{
  "id": 8841605,
  "name": "RUMLEY v. MIDDLE RIO GRANDE CONSERVANCY DIST.",
  "name_abbreviation": "Rumley v. Middle Rio Grande Conservancy Dist.",
  "decision_date": "1936-04-17",
  "docket_number": "No. 4145",
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  "provenance": {
    "date_added": "2019-08-29",
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    "judges": [
      "HUDSPETH, BICKLEY, BRICE, and ZINN, JJ., concur."
    ],
    "parties": [
      "RUMLEY v. MIDDLE RIO GRANDE CONSERVANCY DIST."
    ],
    "opinions": [
      {
        "text": "SADLER, Chief Justice.\nThe plaintiff (appellee) as claimant before the district court of Bernalillo county sought recovery under the Workmen\u2019s Compensation Act (Comp.St. 1929, \u00a7 156-101 et seq.). She is the widow of Miles W. Rumley, deceased, who at the time of his death and on the occasion of the alleged accidental injury which it is said resulted in his death, was employed by the Middle Rio Grande Conservancy District, the defendant, as levee patrolman or \u201cditch rider\u201d on what is known as the Corrales Main Canal, a part of the works of the defendant conservancy district.\nThe deceased had been employed in the capacity indicated from the month of April, 1934, down to the date of the alleged accidental injury on August 19, 1934. His duties were to patrol the canal, turn water in and shut it off by lifting and closing gates, detect leaks or breaks in the ditch banks, see to the repair of same, keep the portion of the ditch patrolled by him clear of obstructions and, of course, do any other thing necessary to accomplish the main object of his employment, viz., to assure a ditch capable of furnishing: a steady and measured flow of water when required.\nOn the date in question, August 19, 1934, the deceased, while on regular patrol duty, accompanied by his wife, found it necessary to open a gate in a ditch near Alame-da bridge in Corrales. Evidently the gate was fast, since deceased used a \u201ctwo-by-four\u201d or post for leverage in getting it loose enough to lift and open. There was a head of water against the gate at the time. His wife, who witnessed his labors with the gate, testified:\n\u201cA. He had to use the two by four on it, first from one side then the other, then he used all of his strength he possibly had to remove that gate.\n\u201cQ. How many times did he lift on it? A. He stayed with it until he just pulled it up; he was in this position pulling on the gate and when he released the gate he stepped back on the bank then of the ditch.\n\u201cQ. What did he do or say at that moment? A. When he stepped back on the bank he was real pale and he' said, \u2018Mama, I hurt myself.\u2019\n\u201cQ. Did he put his hand up to his breast? A. He did.\u201d\nThe plaintiff (deceased\u2019s wife), took him home in the automobile in which they were traveling and he went to bed. However, he worked the next two days. The third day he was again confined to his bed and was unable thereafter to return to his work. He died on September 3, 1934, only two weeks from the date of the alleged accidental injury.\nThe deceased had suffered from heart trouble for several months prior to his death.\" On July 8, 1934, he suffered a heart attack which confined him to his bed for the period of ten days, and his physician, testifying as a witness for plaintiff, said that upon releasing him he \u201cabsolutely advised him that he should make no effort physically of any kind.\u201d The physician gave as his diagnosis of the case at that time \u201chypertrophy of the heart, mi-tral regurgitation and auricular fibrillation.\u201d Asked to state this condition so that counsel could understand it, he elucidated: \u201cQuite enlarged heart with a thickened heart muscle and a leaking valve of the left side of the heart, with a falter or an irregular beat of the heart, which ordinarily is not there in a normal heart; in other words, a very decided heart condition.\u201d\nThis witness, signing deceased\u2019s death certificate, gave as cause of death the following, to wit: \u201cAcute dilatation heart \u2014auricular fibrillation. Date of onset \u2014 1934,\u201d and as contributory cause of importance not related to principal causes, \u201cmitral regurg. 1933.\u201d There were no marks of external violence of any kind on the body of deceased fob lowing his exertion in lifting the gate.\nAt the time of the alleged accidental injury the deceased was working solely in operation and maintenance work and not in construction work for the defendant, Middle Rio Grande Conservancy District. The defendant, as the trial court found, had completed its construction work in the Corrales area several months prior to August 19, 1934, \u201cand was solely carrying on operation and maintenance work in the area in question.