Carter v. Burn Construction Company, Inc.

SUTIN, Judge

(dissenting).

I dissent.

Summary judgment took a turn to the right as follows in Goodman v. Brock, 83 N.M. 789, 498 P.2d 676 (1972):

1.The “slightest doubt” theory as to material facts which foreclosed summary judgment was. thrown out even though this “is actually another way of stating that there is no genuine issue as to any material fact.” National Screen Service Corp. v. Poster Exchange, Inc., 305 F.2d 647 (5th Cir.1962).

2. The rule now is that the plaintiff is to be given the benefit of all “reasonable doubts” in determining whether a genuine issue exists. If there are such “reasonable doubts” summary judgment should be denied. The word “reasonable” is substituted for the word “slightest.”

3. Whether or not a genuine issue of fact exists depends on the peculiar facts of each case.

4. A substantial dispute as to a material fact forecloses summary judgment, even though a summary judgment may be granted only where the facts are clear and undisputed. Johnson v. J. S. & H. Construction Co., 81 N.M. 42, 462 P.2d 627 (Ct.App.1969).

5. The purpose of Rule 56 is to dispose of groundless claims, or claims which cannot be proved.

First, what is meant by giving the plaintiff “the benefit of all reasonable doubts” in determining whether a genuine issue exists ?

The term “reasonable doubt” as applied in criminal cases is not applicable because life or liberty is not at stake. Cole v. Oil & Gas Co., 127 W.Va. 762, 35 S.E.2d 25 (1945), 160 A.L.R. 970. See, Mishara v. Albion, 341 Mass. 652, 171 N.E.2d 478 (1961). In fact, it is impractical to frame a satisfactory definition. Kane v. Hibernia Insurance Co., 39 N.J.L. (10 Vroom) 697, 23 Am.Rep. 239 (1877). It has been said that the term “reasonable doubt” is so plain that an attempt to explain it is apt to lead to confusion. K. of P. v. Steele, 108 Tenn. 624, 69 S.W. 336 (1902).

In territorial days, our court said: “It is difficult to define a ‘reasonable doubt’ in any plainer terms than the words themselves import.” Chavez v. Territory, 6 N. M. 455, 463, 30 P. 903, 905 (1892).

In Hickey v. District Court of Kossuth County, 174 N.W.2d 406, 409 (Iowa 1970), the court said:

“Reasonable doubt” as used in section 783.1 exists when, after consideration of all relevant facts, one’s mind is left in such a condition that he cannot honestly say he feels an abiding conviction to a moral certainty as to the truth of the matter, and "doubt” is an attitude of mind toward the acceptance of or belief in a proposition, theory, or statement in which the judgment is not at rest but inclines alternately to either side. [Emphasis added]

In Goodman v. Brock, supra, the Supreme Court said:

As above indicated, we are firmly convinced that the matters relied upon by defendants ... in support of their motion for summary judgment were sufficient to support their burden. We are also convinced that plaintiff failed to come forward with anything which demonstrated that a genuine issue of fact exists . . . [Emphasis added]

To be convinced is to be positive “beyond all doubt” “beyond reasonable doubt” and without any uncertainty. The line has been drawn at intangible speculation. United States v. Mt. Vernon Mill Co., 345 F.2d 404 (7th Cir. 1965); Chesapeake & Ohio Ry. Co. v. International Harvester Co., 272 F.2d 139 (7th Cir. 1959). Goodman v. Brock, supra, proves that a trial court, the court of appeals and the Supreme Court may all differ as to the meaning of “reasonable doubt.”

It is obvious that “reasonable doubt” constitutes a play on words. To read the cases on the subject proves it. To me, in this case, it means that if a trial or appellate court is convinced there is an uncertainty whether a genuine issue of fact exists, it votes in favor of the plaintiff. Doubts must be resolved against the defendant. Edwards v. Mazor Masterpieces, Inc., 111 U.S.App.D.C. 202, 295 F.2d 547 (1961); Moutoux v. Gulling Auto Electric, Inc., 295 F.2d 573 (7th Cir. 1961).

