Wilson v. Rowan Drilling Co.

On Motion for Rehearing

BRICE, Chief Justice. On motion for rehearing the defendant contends: “There is fundamental error in the case for the reason that the stipulations contained in the record are in dispute and such that no one knows what the evidence is, which leaves the validity of the findings of fact uncertain and unsettled; therefore, the case should be remanded for partial retrial in order to do justice to the parties.”

No question in regard to the stipulation was raised prior to the filing of the motion for a rehearing. The only assignments of error are as to conclusions of fact made by the trial court in its findings from the stipulated facts. Indeed only assignment No. 3 attacked any specific finding of fact and that was finding No. 9, although we considered objections to findings 4 and 8 made in defendant’s argument. In again reading over the transcript we have not the slightest doubt but that the stipulation as outlined in our original opinion was agreed to. Defendant’s counsel was asked regarding whether he would agree to this or that fact, and he did or' did not agree, as he was pleased to stipulate. In one place this occurred:

'“Mr. Hanners: We will stipulate that if it embraces this additional element that the employer looked to the man Wilson, the driller in charge of the crew, to see that his crew arrived at the drill site.

“Mr. Brand: We have already stipulated that. (Our emphasis.)

“The Court: All right, with that additional stipulation the stipulation is admitted. (Our emphasis.)

“Mr. Brand: I believe that is all.

******

“The Court: Now, gentlemen, are there any further factual stipulations?” (Our emphasis.)

Then the matter was gone into further by the parties.

“Mr. Brand: I can’t agree as to that because I do not know that as a fact.

“The Court: You may put her on and establish that fact by testimony.”

Much more was said along this line, showing that the parties did agree on the stipulated facts as stated in our opinion.

Complaint is here made regarding Finding of Fact No. 4, which is: “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 Iby some other member of his crew.” And yet this finding was in substance a request of defendant. In fact the following requested findings of fact made of the court by defendant, are the principal facts upon which our opinion was based:

“That the said Roy Wilson, as driller, as a part of his duties and responsibilities, zms to keep a full crezv employed for his employer and to see that they arrived at the place where the well was being drilled at approximately 4:00 o’clock in the afternoon and to remain there through the eight-hour working period; that said Wilson had the authority to hire and fire other members of his crew; that on the morning of May 18th, 1947, said Wilson had employed at Hobbs a man by the name of Tidwell to fill a vacancy in the drilling crew.

“That the said employer had made no arrangements with said Wilson or any employee of the drilling crew as to the manner in which they would travel in order to get to the scene of their work, or in returning to their respective homes upon completion of such work period; that no compensation was paid or promised to said Wilson or any member of the crew by the employer for the time consumed in going to and returning from such work, and that no mileage or other allowance for transportation was being paid to said Wilson or any member of the crew to compensate them for transporting themselves to and from work; that whatever arrangements were made between the members of the drilling crew as to who furnished transportation were of no concern to said employer and were things in which the employer had no interest and which it did not in any wise direct; that said employer had no supervision or control over said crew members while they were en route to and from the drilling site; that whatever the arrangements may have been, they were left from day to day solely to the members of the drilling crew; that the employer looked to said Wilson as driller and in charge of said crew to see that his crew arrived at the drill site in time to commence their work period beginning at 4:00 o’clock in the afternoon.” (Our emphasis.)

The defendant has filed with its brief an affidavit made by an official repudiating the stipulation. We are not inclined to reverse this case on such affidavit. There is nothing uncertain about the stipulation, and the findings of fact are supported by it.

Defendant states: “The Court committed fundamental error in determining certain material facts in this case because it failed to disregard as surplusage findings of fact based on stipulations of fact and thereupon determine the facts de nov.o.”

It is contended under this point that this court should ignore the findings of fact made by the court and determine the case upon the stipulations of the parties. It is probable that this case should have been presented to the court upon the stipulations of facts inasmuch as we are as competent as the district court to determine ultimate facts from stipulations. However that may be, each of the parties requested the court to make findings of fact and presented requests for specific ones. The court passed upon them and made its own findings, but substantially as requested by the parties. If the parties elected to try the case in this manner in the district court and in this court (as they have), we see no reason why we should upset such proceedings.

Defendant states another contention as follows: “In support of the findings of fact made by the trial court, this court relied upon certain unagreed-to proposals (of stipulation) of appellees as actual ‘stipulation’ although the record shows some of these relied-upon proposals abandoned by appellees, and stipulations to the contrary were substituted by the parties in lieu of those other proposals of appellees relied upon by this court.”

