(dissenting).
I respectfully dissent.
At the outset, it is necessary to note that the historical facts are undisputed. I also believe it is necessary to set forth a part of the testimony of Mr. Abe Aguilar, the Principal of the Peñasco High School, where plaintiff was employed.
Q. Would you briefly describe for the Court what that ski program is and how it existed in 1976, ’77?
A. It’s been — it’s been — it’s a co-operative program between the Peñasco Schools and the Sipapu Ski Resort. We send students there during the school season, when they are ready for them, once a day, once a week, for possibly two hours and we consider it as an extracurricular activity, similar to what — the experience they would get, if they participated in other activities, such as basketball, baseball and that type of deal. With the exception, that in this case, since we don’t have a faculty to do the instructing, we simply provide the transportation to the lodge. The actual charge or the actual instruction is done by the personnel at the lodge.
Q. How long has that program been going on for, the co-operative program, between—
A. Ten or twelve years, as I can recall.
Q. Were you aware, or was the school aware of, Mr. Aguilar, that school personnel would go skiing or could go skiing?
A. Yes.
Q. Did you — you did not make it mandatory?
A. No, sir.
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Q. Now, the — and, you were aware that the sponsors who were going up with the team and with the club, or the class, made a practice of skiing with the students?
A. Yes. In fact, that was part of the basis for selecting them. They were — if they were willing to ski or if they were interested in the activities; in other words, I didn’t want to send anybody there that wasn’t interested in the program to start with.
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Q. As a matter of fact, would it not,— not be preferable to have a teacher upon the slopes with the students, so that they could see that the students were behaving themselves there, as well as in the lodge?
A. Very definitely.
A case of particular applicability to a situation such as this is McKinney v. Dorlec, 48 N.M. 149, 146 P.2d 867 (1944) wherein our Supreme Court adopted the following language from Young v. Department of Labor and Industries, 200 Wash. 138, 93 P.2d 337, 339 (1939):
[A]n injury to an employee arises in the course of his * * * employment, at a place where he may reasonably be, and while he is reasonably fulfilling the duties of his employment or engaged in doing something incidental [thereto].
Our Supreme Court in Wilson v. Rowan Drilling Co., 55 N.M. 81, 227 P.2d 365 (1950) held:
We are committed to the doctrine that the Workmen’s Compensation Act must be liberally construed, and reasonable doubts resolved in favor of employees. [Citations omitted.] So construing the act, we conclude that when an employee is sent by his employer on a special mission away from his regular work; or by the terms of his contract of employment he is burdened with a special duty incidental to, but aside from the labor upon which his wages are measured; while on such mission, or in the performance of such duty, the employee is acting within the course of his employment * * * If an employee is accidentally injured while on such mission, or in the performance of such duty, the injury arises out of and in the course of his employment.
In the case of Edens v. New Mexico Health and Social Services Dept., 89 N.M. 60, 547 P.2d 65 (1976) the deceased, Betty Jean Edens, and three other employees of the H.S.S.D. were ordered to attend a special two-day meeting in Santa Fe. They were requested to form a car pool and to return overnight to Albuquerque between the two sessions in order to save fuel and reduce travel costs. The four employees met at a designated place and proceeded as a group to Santa Fe in Eden’s car. At the close of the first day’s session, the four returned to the meeting place. After letting the other three off, Mrs. Edens drove out of the parking lot and immediately thereafter was involved in the accident which resulted in her death. The trial court found, among other things, that the accident did not arise out of, nor was it incidental to, her employment.
In reversing the trial court our Supreme Court stated the following:
We have previously held that, where the historical facts of the case are undisputed the question whether the accident arose out of and in the course of the employment is a question of law. ******
Edens was sent on a special mission to the meeting in Santa Fe, away from her regular work at the Bernalillo County North Valley Office. The question remains, however, whether she was performing that special mission at the time of the fatal accident.
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In this regard, the following rules, as stated in 1 Larson on Workmen’s Compensation Law, § 14.00 Meaning of “Course of Employment” (1972), are applicable:
“An injury is said to arise in the course of the employment when it takes place within the period of the employment, at a place where the employee reasonably may be, and while he is fulfilling his duties or engaged in doing something incidental thereto.”
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Each of the four employees who went that day to Santa Fe was the [sic] on a special mission for their employer HSSD, and each was within the scope of his employment from the moment he left home until the moment he returned home at the end of the day.
The holding in the case of Robards v. New York Division Electric Products, Inc., 33 A.D.2d 1067, 307 N.Y.S.2d 599 (1970) is also applicable in a situation such as this:
Appellants contend that the accident did not arise out of and in the course of employment. Where an employee, as part of his duties is directed to remain in a particular place or locality until directed otherwise or for a specified length of time “the rule applied is simply that the employee is not expected to wait immobile, but may indulge in any reasonable activity at that place, and if he does so the risk inherent in such activity is an incident of his employment.” Quoting Matter of Davis v. Newsweek Mag., 305 N.Y. 20, 28, 110 N.E.2d 406, 409 (1953).
The facts of this case unquestionably bring it within the ambit of the foregoing authorities. The compelling factor that makes judgment for the plaintiff mandatory is that the plaintiff was not only expected to ski, she was authorized to do so. As, Mr. Aguilar testified, he purposely chose a teacher who was interested in skiing. He also thought that it was a good idea for the teacher to be out on the slopes where the students were so she could better supervise them. This accident arose out of and in the course of plaintiff’s employment. I would reverse the judgment of the trial court.