COVINGTON V. RUTLEDGE DRILLING CO., 1962-NMSC-155,
71 N.M. 120, 376 P.2d 180 (S. Ct. 1962)
Sidney COVINGTON, Plaintiff-Appellant,
vs.
RUTLEDGE DRILLING COMPANY, Employer, and the Travelers
Insurance Company, Insurer, Defendants-Appellees
SUPREME COURT OF NEW MEXICO
1962-NMSC-155, 71 N.M. 120, 376 P.2d 180
Roughneck brought compensation
proceeding against his employer and its insurer. The District Court, San Juan
County, C. C. McCulloh, D.J., rendered a judgment adverse to the roughneck, and
he appealed. The Supreme Court, Carmody, J., held that where foreman of
drilling crew after drilling job was completed asked the roughneck to drive the
foreman's automobile, which had previously been used to transport members of crew,
back to city for the foreman by a longer route than ordinarily used, and while
the roughneck was doing so the automobile broke down, and roughneck left
location of stalled automobile and was in process of returning to his home when
he met driller and at driller's request returned to scene of accident, and
while the roughneck was attempting to fix the automobile he was injured by
another automobile, his injuries did not arise out of and in course of
employment and were not compensable.
Smith, Kiker & Kitts, John H.
Stewart, Richard Ransom, Albuquerque for appellant.
Seth, Montgomery, Federal & Andrews,
Fred C. Hannahs, Santa Fe, for appellees.
Cormody, Justice. Compton, C.J., and
Chavez, J., concur. Moise and Noble, JJ., not participating.
{*121} Covington, as
claimant, appeals from the denial of any award for workmen's compensation.
{1} The findings of fact by
the trial court are in no sense attacked, except No. 8, which will be set out
in full hereafter. Otherwise, the facts as found by the trial court may be
summarized as follows:
Covington was a roughneck, employed by the defendant drilling
company at various locations. He had been working on a drill site approximately
seventy miles from Farmington on the day of the accident in question. The
shortest route from Farmington (where the men lived) to the drill site required
that the crews drive to the north side of a river, then crossing the river on a
footbridge and using another car which has been termed as a shuttle car, to
drive the three-to-five miles from the river to the drill site. The shuttle car
in this instance was owned by the driller of the crew with which Covington
worked, and the driller was paid $5.00 a day by the company for the use of his
car by the three drilling crews employed on the rig. Bailey, the driller, was
responsible for seeing that his crew reported for work on time, but it was not
his responsibility to furnish transportation for them. However, the Rutledge
Company paid Bailey $5.00 a day to defray the expenses of his crew between
Farmington and the footbridge. The members of the crew alternated in furnishing
cars, and Bailey would pay each of them the $5.00 for the day when the
individual furnished his car.
{2} On the day of the accident,
the work at the drill site had been completed. On this particular day, the crew
had ridden from Farmington to the footbridge in Bailey's other automobile and
Bailey asked one of the other members of the crew to drive the shuttle car back
to Farmington for him. The other member declined to do so and claimant was then
asked by Bailey to drive the car back. Covington accepted, and another member
of the crew accompanied him in the shuttle car. The route to be taken by the
shuttle car was not the same as that taken in ordinary travel by the crews to
and from the site -- actually, it was some thirty or forty miles longer. In any
event, the shuttle car broke down approximately halfway back to Farmington, and
Covington and his companion caught a ride with a passing truck. Before reaching
Farmington, Covington saw Bailey returning in the direction of the drill site,
stopped him and explained that the car had become inoperable. Bailey was
returning to find out what had happened to the car, and asked Covington and his
companion to return to help him get the car back to Farmington. They complied,
but when they reached the place where the car had stalled and were attempting
to fix it, a car driven by an Indian collided
{*122}
with one of the cars and, as a result, Covington was seriously injured.
{3} The trial court made
certain specific findings, as follows:
"7. That at the time of the accident, the claimant was
doing nothing in furtherance of the business of the employer, Rutledge Drilling
Company.
"8. That the driller, Bailey, had no authority from his
employer to order or direct the claimant to deliver the shuttle car back to
Farmington on behalf of the employer.
"11. That the claimant's return from Kirtland to the
scene of the accident was not in furtherance of the employer's business but was
for the purpose of assisting Mr. Bailey in his individual capacity.
"12. That it was not the duty of the claimant to his
employer to return to the scene of the accident or to help get the shuttle car
back to Farmington.