\u201d\nThe trial court found that the exertion of deceased in lifting the gate had aggravated his pre-existing heart trouble and accelerated death; that he died of acute dilatation of the heart as a result of over-strain in lifting said gate; concluded that this constituted injury \u201cby accident\u201d within the meaning of the Compensation Act; overruled defendant\u2019s objection that deceased was not engaged in an extrahaz-ardous occupation within the meaning of that term as used in the act, and awarded judgment in plaintiff\u2019s favor. It is to review that judgment that this appeal is prosecuted. _\nWhile three points are relied upon for reversal, the second one being decisive of the case, the other two do not require notice. It is not amiss, however, even though we do not decide the point, to express our serious doubt as to soundness of the first point. The defendant invokes against plaintiff the provisions of Comp.St.1929 \u00a7 45-601, requiring corroboration of opposite or interested parties in suits by or against the heirs of deceased persons in respect of any matter occurring before the death of such deceased persons. The plaintiff acquiesces in the view that this statute is applicable and endeavors to avoid its effect by attempting to show corroboration of plaintiff\u2019s account of the event claimed to have been accidental.\nWe doubt applicability of the statute. Where a death occurs for which compensation is recoverable, dependency as defined in the act, and not heirship, furnishes the sole test of claimant\u2019s right to recover in so far as governed by status. The mere fact that the two usually coexist in the same person, or persons, does not alter the fact that it is the former status alone which will sustain recovery. Heirship without defined dependency will not authorize compensation, whereas dependency without heirship in certain instances will do so. Comp.St.1929 \u00a7 156-112, subparagraphs (j) and (k). Under defendant\u2019s theory the statute would be applicable where heirship and dependency coexist in claimant and inapplicable where they do not. Strong reasons only could support a result so anomalous. Hence, our doubt.\nThe defendant\u2019s second point, which we have indicated is decisive, involves an answer to the question: Was the decedent, Miles W. Rumley, on the occasion of the alleged injury, working for an employer then and there engaged in carrying on any of the extrahazardous occupations or pursuits defined in the statute? We give a negative answer to this inquiry.\nThe language of Comp.St.1929, \u00a7 156-102, so far as material, reads: \u201cThe state and each county, city, town, school district, drainage, irrigation dr conservancy district, and public institution and administrative board thereof employing as many as four workmen in any of the extra-hazardous occupations or pursuits hereinafter named or described, and every private person, firm, or corporation engaged in carrying on for the purpose of business, trade or gain within this state, either or any of the extra-hazardous occupations or pursuits herein named or described and intended to be affected hereby, shall employ therein as many as four workmen, except as hereinafter provided, such employer shall become liable to, and shall pay to any such workman injured by accident arising out of and in the course of his employment in any such occupation and pursuit, and, in case of his death being occasioned thereby, to such person as may be appointed by the court to receive the same for the benefit of his dependents, compensation in the manner and amount, and at the times herein required.\u201d (Italics ours.)\nWe are referred by this section to another, Comp.St.1929, \u00a7 156-110, for ascertaining when the employer is to be considered as carrying on an extrahazardous occupation or pursuit. So far as material, it reads: \u201cThe extra-hazardous occupations and pursuits to which this act are applicable are as follows: Factories, mills and workshops where machinery is used; foundries, blast furnaces, mines, oil wells, gas works, natural gas plants, water works, reduction works, breweries, elevators, dredges, smelters, power works, laundries operated by power, quarries, engineering works, logging, road building and construction, lumbering and saw mill operations, street railways, buildings being constructed, repaired, moved, or demolished; telephone, telegraph, electric light or power plants or lines, steam heating or power plants; bridge building, railroad construction work, but shall not include railroad construction work of any character when done by the owner or operator of any railroad; and all employment wherein a process requiring the use of any dangerous explosive or inflammable materials is carried on; and each of which employments above named, including all employees of telephone and telegraph companies, is hereby determined to be extrahazardous, in which, from the nature, conditions or means of prosecution of the work therein required risks to the life and limb of the workman engaged therein are inherent, necessary or substantially unavoidable.