In workmen’s compensation cases, “We are committed to the doctrine that the Workmen’s Compensation Act must be liberally construed, and reasonable doubts resolved in favor of employees.” Wilson v. Rowan Drilling Co., 55 N.M. 81, 94, 227 P.2d 365, 373 (1950); accord, Briggs v. Zia Company, 63 N.M. 148, 315 P.2d 217 (1957).

This play on words is valueless in workmen’s compensation cases because all issues of fact are tried by the court. Section 59-10-13.1, N.M.S.A.1953 (Repl. Vol. 9, pt. 1).

Second, the trial court granted summary judgment solely because there was “no genuine issue of any material fact that the accident and resulting fatality did not arise out of and in the course of . decedent’s employment . . . ”

It is obvious that the trial court was convinced that the defendant established its burden and plaintiff failed to come forward with anything which demonstrated that the above genuine issue of fact exists. Of what value would it be to reverse? The trial court will make such findings after the trial of the case. The difference in procedure is this: (1) by way of summary judgment, an appellate court can be convinced a genuine issue of fact does exist and reverse for trial to allow the trial court to reach the same conclusion; (2) then by way of trial, the findings of the trial court supported by substantial evidence are binding on this court.

Third, in a concurring opinion in Cuellar v. American Employers’ Ins. Co. of Boston, Mass., 36 N.M. 141, 148, 9 P.2d 685, 689 (1932), Justice Watson said:

The situation of the workman on his way to and from his duties had long been a no man’s land.

It still is.

It should be pointed out that § 59 — 10— 12(1), N.M.S.A.1953 (Repl. Vol. 9, pt. 1) which is now § 59-10-12.12, N.M.S.A.1953 (Repl. Vol. 9, pt. 1, Supp.1971) applies to extra-hazardous employment. Martinez v. Fidel, 61 N.M. 6, 293 P.2d 654 (1956), and McDonald v. Artesia General Hospital, 73 N.M. 188, 386 P.2d 708 (1963), were wrong and each case should be overruled because a chambermaid in a hotel and a nurse in a hospital, while leaving the place of employment, are not engaged in extra-hazardous occupations or pursuits as defined by § 59-10-10, N.M.S.A.1953 (Repl. Vol. 9, pt. 1). The same wrongful application of § 59-10-12.12, supra, has been applied in other cases. The only section applicable to a non-hazardous occupation or pursuit is § 59-10-13.3(A), N.M.S.A.1953 (Repl. Vol. 9, pt. 1). See, Hernandez v. Border Truck Line, 49 N.M. 396, 165 P.2d 120 (1946).

Fourth, § 59-10-13.3(A), supra, provides in part:

Claims for workmen’s compensation shall be allowed only:

(1) when the workman has sustained an accidental injury arising out of, and in the course of his employment;
(2) when the accident was reasonably incident to his employment;

Decedent’s estate was entitled to workmen’s compensation if either provision was applicable. See, Green v. Manpower, Inc., of Albuquerque, 81 N.M. 788, 474 P.2d 80 (Ct.App.1970).

Plaintiff’s complaint was verified. It alleged that “decedent was accidentally injured in an industrial accident arising out of and during the course of his employment by the defendant and he died as a result of the injuries received.” The deponent was decedent’s wife. Her affidavit reads in part as follows:

That deponent has read the foregoing and that the same is true according to deponent’s own knowledge. .

The rule is, however, that the verification “is insufficient as an affidavit because there is no affirmative showing that [Mrs. Carter] is competent to testify as to those matters.” Rekart v. Safeway Stores, Inc., 81 N.M. 491, 468 P.2d 892 (Ct.App.1970). In fact, no such evidence appeared in her deposition.

