{
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  "name": "O. L. CHAPMAN, Claimant-Appellee, v. Gus ANISON and John Grisolano, d/b/a El Vasito Night Club, Employers-Appellants",
  "name_abbreviation": "Chapman v. Anison",
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    "judges": [
      "LUJAN, C. J., and SADLER, McGHEE and CARMODY, JJ., concur."
    ],
    "parties": [
      "O. L. CHAPMAN, Claimant-Appellee, v. Gus ANISON and John Grisolano, d/b/a El Vasito Night Club, Employers-Appellants."
    ],
    "opinions": [
      {
        "text": "COMPTON, Justice.\nThis is a proceeding under the Workmen\u2019s Compensation Act. Appellee, a commissioned deputy sheriff of San Juan County and a peace officer of the City of Farmington, sustained an injury while he was employed by appellants \u201cin keeping the peace and maintaing order in and about the * * * El Vasito Night Club\u201d being operated by appellants.\nThere is no material dispute in the evidence. Admittedly, appellee was employed by appellants for such purpose and was assaulted by one of their patrons while attempting to maintain order, but liability was denied by appellants because \u201cnight clubs\u201d do not come within the purview of the Workmen\u2019s Compensation Act, and they had not elected to become bound by the act.\nThe jury found that appellee sustained permanent total disability by reason of the injury suffered by him while so engaged. Judgment was entered on the verdict, and the employers appeal.\nThe point is made that the court erred in giving the following instruction:\n\u201cYou are instructed that if you believe from a preponderance of the evidence that claimant was employed by defendants as a peace officer to keep the peace in El Vasito Night Club, and was a duly appointed peace officer of the Town of Farmington or San Juan County, or both, at the time of the injury complained of, then claimant is covered by the provisions of the Workmen\u2019s Compensation Act of New Mexico, and his employer is subject to the provisions thereof. On the other hand, unless you do believe that claimant was so employed and was such a peace officer at the time of the injury, you are instructed that the parties are not within the scope of the Workmen\u2019s Compensation Act, and your verdict must be for defendant.\u201d\nWe think the trial court fell into error. The pertinent statute is \u00a7 59-10-10, 1953 Comp. Appellee relies on that part of the section which provides that \u201call duly elected or appointed peace officers of the state, counties or municipalities * * * shall be deemed to be following extra-hazardous occupations and to be within the provisions of this act.\u201d This position is untenable; the provision embraces public employer-employee relationship only. La Belle v. Village of Grosse Pointe Shores, 201 Mich. 371, 167 N.W. 923; Fahler v. City of Minot, 49 N.D. 960, 194 N.W. 695; Moriarty\u2019s Case, 126 Me. 358, 138 A. 555; County of Monterey v. Industrial Accident Commission, 199 Cal. 221, 248 P. 912, 47 A.L.R. 359; Millard County v. Industrial Commission, 62 Utah 46, 217 P. 974.\nIt is well settled that in a public employer-employee relationship, the employee is entitled to compensation benefits if the injury received is incident to the employee\u2019s official duties. Scofield v. Lordsburg Municipal School Dist., 53 N.M. 249, 205 P. 2d 834; Rumley v. Middle Rio Grande Conservancy Dist., 40 N.M. 183, 57 P.2d 283; Lafleur v. Johnson, La.App., 37 So. 2d 869 (Comp, case); Ferrell v. State Compensation Com\u2019r., 114 W.Va. 555, 172 S.E. 609; whereas, in a private employer-employee relationship, the employer\u2019s business or pursuit is the determining factor, Armijo v. Middle Rio Grande Conservancy Dist., 59 N.M. 231, 282 P.2d 712; Williams v. Cooper, 57 N.M. 373, 258 P. 2d 1139, and nowhere is a night club listed in the act as an extra-hazardous occupation or pursuit. It follows, appellee was not covered.\nBut we do not hold that a peace officer may not accept private employment and become covered by the Workmen\u2019s Compensation Act. Quite the contrary, a peace officer may, by accepting private employment, receive compensation benefits as any other private employee, if his employer is covered by the act, or has elected to be hound thereby, and his injury is one received incident to his duties as a private employee. Ferrell v. State Compensation Com\u2019r., supra.\nFinding prejudicial error in the instruction, the judgment is reversed and remanded with direction to the trial court to dismiss the proceeding. It is so ordered.\nLUJAN, C. J., and SADLER, McGHEE and CARMODY, JJ., concur.",
        "type": "majority",
        "author": "COMPTON, Justice."
      }
    ],
    "attorneys": [
      "H. A. Daugherty, Farmington, Gilbert, White & Gilbert, Santa Fe, for appellants.",
      "Bigbee & Stephenson, Santa Fe, for appellee."
    ],
    "corrections": "",
    "head_matter": "336 P.2d 323\nO. L. CHAPMAN, Claimant-Appellee, v. Gus ANISON and John Grisolano, d/b/a El Vasito Night Club, Employers-Appellants.\nNo. 6478.\nSupreme Court of New Mexico.\nMarch 2, 1959.\nH. A. Daugherty, Farmington, Gilbert, White & Gilbert, Santa Fe, for appellants.\nBigbee & Stephenson, Santa Fe, for appellee."
  },
  "file_name": "0283-01",
  "first_page_order": 307,
  "last_page_order": 310
}