We find nothing under this contention that materially changes our view of the facts stipulated by the parties.

It is stated by the defendant that “Findings of fact numbered 4, 8 and 9 lack support of substantial evidence.”

We have reconsidered these findings and are of the opinion that they are supported by the facts stated in the stipulation of the parties.

The following statement made by this court in its opinion is objected to, to-wit: “The suggestion that no part of the transportation was of any concern to the employer is obviously not correct.” This statement is not material to a decision, and may be eliminated. The writer was, and still is, of the opinion that the employer was vitally interested in having the men transported to the work by four o’clock each afternoon, so that they could commence their tower at that hour. This statement in the opinion does not affect the result in the slightest.

It should be stated that none of the propositions we have heretofore considered in this opinion had for its basis fundamental error and under Supreme Court Rule 20, 1941 Comp. § 19-201, could not .as a matter of right be raised Iby defendant ion motion for rehearing.

Defendant’s Point V is as follows: “The Court erroneously held that an employee injured while traveling to his usual working place in an automobile on the public highway of New Mexico is, under the facts in the case, entitled to compensation under the Workmen’s Compensation Act, and in so doing failed to follow and apply an earlier decision interpreting the controlling statute, Section 57-912 (III) (1), New Mexico Statutes 1941 Annotated.”

This point is the only one th'at gives the majority of the Court who signed the original opinion any concern.

Section 57-912(1) N.M.Sts. 1941, referred to, is as follows: “The words ‘injuries sustained in extra-hazardous occupations or pursuit,’ as used in this act (§§ 57-901-57-931) 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 occim‘ring 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 duties of his employment or after leaving such duties, the approximate cause of which injury is not the employer’s negligence.” (Emphasis- ours.)

If defendant’s contention is correct then we have committed fundamental error, Jaffa v. Lopez, 38 N.M. 290 , 31 P.2d 988 and this question should be decided.

Before expressing an opinion, we call attention to the fact that this statute was pleaded in defense (as' here) in McKinney v. Dorlac, 48 N.M. 149 , 146 P.2d 867 , and in Barrington v. Johnn Drilling Co., 51 N.M. 172 , 181 P.2d 166 . In each of these cases the employee was killed on a highway away from the employer’s premises (as in the present case) and if defendant is correct these cases should be disapproved. Defendant cites Hernandez v. Border Truck Lines, 49 N.M. 396 , 165 P.2d 120 , in which we held that a milk truck owner in delivering milk to customers along the highway was not engaged in an extra-hazardous occupation so as to make the truck driver’s accidental death compensable under the Workmen’s Compensation Act. The. argument is that we held that the driving of a truck along a public highway was not extra-hazardous and therefore 'not within the Workmen’s Compensation Act. We did so hold, but we were construing our Workmen’s Compensation statute which does not provide that such a business or occupation is one for which compensation is provided by the statute and upon that ground compensation was denied. Paradoxically, defendant asserts that McKinney v. Dorlac, supra, should not be overruled, although the workman was killed while driving his car along the highway on his way from Albuquerque to his regular work, which was in Roswell. The day he was traveling was treated as a part of his employment, for which he .received his regular wages, but his injury occurred at no-more “extra-hazardous place” than where Wilson was killed,' and the same can b"e said of the employee’s injury that was- involved in the Barrington case, supra.

Each of the cases was decided upon the theory that the employee was acting within his contract of employment, and that his injury arose out of and in the course of his employment. It is significant that in Chief Justice Sadler’s dissenting opinion in the McKinney case (with whom Justice Bickley concurred,) that he never based his dissent on the theory here contended for, but upon the latter part of the same section, to the effect that “injuries sustained in extra-hazardous occupations * * * shall not include injuries to any workman occurring while on the way to assume the duties of his employment.” [48 N.Mex. 149, 146 P.2d 872 .] If there had been any doubt about this question in the minds of these able justices it would have been mentioned.

