(specially concurring).
I agree with the result reached by Judge Walters, and agree that it is incongruous to permit a compensation recovery for off-premises injuries in pursuit of personal comfort and deny compensation recovery when an employee, on the way to or leaving employment, is injured in the employer’s doorway. If off-the-premises personal comfort missions are characterized as being “at work”, going and coming, while on the employer’s premises are also “at work”. As stated in Whitehurst, supra, 70 N.M. at 474, 374 P.2d 849: “But for his employment the necessity for a coffee break would not have occurred.” Similarly, but for the employment, the necessity for going to or coming from the employer’s premises would not have occurred.
I do not agree that special mission cases are applicable. In special mission cases, the going and coming rule is simply inapplicable; the employee is “at work” until the special mission is completed, wherever the mission is being performed.
I view Cuellar v. American Employers’ Ins. Co. of Boston, Mass., 36 N.M. 141, 9 P.2d 685 (1932), as approaching a premises rule in New Mexico. At 36 N.M. 146, 9 P.2d 685, the majority state:
It is our view that the injury in the case at bar was so connected with the employment of the deceased in point of time, space, and circumstance that although he was not at work and had left his duties, and the negligence of his employer being the proximate cause of the injury, the judgment of the trial court is correct ....
Justice Watson, specially concurring, was of the view that if the injury occurs after the worker has left his duties, negligence of the employer, proximately causing the injury, was the sole element for compensability. Under the majority view in Cuellar, the time, space, and circumstance rule applies in determining whether the employer is liable, in a going or coming situation, to pay compensation rather than common law damages for the employer’s negligence. Compare Mountain States Tel & Tel. Co. v. Montoya, 91 N.M. 788, 581 P.2d 1283 (1978).