's brief case, containing cement data, was found in the automobile. A typewriter, a brief case, and an unpacked Gladstone bag were found in his hotel room. His bed had not been slept in. There was no direct evidence as to what Simpson did between 12:20 A. M. and the time of the accident on the morning of September 5.

At the close of all the evidence, the Cement Company interposed a motion for a directed verdict in its behalf. The motion was denied. The trial court, in part, instructed the jury as follows: "If you find in this case that at the time of the accident, Ernest Simpson, was on his way home from a trip made for and in the interests of his employer, then you will conclude that Ernest Simpson's death arose out of and in the course of his employment. * * *"

Counsel for the Cement Company excepted thereto on the ground that there was no evidence warranting the jury in finding that Simpson was on his way to his home in Albuquerque at the time of the accident.

The Cement Company also excepted to the refusal of the court to give its requested special interrogatory No. 2, reading: "Were the injuries resulting in the death of John Ernest Simpson caused by an accident arising out of and in the course of his employment?"

Section 57-906, N.M.S.A.1941, provides as prerequisites to the right to compensation that (1) the injury to or death of the employee shall be proximately caused by an accident arising out of and in the course of his employment, and (2) that at the time of the accident the employee shall be performing services arising out of and in the course of his employment.

It is well settled that where a salesman suffers a highway accident while traveling by automobile to or from a place where his duties require him to go, the accident arises out of and in the course of his employment.⁵

The burden was upon the claimant to establish by evidence that Simpson's death was proximately caused by an accident arising out of and in the course of his employment and that the accident occurred while performing services arising out of and in the course of his employment. But when she introduced proof of facts raising a natural and reasonable inference that the accident arose out of and in the course of his employment and occurred when Simpson was performing services arising out of and in the course of his employment, the burden then rested upon the Cement Company, it having denied those facts, to show the contrary.⁶

Where there is substantial evidence that the death of an employee resulted from accident and that the accident occurred during his hours of work, at a place where his duties required...