\u201d\nThe plaintiff, by attempting to classify the occupation or pursuit in which deceased\u2019s employer was engaged at the time in question as \u201cengineering works\u201d and no other, concedes, and we think advisedly, that the employer does not classify under any other occupation or pursuit named in the statute as extrahazardous. The phrase \u201cengineering works\u201d is defined in section 156-112(g) as follows: \u201c\u2018Engineering work\u2019 means any work in the construction, .alteration, extension, repair or demolition of a bridge, jetty, dike, dam, reservoir, underground conduit, sewer, oil or gas well, oil tank, gas tank, water tank or tower, any caisson work or work in artificially compressed air, any work in dredging, work on log or lumber rafts or booms, pile driving, moving safes, or in laying, repairing or removing underground pipes and connections, the erection, installing, repairing, or removing of boilers, furnaces, engines and power machinery (including belting and other connections) and any work in grading or excavating where shoring is necessary or power machinery or blasting powder, dynamite or other high explosives are in use.\u201d\nWe thirik this case falls squarely within the authority of Koger v. A. T. Woods, Inc., 38 N.M. 241, 31 P.(2d) 255. In that case the employer was engaged in the general business of farming. Incident to its farming operations, it used two gasoline engines to supply power for pumping water from wells for irrigation purposes. The injured workman spent about two hours each day in caring for and operating the engines. When not so engaged, he acted as \u201cstraw boss\u201d of the other employees in farm work, and on occasion operated a tractor. Affirming the judgment of the lower court denying recovejy, we said:\n\u201cAppellant contends that his employment came within the classification of extrahaz-ardous occupations and pursuits as either 'power works\u2019 or \u2018engineering works.\u2019 In a very able brief, counsel for appellant attempts to prove that, at the time the appellant was injured, he was operating engines to produce \u2018power\u2019 to pump water from the wells to be used for irrigation purposes. With this theory we cannot agree.\n\u201cThe operation of the two engines was merely incidental to the main pursuit, which was farming. Appellant was not merely engaged in caring for the engines as a separate and distinct employment, but as a part and parcel of the entire agricultural enterprise, in which he also participated as a straw boss and tractor operator.\n\u201cOur statute does not expressly exclude persons engaged in \u2018agricultural pursuits\u2019 as is done in many acts of other states. The statute in effect at the time of the accident, Comp.St.1929, \u00a7 156-110, specifically enumerates what constitute extra-hazardous occupations and pursuits, and farming or agriculture, either \u2018dry\u2019 or \u2018irrigation,\u2019 are not among those enumerated.\n\u201cExpressio unius est exclusio alterius applies to a case like this. It is clear from the context that \u2018agricultural pursuits\u2019 are not included in the classification of \u2018extra-hazardous occupations.\u2019 \u201d\nAs emphasizing the fact that it is not the nature of the particular work in which the employee is engaged at the time of his injury but rather the character of his employer\u2019s occupation which controls, we further said: \u201cIt may seem a harsh rule that, if the appellant had been injured while working on the same piece of machinery but employed in pumping water at a waterworks plant or in a dredging operation, he would be entitled to compensation; whereas being engaged in a farming or agricultural pursuit he is not entitled to compensation. That .is .a matter of legislative policy, and we are bound to interpret and apply the law as it is given us.\u201d\nIn State ex rel. Maryland Casualty Company v. State Highway Commission, 38 N.M. 482, 35 P.(2d) 308, 311, contrasting the meaning of \u201cextra hazardous occupations\u201d as used in Laws 1927, c. 100, an act authorizing the highway department to insure certain of its employees, and \u201cextra hazardous occupations and pursuits,\u201d as found in Laws 1917, c. 83, our original Workmen\u2019s Compensation Law, we said:\n\u201cFinally, appellee\u2019s contention is based on a false conception. It is demonstrably untrue that \u2018extra hazardous occupations\u2019 in the 1927 act means the same thing as \u2018extra-hazardous occupations and pursuits\u2019 in the 1917 act. All agree that the former has reference to the particular duty or task of the employee. The latter as plainly refers to the business Or undertaking of the employer.