Wilson v. Rowan Drilling Co., 5244

• Decision Date: 16 September 1950
• Docket Number: No. 5244,5244
• Parties: WILSON et al. v. ROWAN DRILLING CO. et al.
• Court: New Mexico Supreme Court

Page 365

227 P.2d 365

55 N.M. 81

WILSON et al. v. ROWAN DRILLING CO. et al.

No. 5244.

Supreme Court of New Mexico.

Sept. 16, 1950.

Rehearing Denied Dec. 28, 1950.

Second Rehearing Denied Feb. 19, 1951.

John R. Brand, Hobbs, Seth & Montgomery, Santa Fe, Simms, Modrall, Seymour & Simms, Albuquerque, for appellants.

G. T. Hanners, Robert W. Ward, Lovington, for appellees.

Marion S. Church, Dallas, Tex., Tilley, Hyder & Law, Fort Worth, Tex., amici curiae.

BRICE, Chief Justice.

The above actions, for compensation under the Workmen's Compensation Act, 1941 Comp. Sec. 57-901 et seq., were brought separately by the widow and minor son respectively, of an employee of the defendant Rowan Drilling Company and its surety the United States Fidelity & Guaranty Company. They were consolidated and tried as one action with one judgment, from which this appeal has been prosecuted.

In this opinion reference will be made to the parties as follows: Claimant Mrs. Farley Wilson as 'Mrs. Wilson'; claimant Billy Roy Wilson as 'Billy Wilson'; the defendant Rowan Drilling Company as 'defendant'; and defendant United States Fidelity & Guaranty Company as 'the surety'.

Substantially all of the facts were stipulated, and upon these stipulated facts the court made its decision, in substance as follows:

On May 18, 1947, Roy Wilson (the deceased) was employed by defendant as a well driller in charge of a drilling crew composed of himself and four others, and at that time he, with his crew, was engaged in the drilling of an oil and gas well in Lea County, New Mexico, for defendant. Deceased's work was within the purview of the Workmen's Compensation Act and the defendant surety company was defendant's surety.

Because of the lack of housing facilities, Roy Wilson and the members of his crew resided in the city of Hobbs, about 30 miles from their place of work. Wilson and his crew worked the aftermoon shift, or tower, from four o'clock P. M. until midnight.

'3. That the compensation of Roy Wilson was based upon an hourly pay rate of $1.80 for his eight hour shift, as contrasted to the $1.20 to $1.25 per hour paid to the other crew members and that, at the time of the fatal accident, Roy Wilson's average weekly earnings were $92.50 per week.

'4. That it was the duty and responsibility of Roy Wilson, under his contract of employment as the driller in charge of such crew, to see that his crew was fully staffed and to see that such crew arrived at the drill site before four o'clock P. M. and remained there throughout their eight hour work period; and that it was the duty and responsibility of Roy Wilson, under his contract of employment as the driller in charge of such crew, to either transport himself and the members of his crew to and from the drill site or to arrange for their transportation by some other member of his crew.'

Roy Wilson had the authority and responsibility under his contract of employment to hire and fire the members of his crew. Under this authority he fired three members of the crew on May 16th and employed two others on May 17th, and on the morning of May 18th he employed another. The last mentioned employee (Tidwell) had no means of transportation and was advised by Wilson that he would pick him up and take him to the drilling site that afternoon. Wilson arranged with the workman Compton to furnish his car for this transportation, and on the afternoon of May 18, 1947, while Wilson and the four members of his crew were going from Hobbs to the drilling site over the usual travelled way in the Compton car, they collided with another vehicle which resulted in the deaths of Wilson and three of the members of his crew.

'8. That Roy Wilson had begun the performance of the duties of his employment when he hired the new man in the City of Hobbs on the morning of the fatal day, that he was then acting within the scope of his employment and in the furtherance of the business of his employer; and that he was engaged in the performance of the duties of his employment and in the furtherance of the business of his employer at the time of the fatal accident.'

