(dissenting).
I concur in the Court’s opinion insofar as it holds that voluntary payment of workmen’s compensation insurance does not create a presumption of coverage, but is rather one factor to consider in determining whether the injury is compensable.
I dissent from the holding that the plaintiff is entitled to compensation for his injury. It is my opinion, that in so holding, the majority ignores or misconstrues the following findings of fact made by the trial court:
4. Plaintiff left his place of employment during working hours to return to his home to pick up a book of telephone numbers.
5. The book of telephone numbers was the plaintiff’s personal collection and it was not suggested, directed nor required to be kept by defendant employer nor was it required as part of his employment that plaintiff have the book of telephone numbers in his possession at work.
6. Plaintiff neither sought nor was given authorization, permission or approval for his trip to his home from defendant employer.
7. ... [T]he vehicle which plaintiff was driving stalled in or at the driveway into the car lot at defendant’s premises.
9. Defendant employer had “lot boys” and tow trucks available on its premises who would aid, assist, repair, remove, tow or push disabled vehicles on defendant employer’s premises or wherever the disabled vehicle was located.
10. Plaintiff’s duties did not include being a lot boy, mechanic or tow truck operator, nor did his duties include or require that plaintiff perform physical labor.
11. Pushing his stalled vehicle was not a duty of the plaintiff nor was it incidental to his duties.
On appeal, we view the evidence in the light most favorable to support the findings of fact of the trial court. It is not the function of the appellate court to weigh the evidence or its credibility, and it will not substitute its judgment for that of the trial court so long as they are supported by substantial evidence. Getz v. Equitable Life Assur. Soc. of U. S., 90 N.M. 195, 561 P.2d 468 (1977), reh. denied, 434 U.S. 834, 98 S.Ct. 121, 54 L.Ed.2d 95 (1977).
In my judgment the trial court made findings that are supported by the record. I am not willing to ignore them, and do not desire to second guess the trial court.
A workmen’s compensation case, especially one involving a back injury, is a very difficult matter to try. The trial court is in the best position to evaluate the evidence after observing the demeanor of the witnesses and hearing all the evidence and make the decision on the case.
After reviewing the transcript, I feel that the evidence supports the trial court’s findings and accordingly would affirm the Court of Appeals and the trial court.