The clear and undisputed facts are that decedent was employed by defendant Burn as a “grease monkey.” His duties were to fuel and service defendant’s equipment. Defendant Burn assigned decedent a service truck to use. Decedent brought the truck home every night after work, including most Saturdays and some Sundays, and would leave each morning to service pieces of equipment wherever the equipment was located. He worked many hours of overtime, at least fifteen to twenty hours per week, and almost every day of the week.

On the night of the accident, decedent arrived at a bar between five-thirty and six-thirty, p. m., and remained until 10:00 p. m. He then left and drove what was the most direct and convenient route home. The accident occurred on this route. It did not occur on his route to the bar.

A reasonable inference can be drawn that defendant Burn furnished him the truck with permission or direction to drive it home, incidental to his employment, in order to service defendant’s pieces of equipment the following morning; that there were no fixed hours required to be observed; and that the use of the truck was for the mutual benefit of the defendant and the decedent. The vehicle was furnished decedent as an incident of his work. Under these circumstances, the accident which occurred on his way home was “reasonably incident to his employment” and, in fact, occurred in the course of his employment.

In any event, if any reasonable doubts exist, decedent must be given the benefit of all of them in determining whether this genuine issue exists, Goodman v. Brock, supra, and these reasonable doubts must be resolved in decedent’s favor.

It has long been the rule in New Mexico that where an employer furnished transportation to and from work in the deceased’s car, not the defendant’s, as a part of his contract of employment, the injury and death of the workman arose out of and in the course of his employment. Barrington v. Johnn Drilling Co., 51 N.M. 172, 181 P.2d 166 (1947); Wilson v. Rowan Drilling Co., supra. This was also true when an employee was directed by his employer to go to Roswell to work as a foreman, McKinney v. Dorlac, 48 N.M. 149, 146 P.2d 867 (1944). Rinehart v. Moss-man-Gladden, Inc., 77 N.M. 470, 423 P.2d 991 (1967), can be distinguished because driving the employer’s vehicle to and from work was not incidental to his employment.

Fifth, did the three and a half or four and a half hour visit at the bar constitute an abandonment of his employment? The answer is “no.” \

Parr v. New Mexico State Highway Department, 54 N.M. 126, 215 P.2d 602 (1950), answers the question. Here, the decedent, a project engineer, was in Bloomfield and advised an employee of his intention to call that night on the foreman in charge of the La Plata job. It would be necessary to pass through Farmington to visit this job. While in Farmington, he visited his father who was desperately ill at a hospital, and, thereafter, he resumed travel on the journey which occasioned the trip. The Supreme Court held that this visitation “would not deny his trip character as in the course of his employment.”

Frederick v. Younger Van Lines, 74 N. M. 320, 393 P.2d 438 (1964), quoted from Parr, supra. Frederick was operating defendant’s truck on a return trip from Denver to his destination in Hobbs when the accident occurred. An hour and a half was spent stopped by a stream. A direct route home was not taken. At the time of the accident, Frederick was not “aimed at reaching some specific personal objective.” The court ruled as a matter of law that a finding of material deviation from the direct course to Hobbs was based on guesswork and cannot be sustained.

In McKinney v. Dorlac, supra, the decedent stopped his automobile an hour or more in a bar and cafe while on his way to work in Roswell. This did not constitute so great a deviation from pursuit of his journey to bar recovery.

See also, Ark. Power and Light Company v. Cox, 229 Ark. 20, 313 S.W.2d 91 (1958); Sherrill & LaFollette v. Herring, 78 Ariz. 332, 279 P.2d 907 (1955); 99 C.J. S. Workmen’s Compensation § 222 c, p. 748, note 49, where Parr, supra, is cited under “return to employment.”

I am convinced that decedent, at the time of the accident, sustained an accidental injury arising out of, and in the course of his employment, and the accident was reasonably incident to his employment. Defendant did not make an affirmative showing that there were no factual issues. It was not entitled to summary judgment.