'9. That the employer did not pay any mileage or other transportation allowance as such, but from the wage scale paid the deceased driller at the time of his death, said wage rate contained reimbursement to the driller for extra work performed by him in addition to his duties as driller at the site of the well; that upon an hourly basis, the compensation of Roy Wilson and the other members of his crew commenced when they arrived at the drill site at four o'clock in the afternoon and ended when they completed the midnight tower; that they were not paid any compensation for the time consumed in going to and from their homes in Hobbs to the drill site except for the additional compensation in this paragraph above mentioned; and although the employer did not dictate, supervise or in any way control the arrangements made by Roy Wilson and the members of his crew for their transportation to and from the drill site, the employer had knowledge of and acquiesced in the arrangements which had been made by Roy Wilson for the daily transportation of himself and his crew and the employer looked to Roy Wilson as part of his duties and responsibilities of his employment to see to it that a full crew arrived at the drill site each tower in time to start work at four o'clock.'

The collision that caused the death of Wilson was not due to any negligence of the defendant.

'11. That Farley Wilson, claimant in Cause No. 7031, is the surviving widow of the said Roy Wilson; that she was living with him at the time of his death and was actually dependent on him for support; and that no children had been born of their marriage.'

'12. That Billy Roy Wilson, claimant in Cause No. 7030, is the son of the said Roy Wilson by a former marriage; that he was approximately 13 years of age at the time of the death of the said Roy Wilson and was actually dependent upon him for support; that said minor dependent child resides with his mother, Mrs. W. B. Thompson, who appears in said cause as his next friend and who was formerly the wife of the said Roy Wilson.'

Funeral expenses in the amount of $150 and attorney's fees in the amount of $700 were allowed, to which no objection has been made.

Upon these facts the trial court concluded that Roy Wilson's death was accidental and arose out of and in the course of his employment; and that the claimants were entitled to workmen's compensation as provided by law. That the two claimants were entitled to only the combined award of compensation that would have been made to a surviving widow who was the mother of the dependent child, and not the separate compensation provided for in the statute in the cases where there was either no widow but a dependent child left, or where there was a dependent child and no widow left.

The court divided the compensation as follows: '(a) To Farley Wilson, dependent widow and claimant in Cause No. 7031, and to Billy Roy Wilson, dependent child and claimant in Cause No. 7030, collectively, 45 per centum of the average weekly earnings, but not to exceed $18.00 per week, for a period of 300 weeks, commencing May 18, 1947, and continuing, subject to the limitations of the Workmen's Compensation Act, for such period of 300 weeks; and that such compensation should be apportioned between the said Farley Wilson, widow, and Billy Roy Wilson, child, in the following manner: 40/65ths of such amount to Farley Wilson and 25/65ths of such amount to Billy Roy Wilson; and that Mrs. W. B. Thompson, mother of such child, should be appointed by the Court to receive the same for the benefit of the said Billy Roy Wilson.'

The defendant and the surety admit that under decisions of this court, the judgment of the district court is correct if the trial court's findings of fact numbers 4, 8 and 9 are supported by substantial evidence. See McKinney v. Dorlac, 48 N.M. 149, 146 P.2d 867; Barrington v. Johnn Drilling Co., 51 N.M. 172, 181 P.2d 166.

Findings of fact numbers 4, 8 and 9 are attacked upon the ground, as it is asserted, that they (or a vital portion of each) are not supported by substantial evidence. We have copied these findings in full for convenience.

The following part of finding No. 4 is attacked: '* * * and that it was the duty and responsibility of Roy Wilson, under his contract of employment as the driller in charge of such crew, to either transport himself and the members of his crew to and from the drill site or to arrange for their transportation by some other members of the crew.' (Appellants' emphasis.)

The court based finding No. 4 on the following stipulation of fact in the record: 'That it was his duty, the duty and responsibility of the man Wilson as the driller in charge of the crew to keep his crew fully staffed and to see that his crew arrived at the drill site at approximately 4:00 o'clock in the afternoon and remained there through their eight hour working period; that it was also his duty to either furnish his own car or to see that some other member of the drilling crew furnished a car pursuant to their arrangement, car pooling arrangement, to transport the entire crew to the drill site; that such practice is customary in the oil fields of Lea County, New Mexico, for the driller in charge of the crew to be responsible for maintaining a full crew and seeing that it arrives at the drill site; that this driller was paid approximately $1.80 an hour as compared to $1.20 or $1.25 an hour paid the other members of his crew--that is, approximately 20 per cent more.'

The only difference between the finding and the stipulation seems to be the added inference that the duty and responsibility of seeing that the crew was fully staffed and that they arrived at the drill site before four o'clock P. M. and remained there throughout their eight hour work period, arose out of his contract of employment. Now if the duty and...