Wilson v. Rowan Drilling Co.

SADLER, Justice (dissenting).

The very first enactment of a Workmen’s 'Compensation Act in New Mexico provided an express exception from liability on the part of the employer for injuries sustained by the workman while on the way to assume the duties of his employment or after leaving such duties, the proximate cause of which was not the employer’s negligence. The exception is provided by tbe italicized language appearing below taken from L. 1917, c. 83, § 12(1), to-wit: “The words ‘injuries sustained in extra-hazardous occupations or pursuits,’ as used in this act shall include death resulting from injury, and injuries to workmen, as a result of their employment and while at work in or about the premises occupied, used or controlled by the employer, and injuries occurring elsewhere while at work in any place where their employer’s business requires their presence and subjects them to extra-hazardous duties incident to the business, but shall not include injuries to any workman occurring while on his way to assume the dirties of his employment or after leaving such duties, the proximate cause of which injury is not the employer’s negligence.”

This exception was preserved in the revision of the law which took place with the enactment of L.1929, c. 113, appearing as section 12(1) thereof in almost the exact language of its first enactment. 1941 Comp. § 57-912 (12(1). It is the law today as it has been from the first adoption of the Workmen’s Compensation Act. In my opinion, the claim before us is made in the very teeth of this exception from liability. In order to escape it the majority must uphold findings of fact by the trial court resting on inferences deduced from the stipulated facts which cannot be supported as permissible.

Any consideration of the case necessarily begins with a recognition of two important and'undisputable facts, namely, (1) the employer was under no obligation to provide housing for its employees at the well site, and (2) the employer was under no obligation to transport or arrange for the transportation of its employees to and from the place where their work was carried on. When the stipulation is appraised in the light of these two important and admitted facts against a background of statutory immunity from liability for injuries to employees suffered while traveling to and from work, unless caused by the employer’s negligence, it is readily seen that there is left no basis whatever for the findings upon which the majority rest liability in the case at bar.

The claim was tried almost wholly on stipulated facts. The brief testimony taken following agreement on the stipulated facts concerned matters in no way pertinent to a decision on sufficiency of the evidence to support the controlling findings. So it is that the decisive question at issue is sufficiency of the stipulated facts to sustain in certain particulars three controlling findings made by the trial court. When analyzed, the three reduce themselves to the factual question: Did decedent’s death in the tragic accident involved take place under such circumstances as fairly place it within the exception from liability provided by 1941 Comp. § 57-912 (12(l) as one resulting from “injuries * * * occurring while on his way to assume the duties of his employment * * *, the approximate cause of which injury is not the employer’s negligence”?

It apparently was persuasively argued below, as it has been here, that because it was stipulated decedent as head driller had authority to “hire and fire” members of his crew whose arrival at the drill site at 4 p. m. daily (the hour for beginning work) it was his responsibility to enforce, and the further recitation therein of a car pooling agreement between decedent and members of his crew under which all rode to and from the job on a “share the ride” basis, he was placed under coverage of the Act throughout his travel to and from work, notwithstanding the exception from liability for injuries suffered during such period as provided by 1941 Comp. § 57-912 (12(Z). The paragraph of the stipulation which the majority admit is basis for the finding that decedent must transport or arrange transportation for himself and members of his crew as a duty and responsibility “under his contract of employment” being finding No. 4, will not fairly bear the addition as an inference of the language just quoted. It is treated by the majority as the basis for saying the decedent’s labors at the time of his death “arose out of and in the course of his employment.” This paragraph of the stipulation will not here be recopied since it is set out in full in the majority opinion. A reading and careful analysis of it is invited, however, for demonstrating the transparent reasoning employed by the majority to squeeze out of it this vital part of one of the basic findings upon which liability is made to rest.

But the weakness inherent in the effort to find support for the finding may be otherwise and abundantly demonstrated. If the stipulation could fairly he said to intend or mean what counsel persuaded the trial court to believe it does, as demonstrated by its finding No. 4, then we have this situation: The decedent as head driller had the “duty and responsibility * * * under his contract of employment,” wholly at his own expense, save for the meager additional compensation which the trial court in equal mistake and error found was' embraced in the driller’s higher wage scale, to furnish the car for transporting his crew, buy the gas and oil to propel it and suffer the wear and tear incident to its use, unless through persuasion or coercion he could minimize these costs by securing contribution of a car a portion of the time by some other crew member possessing one.

The sheer folly of an agreement on the part of a drilling foreman to make any such wholesale contribution to the expense of conducting his employer’s business is at once apparent and readily exposes it in true character, viz., as the arrangement between the driller and the members of his crew for the pooling of cars for riding to and from the job. Under it a number of workmen traveling daily to and from the same job rotate in furnishing a car on alternate days on a “share the ride” basis. Any effort to get more out of this paragraph of the stipulation than recitation of a “share the ride” arrangement between a group of workmen on the same job stretches the facts to the breaking point by imposing unthinkable burdens of expense on the driller under the facts found.

.The portion of finding No. 8 complained of as being without substantial support in the evidence recites that decedent: “ * * * 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.”