The statute in question was copied from the statutes of Wyoming. The Supreme Court of that state had the identical question to decide in Re Jensen, 63 Wyo. 88 , 178 P.2d 897, 908 . The exact statute was pleaded as a defense. The workmen were a drilling crew; their traveling expenses to and from the well were paid by the defendant company. The head driller, Long, Was killed and the tool pusher Jensen severely injured in an'accident that occurred on; the highway while the men were going home from their work. The transportation arrangements were about the same as in this case, except the owner of the car was paid 7 cents per mile as transportation expense. The employer had no control over the transportation. Claimant had no car and was not paid anything by the company for transportation; but it paid the car owner for transporting all the crew. The decision for Jensen was based upon the fact that he was transported to work at the expense of the company and the fact that he was injured on the highway, away from the well location while on the way home, was apparently not thought to be a defense. Many cases are cited with approval, among them our case of McKinney v. Dorlac, supra. It was said: “ * * * Just here we may recall that the language ‘while at work’ appearing in subdivision (0 of section 124-106-7 W.R.S.1931 hereinbefore quoted has been decided to be synonymous in meaning with the phrase ‘in the course of (his) employment’. It was so held, and it would seem correctly, by the Supreme Court of New Mexico in McKinney v. Dorlac, 48 N.M. 149 , 146 P.2d 867 construing the statute of that state which as before noted so closely resembles our subdivision (i) aforesaid.” Also see Standard Oil Co. v. Smith, 56 Wyo. 537 , 111 P.2d 132 , where a similar situation was considered, and compensation allowed the employee.

It is evident that this court and the Supreme Court of Wyoming have decided that the statute in question was never intended to deprive a workman of compensation, who at the time of his injury was acting within his contract of employment, if his injury “arose out of and was suffered in the course of his employment.”

As was said in Rumley v. Middle Rio Grande Conservancy Dist., 40 N.M. 183 , 57 P.2d 283, 286 , “ * * * it is the business or undertaking of the employer, not the particular duty or task of the employee at the time (of the injury), which furnishes the test on whether the act is applicable.” In this case the business of the employer was drilling oil wells, which is an extra-hazardous business.

The controlling statutes as to compensation are:

“57-905. * * *

“Any employer who has elected to and has complied with the provisions of this act, including the provisions relating to insurance, shall not be subject to any other liability whatsoever for the death of or personal injury to any employee, except as in this act provided; and all causes of action, actions at law, suits in equity, and proceedings whatever, and all statutory and commonlaw rights and remedies for and on account of such death of, or personal injury to any such employee and accruing to any and all persons whomsoever, are hereby abolished except as in this act.”

57-906:

“The right to the compensation provided for in this act, in lieu of any other liability whatsoever, to any and all persons whomsoever, for any personal injury accidentally sustained or death resulting therefrom, shall obtain in all cases where the following conditions occur:

“(a) Where, at the time of the accident, both employer and employee are subject to the provisions of this act; and where the employer has complied with the provisions thereof regarding insurance.

“(b) Where, at the time of the accident, the employee is performing service arising out of and in the course of his employment.'

“(c) Where the injury or death is proximately caused by accident arising out of and in the course of his employment, and is not intentionally self-inflicted.”

57-902.

. « * * * ancj every private person,’ firm, or corporation engaged in carrying ,on for the purpose of business, trade or gain within this state, either or any of the extra-hazardous occupations or pursuits' herein named or described and intended to be affected hereby, (which) shall employ therein as many as four [4] workmen, except as hereinafter provided, (such employer) shall become liable to, and shall pay to any such workman injured by accident arising out of and in the course of his employment in any such occupation and pursuit, and, in case of his death being occasioned thereby, to such person as may be appointed by the court to receive the same .for the benefit of his dependents, compen-' sation in the manner and amount, at the, times herein required, * * *.”

The maxim “expressio unius ést exclusio alterius” is only an aid to con-struction and not a rule of law, Neuberger v. Com'r of Internal Revenue, 311 U.S. 83 , 61 S.Ct. 97, 101 , 85 L.Ed. 58 , and is of limited application, State ex rel. O’Bannon v. Cole, 220 Mo. 697 , 119 S.W. 424 , 22 L.R.A.,N.S., 986. A statute which uses the.. word “including” (certain things) is not limited in meaning to that included. Gray v. Powell, 314 U.S. 402 , 62 S.Ct. 326 , 86 L. Ed. 301 .

The words “injuries sustained in .extra-hazardous duties incident to the business” are not so used in the Workmen’s Compensation Act. It probably had reference to Sec. 57-902, partially quoted. But in view of Secs. 57-902 and 57-906; and of the fact that the statute in question does ■not purport to be exclusive; and of our previous decisions; we hold that “The right to the compensation provided for in this act, * * * for any personal injury accidentally sustained or death resulting therefrom, shall obtain in all cases” when the conditions and circumstances stated and required by Sec. 57-906 are present. An ■'additional fee of $250 is allowed plaintiffs’ attorneys for services here.

The motion for a rehearing will be overruled.

It is so ordered.

LUJAN and COMPTON,'JJ., concur.