\n\u201cBy the 1927 statute the highway commission, which may here be considered as an administrative arm of the state engaged in the business or undertaking of road building, is authorized to take out insurance for such of its employees as it,deems engaged in extra hazardous duties or tasks.\n\u201cBy the 1917 act persons and corporations (employers) engaged in certain named \u2018extra-hazardous occupations or pursuits\u2019 are made liable to compensate their employees for injuries and to.give security therefor.\u201d\nAs plainly appears from what is there said, it is the business or undertaking of the employer, not the particular duty or task of the employee at the time, which furnishes the test on whether the act is applicable. Nor can it be said the plaintiff fails to comprehend this as the true construction. On the contrary, she vigorously insists that defendant was engaged in carrying on \u201cengineering works\u201d at the time and place in question; that although its construction program had been completed in this area some months previously, and it was engaged solely in \u201coperation and maintenance,\u201d all as found by the court, nevertheless, the deceased, in the performance of his duties as patrolman or \u201cditch rider,\u201d must, if occasion arose, repair a \u201cdike,\u201d and that the business of the employer in the construction of the project \u201cmerged into its maintenance without any line of demarcation.\u201d\nWith this reasoning we cannot agree The only thing to which plaintiff points in the definition of \u201cengineering works\u201d as embracing work the deceased might be called upon to do in the performance of his duties as \u201cditch rider\u201d or patrolman, is the \u201crepair * * * of a dike.\u201d Actually, he was not repairing a dike at the time of the alleged injury, but this fact is of no consequence. The important consideration is that the repair of a dike, if some break should necessitate repair, was but an incident to the principal business or undertaking, viz., \u201coperation and maintenance\u201d of an irrigation project, in which deceased\u2019s employer was engaged at the time and place in question. Koger v. A. T. Woods, Inc., supra.\nThe plaintiff does not contend that the mere fact that defendant is a \u201cconservancy district\u201d within the meaning of that term as used in Comp.'St.l929, \u00a7 156-102, subjects it to the act. It is only when employers are engaged in \u201coccupations or pursuits\u201d declared \u201cextra hazardous\u201d by section 156-110 that liability attaches under the act for compensable injuries to employees. Nor does it matter that this employer at one time in the same area was, or perhaps at the same time elsewhere may have been, engaged in extrahazardous pursuits as defined in the act. An employer may conduct different departments or types of business, some of which are within the Compensation Act and some of which are not. 71 C.J. 365, \u00a7 78, under subject, \u201cWorkmen\u2019s Compensation Acts.\u201d Furthermore, and contrary to plaintiff\u2019s contention, the environment of employer\u2019s occupation during construction and that obtaining in operation and maintenance, as related to hazards of employment, is so different as to suggest a clear line of demarcation. That line is where the one begins and the other ends.\nLiberal interpretation, to which this court is committed in favor of an employee fairly within the protection of the act (Gonzales v. Chino Copper Company, 29 N.M. 228, 222 P. 903), does not warrant an unreasonable or a strained construction in order to embrace occupations or pursuits not classified by the Legislature as extrahazardous. H. Roy Berry Co. v. Industrial Commission, 318 Ill. 312, 149 N.E. 278; Mobley v. Brown, 151 Old 167, 2 P.(2d) 1034, 83 A.L.R. 1014, and annotation at 1018; Anderson v. Department of Labor and Industries, 173 Wash. 483, 23 P.(2d) 879. Any demand to extend benefits of the act to employees of conservancy and irrigation districts where the latter are engaged only in operation and maintenance of such projects must be accomplished through the Legislature. The courts are powerless to effect it.\nThe judgment will be reversed, and the cause remanded, with a direction to the trial court to set aside its judgment heretofore rendered and dismiss the complaint.\nIt is so ordered.\nHUDSPETH, BICKLEY, BRICE, and ZINN, JJ., concur.",
        "type": "majority",
        "author": "SADLER, Chief Justice."
      }
    ],
    "attorneys": [
      "Pearce C. Rodey, Don L. Dickason, and Benjamin Osuna, all of Albuquerque, for appellant. ,",
      "Joseph Gill, of Albuquerque, for appel-lee."
    ],
    "corrections": "",
    "head_matter": "57 P.(2d) 283\nRUMLEY v. MIDDLE RIO GRANDE CONSERVANCY DIST.\nNo. 4145.\nSupreme Court of New Mexico.\nApril 17, 1936.\nPearce C. Rodey, Don L. Dickason, and Benjamin Osuna, all of Albuquerque, for appellant. ,\nJoseph Gill, of Albuquerque, for appel-lee."
  },
  "file_name": "0183-01",
  "first_page_order": 207,
  "last_page_order": 214
}