• The majority dispose of this claim of error in a summary manner by saying it is resolved adversely to defendant by their conclusion regarding finding No. 4. By the same token, having fairly demonstrated that their conclusion is wrong, the finding necessarily falls for lack of support. Furthermore, the mere fact that at the time of injury the work being done was “in furtherance of the business of his employer” does not support the conclusion that it “arose out of” his employment. Some injuries, even though suffered while engaged in work not in furtherance of employer’s interests, are compensable as arising out of the employment. Whether a given injury is compensable is not to be determined solely by a finding that at the time it was suffered the employee’s work was “in the furtherance of the business of his employer,” to use the language of the challenged finding.

Coming now to the portion of finding No. 9 complained of, we find the majority divide it into two parts for purposes of consideration. Part (a) is a finding that although the employer paid no mileage or other transportation allowance, as such, yet from the higher wage scale paid the deceased driller, found to have been $1.80 per hour as against $1.20 to $1.25 per hour paid other crew members, he was given reimbursement for the extra work performed by him in addition to his duties as driller at site of the well. Part (b) of finding No. 9 takes note of the portion of the stipulation which recites that, whatever the arrangements made between members of the drilling crew as to who furnished transportation, they “were of no concern to the employer” and that it in nowise directed same, save that the driller was charged with the responsibility of having his crew arrive on the job in time to go to work at 4 p. m. each day. This part of finding No. 9 further recites that, notwithstanding the employer’s complete lack of concern, control or supervision as to arrangements between members of the crew about their transportation, except to look to the deceased driller to see that his men arrived on the job in time to go to work; nevertheless, the employer knew of and acquiesced in the arrangement between Wilson, the driller, and other members of his crew for their daily transportation to' and from the well site.

The claim of insufficiency of the evidence to support part (a) will first be discussed. In my judgment not only is there not an iota of proof to support it, but whatever evidence the record contains that possibly could have a bearing on the subject tends strongly to support a directly contrary conclusion. It may be conceded, as a 'decision cited in the majority opinion affirms, Gallman v. Spring Mills, 201 S.C. 257 , 22 S.E.2d 715 , that there are exceptions to the general rule against liability for injuries suffered by an employee while going to and from work. One of them is expressed in our statute providing such immunity, namely, where the injury is due to the employer’s .negligence. 1941 Comp. § 57-912 (12(i). Still another is where the employer pays all or part of the cost of transportation as held in the Gallman case, supra. But the existence of these exceptions affords no justification for seizing upon the higher wage scale paid the head driller as support for a finding that it is reimbursement, in part, to him for services rendered in and about transporting himself and men to and from work. Obviously, there was no express promise to pay for this so-called “extra” service. The finding that it was a compensable service rendered the employer, rather than a purely personal arrangement between all members of the crew, the driller included, for their own comfort and convenience in daily getting to and from the job, is as weak and insupportable as the companion finding which seizes upon the driller’s higher wage scale in an effort to locate pay for the service the former finding, in effect, creates. Both are too weak to stand alone when challenged and must lean on each other for badly needed support in the evidence, otherwise lacking.

There is nothing unusual in paying a larger wage to the head driller than to the men working under him. He not only must supervise, hire, fire and “boss” the job generally but, in addition, as a well known fact which may be noticed judicially, he has in his care and keeping highly expensive drilling equipment often approximating more than $200,000 in value. Naturally, he gets and deserves larger pay than do members of his crew. It does not appear from the record that the wage of this head driller was any greater than the prevailing scale of wages paid head drillers in that locality, regardless of whether the men of his crew resided at the well site, or some miles away and required transportation, as in the case at bar. Yet, from the mere circumstance that he was paid a higher wage than his men, without more, notwithstanding all head drillers are so paid, it is deduced that some of the prevailing wage paid him must constitute reimbursement to the driller for participating in a car pooling arrangement between him and members of his crew, operated for the mutual benefit of all. Any such finding is guesswork, pure and simple. There is not a shred of evidence to support it.

The portion of finding No. 9 designated part (b) in the majority opinion seeks to destroy the deadly effect of the stipulation declaring the employer’s complete aloofness, disinterestedness and non-participation in the car pooling arrangement existing between the men comprising the drilling crew, the head driller included, except to the extent such unconcern might be qualified by employer’s requirement, customary in all types of work, that the driller should be responsible for having his men at the well site by 4 p. m. each day, the hour for commencing work on time. This qualification of employer’s stipulated aloofness from the car pooling arrangement does not mean, as has been shown, that the driller was to act as a sort of chaperon or guide to bring the men in his charge from Hobbs to the well site each day. It was merely declaratory of the duty resting on a foreman or boss, immemorially, to see to it that his men reach the job in time to go to work. The performance of the duty is naturally to be enforced, as it always has been, by disciplinary action such as suspending, or firing, tardy or delinquent workmen. Certainly, no practical, sensible or contemplated performance would call upon the driller personally to transport his crew from Hobbs each day, at his own expense, if need be, as the majority opinion leaves the matter. Accordingly, the recitation in this portion of finding No. 9 that the employer knew of and acquiesced in this “share the ride” arrangement between members of the drilling crew is meaningless and wholly innocuous insofar as concerns any bearing it properly may have on the rights of the parties.