"13. That the claimant did not receive any pay nor was
any agreement entered into that he should be paid for returning the shuttle car
from the rig site to Farmington.
"14. That Mr. Bailey did not receive any payment, nor
was any agreement entered into that he should be paid, for either bringing the
shuttle car from Farmington to the rig site or returning it to
Farmington."
{4} None of the above
findings are attacked, other than No. 8. It requires no citation of authority
that the findings of the trial court which are not attacked must be accepted by
us as the facts of the case.
{5} Even as to the finding
attacked, nowhere does it appear that Bailey had actual authority to direct
Covington to deliver the shuttle car. An examination of the entire record fails
to disclose any evidence of Bailey's authority from the company to deliver the
car back to Farmington. Of course, Bailey was the driller, or the foreman of
the crew, and naturally had implied authority to direct the crew to do those
things which were required of them, but this related to their duties in
drilling the well, and had nothing to do with the disposition of the shuttle
car. Therefore, we do not feel that the finding attacked lacks support in the
evidence and it will not be disturbed. See, Totah Drilling Co. v. Abraham,
1958,
64 N.M. 380,
328 P.2d 1083; Hyde v. Anderson, 1961,
68 N.M. 50,
358 P.2d
619; and Clodfelter v. Reynolds, 1961,
68 N.M. 61, 358 P. 2d 626.
{6} We are thus faced with
the proposition as to whether or not, as a matter of law, under the facts as
found by the trial court, Covington was entitled to recover; or, to put it
another way, did his injuries arise out of and in the course of employment?
{7} The trial court concluded
that the accident and the resulting injuries did not arise
{*123}
out of the course of Covington's employment. It is argued that, even in the
face of the findings, this conclusion of law was incorrect, Covington claiming
a right to recover compensation on the basis that he was directed by a person
in authority to run a private errand, or do some work outside his normal
duties, for the private benefit of the superior, and that an injury occurring
under such circumstances is in the course of employment. Unfortunately,
claimant's failure to attack the findings precludes us from answering this
contention. Claimant says that particularly findings Nos. 7, 11 and 12 are not
necessarily conclusive, because claimant "thought" he was acting in
furtherance of the employer's business. There was no effort made to review the
evidence or to attack the findings, if, as claimant contends, they should be
qualified by the thoughts of claimant, nor was there any effort to review the
evidence relating to the question of whether Covington did anything in
furtherance of the employer's business, and we have many times held that we
will not weigh the evidence on appeal. Thus, it would appear that Covington was
not acting in furtherance of the employer's business, that his return with
Bailey to the scene of the accident was for the purpose of assisting Bailey
individually, and that it was not a part of claimant's duties to his employer
to return the car to Farmington. We are fully cognizant of a respectable line
of authority which, in effect, would sustain Covington's contention here, but
not upon the facts as found by the trial court and which are binding upon us.
{8} In the instant case,
finding No. 11 bars Covington from recovery. He had arrived at a place some
twelve or fourteen miles from his home, and his return to the location of the
stalled automobile, forty or fifty miles away, was neither in furtherance of
the employer's business, nor was he obeying an order of the employer's agent,
but, as found by the court, was assisting Bailey in his individual capacity. We
fully recognize that there may be situations where an employee, in following
the instructions of a supervisor, should be found to be in the course of his
employment, even though he may be on some private errand or doing some work
outside his normal duties for the private benefit of his superior (see, 1
Larson's Workman's Compensation Law, 27.-40, and cases cited therein). However,
we are bound by the facts as found by the trial court, and cannot allow
speculation or conjecture as to facts not before us to affect our determination.
{9} We do not believe, under
the facts as found, that the "coming and going" rule should be
extended, although we do not mean to say that, in a proper case, an employee
might not be covered by the provisions of the act while performing a personal
errand, upon the order or request of a superior. Compare, McKinney v. Dorlac,
1944,
48 N.M. 149,
146 P.2d 867; Wilson v.
{*124}
Rowan Drilling Co., 1950,
55 N.M. 81,
227 P.2d 365; and Feldbut v. Latham,
1955,
60 N.M. 87,
287 P.2d 615.
{10} We have seriously
considered the arguments advanced by claimant and the authorities cited by him,
and find that the cases are distinguishable and do not support claimant's
position under the facts as found by the trial court.
{11} The judgment will be
affirmed.