The prevailing opinion states: “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.”

It could with all propriety have been added, what neither the majority nor counsel for claimant will question, that if the challenge to sufficiency of the evidence to support these findings is well taken, then the judgment of the district court is wrong and should be reversed. In my candid opinion, it has been abundantly demonstrated that the stipulated facts do not support the decisive findings upon which the judgment before us rests. We are not unmindful that our Workmen’s Compensation Act is to be liberally construed. We have so often declared this to be the rule that it has become axiomatic. See Gonzales v. Chino Copper Co., 29 N.M. 228 , 222 P. 903 , for one of our early decisions so holding and Lipe v. Bradbury, 49 N.M. 4 , 154 P.2d 1000 , as one of the latest. But liberal construction does not mean unreasonable construction, Martin v. White Pine Lbr. Co., 34 N.M. 483 , 284 P. 115 ; nor make of the employer an insurer against any and all injuries suffered by an employee while in the course of his em-. ployment. Chicago Hardware Foundry Co. v. Industrial Commission, 393 Ill. 294 , 65 N.E.2d 778 .

In the prevailing opinion some weight is given the fact that before leaving Hobbs for the well site on the day in question, the deceased had performed a service for his employer in the hiring of a new man for his crew who was to, and did, accompany him and other members of the crew on what proved for four of them to be a fatal journey to the job. It is not my purpose to question that, had deceased been injured, while engaged in the hiring of this new man, as for instance in the journey to his home or rooming house to contact him, or otherwise attending this duty of his own employment, the injury would arise out of and in the course of his employment. I do not agree, however, that having completed the performance of this duty, the fact of it afforded him Workmen’s Compensation coverage throughout the journey following to his place of work in direct contradiction of the statute which declares coverage is denied for such period. Cf. Emmons v. Wilkerson, Ind.App., 89 N.E.2d 296 .

The proper decision of this case rests so completely on a correct appraisal of the facts which, as has been shown, do not support the findings made, that decided cases can afford little aid in reaching a correct result. Nevertheless, the decisions which follow, insofar as analogous, support the conclusion there is no liability here. Emmons v. Wilkerson, supra; Melnick v. Ideal Container Corp., 131 N.J.L. 518 , 37 A.2d 648 ; Republic Underwriters v. Warf, Tex. Civ.App., 103 S.W.2d 871 ; McKenzie v. Industrial Commission, Utah, 205 P.2d 827 ; Jones v. Lozier-Broderick & Gordon, 160 Kan. 191 , 160 P.2d 932 . See, also, 1 Schneider on “Workmen’s Compensation”, 2d Ed., § 267, p. 779.

A careful analysis of the several cases heretofore decided by this court under somewhat analogous conditions discloses that not one of them can serve as a precedent for the decision here announced by^ the majority. See Cuellar v. American Employers’ Ins. Co., 36 N.M. 141 , 9 P.2d 685 ; Caviness v. Driscoll Construction Co., 39 N.M. 441 , 49 P.2d 251 ; McKinney v. Dorlac, 48 N.M. 149 , 146 P.2d 867 ; Barrington v. Johnn Drilling Co., 51 N.M. 172 , 181 P.2d 166 ; Parr v. New Mexico State Highway Department, 54 N.M. 126 , 215 P.2d 602 . Negligence of the employer was made the basis of recovery in the Cuellar case; recovery was denied in the Caviness case; the employer paid for travel time in the Dorlac case and so on as to each cited, some distinguishing feature is held to warrant recovery or recovery is denied.

As to other jurisdictions, my research likewise fails to disclose a single supporting authority for the prevailing opinion. There is not a case cited in it that does not have distinguishing features. In the one case of which the prevailing opinion chooses to say if is “exactly in point”, Olson Drilling Co. v. Industrial Commission, 386 Ill. 402 , 54 N.E.2d 452 , the employee though traveling a portion of the same route traversed in going to and from work daily had in his possession certain drilling reports which he was directed to deliver to the employer’s office in Olney, Illinois, located at a point which would cause a detour from his regular route in order to make delivery. Before reaching the point of detour, however, he was injured in an automobile collision. The injury was held to “arise out of” the employment because at the very moment of its occurrence, the employee was engaged on this special mission for the employer. No such condition prevails here. But for the fact of the special mission on which the employee was engaged at time of injury in the Olson case, there could have been no recovery. The only duty or mission with which the driller in the case at bar had anything to do before arriving at the well site, the hiring of a new man, had been fully performed before leaving Hobbs and at time of death he was in the very act of doing exactly, what the statute declares shall not be deemed an “extra-hazardous •occupation or pursuit” namely, “on his way to assume the duties of his employment”. 1941 Comp. § 57-912(1).

Being well convinced the judgment rendered is erroneous and should be reversed and the majority concluding otherwise, for the reasons given,

I dissent.

McGHEE, J., concurs.