{ "id": 2847699, "name": "Joe L. BARBER, Appellant, v. LOS ALAMOS BEVERAGE CORPORATION and Fireman's Fund Indemnity Company, Appellees", "name_abbreviation": "Barber v. Los Alamos Beverage Corp.", "decision_date": "1959-01-23", "docket_number": "No. 6203", "first_page": "323", "last_page": "332", "citations": [ { "type": "official", "cite": "65 N.M. 323" }, { "type": "parallel", "cite": "337 P.2d 394" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "92 F.2d 255", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1014443 ], "opinion_index": 0, "case_paths": [ "/f2d/92/0255-01" ] }, { "cite": "166 N. E. 78", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "334 Ill. 390", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5221362 ], "opinion_index": 0, "case_paths": [ "/ill/334/0390-01" ] }, { "cite": "58 N.M. 183", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1587590 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/58/0183-01" ] }, { "cite": "60 N.M. 143", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1590377 ], "weight": 2, "pin_cites": [ { "page": "688" } ], "opinion_index": 0, "case_paths": [ "/nm/60/0143-01" ] }, { "cite": "151 Fla. 171", "category": "reporters:state", "reporter": "Fla.", "case_ids": [ 1970764 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/fla/151/0171-01" ] }, { "cite": "113 Utah 504", "category": "reporters:state", "reporter": "Utah", "case_ids": [ 8870559 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/utah/113/0504-01" ] }, { "cite": "43 S.W.2d 198", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "163 Tenn. 373", "category": "reporters:state", "reporter": "Tenn.", "case_ids": [ 8532374 ], "opinion_index": 0, "case_paths": [ "/tenn/163/0373-01" ] }, { "cite": "52 Idaho 151", "category": "reporters:state", "reporter": "Idaho", "case_ids": [ 2343480 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/idaho/52/0151-01" ] }, { "cite": "107 A.L.R. 924", "category": "reporters:specialty", "reporter": "A.L.R.", "pin_cites": [ { "page": "933" } ], "opinion_index": 0 }, { "cite": "187 A. 887", "category": "reporters:state_regional", "reporter": "A.", "opinion_index": 0 }, { "cite": "171 Md. 39", "category": "reporters:state", "reporter": "Md.", "case_ids": [ 2257530 ], "opinion_index": 0, "case_paths": [ "/md/171/0039-01" ] }, { "cite": "63 N. M. 85", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2778433 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/63/0085-01" ] }, { "cite": "227 P.2d 367", "category": "reporters:state_regional", "reporter": "P.2d", "opinion_index": 0 }, { "cite": "55 N.M. 81", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582960 ], "opinion_index": 0, "case_paths": [ "/nm/55/0081-01" ] }, { "cite": "48 N.M. 149", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1560819 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/48/0149-01" ] }, { "cite": "258 P. 1139", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": 0 }, { "cite": "57 N.M. 373", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8841911 ], "opinion_index": 0, "case_paths": [ "/nm/57/0373-01" ] }, { "cite": "249 P. 662", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": 0 }, { "cite": "80 Colo. 112", "category": "reporters:state", "reporter": "Colo.", "case_ids": [ 5342154 ], "opinion_index": 0, "case_paths": [ "/colo/80/0112-01" ] } ], "analysis": { "cardinality": 945, "char_count": 21044, "ocr_confidence": 0.695, "pagerank": { "raw": 7.732221118624866e-08, "percentile": 0.45472612495940884 }, "sha256": "408c466e6cb7ee37f752f45e77f951999e453be85c2d2ad0bd77b43fb07efa35", "simhash": "1:abbb508f8394a6fb", "word_count": 3678 }, "last_updated": "2023-07-14T21:31:57.534627+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "LUJAN, C. J., and McGHEE and COMPTON, JJ., concur.", "CARMODY, J., having tried the cause below, did not participate." ], "parties": [ "Joe L. BARBER, Appellant, v. LOS ALAMOS BEVERAGE CORPORATION and Fireman\u2019s Fund Indemnity Company, Appellees." ], "opinions": [ { "text": "SADLER, Justice.\nDue to changing personnel of the Court and other fortuitous circumstances unnecessary to mention this case has come to rest on my doorstep since the new year. Accordingly, it fell to my lot to stpp its meandering across the docket and prepare an opinion for disposition of the appeal. Now for the facts.\nThe case had its origin in the Atomic City of Los Alamos in the first judicial district. It is a workmen\u2019s compensation case in which a jury was demanded. At the close of plaintiff\u2019s case, the defendants moved for a directed verdict which motion the trial court granted and judgment was entered in their favor. Hence, this appeal.\nThe plaintiff, Joe L. Barber, lives in Los Alamos, New Mexico, and at the time of his injury was working regularly with the Fire Department of that city. On March 13, 1956, a fellow fire fighter, Wilbur L. Johnston, told plaintiff, a Mr. Kelch had called witness and wanted some extra men to work that day and asked him to come down to' the beverage office, shortly after getting off from work and he, Johnston, would meet him there. Several of the employees of the Beverage Corporation held regular employment as firemen or security officers and worked at Beverage Corporation on their off duty time; Johnston being one of them. His call to the plaintiff was pursuant to the instructions from the manager of Los Alamos Beverage Corporation to get some \u201cextra men\u201d to work.\nAfter receiving the request from Johnston, the plaintiff proceeded to the office of the Beverage Corporation and was there introduced to Mr. Raymond Kelch, its manager. As a matter of fact there were two warehouses paralleling one another with a long loading dock running in front of them of which the Beverage Corporation and PDQ Van and Storage Company made common use. Notwithstanding this close association between the two companies, the factual situation was further complicated in that Raymond Kelch was the manager for both companies. This was a fact not known by the plaintiff at the time of his employment.\nThe Los Alamos Beverage Corporation had an office in one of the two adjoining warehouses and the business of PDQ Van and Storage Company was conducted from this office. The employees of both companies used a time clock located in the Los Alamos Beverage Corporation office. Nevertheless, they were two separate and distinct corporations, the primary business of the former was the distribution of soft drinks and the handling and storing of soft drinks while the business of the latter was general warehousing, moving and storage. The two businesses were recognized by Raymond Kelch, the manager of each, as separate and distinct. The Beverage Corporation was located and occupied premises known as 120-D. and PDQ was located at and occupied premises known as 120-C on 7th Street in Los Alamos under separate leases from the Zia Company, '\u00edhe two premises were separated by an intervening space, \u2014 a boiler room, \u2014 had no cpmmon entrance and no intercommunicating door.\nAs indicated above, there was a loading dock extending the full length of the buildipg in which the two businesses referred to operated. Kelch, at all material times, manager of and operating both businesses, had formed an intention some three months previously to purchase both businesses.\nThree witnesses testified touching the circumstances of plaintiff\u2019s employment. Kelch, the manager, testified he did not know who arranged for plaintiff to come down to work. Johnston testified that Kelch \u00a1called him that morning, March 13, 1956, iand asked him to get some \u201cextra\u201d men,\u2014 that he had some work to do \u201cthat day,\u201d\u2014 some \u201cextra\u201d work, and that he, Johnston, told plaintiff Kelch wanted some more men to work \u201cthat day.\u201d The plaintiff, himself, confirmed Johnston\u2019s testimony that he was asked over the telephone by Johnston if he wanted to work that day and that he said he would like to do so.\nWhen plaintiff arrived at the place of business of the Beverage Corporation, he was introduced to Kelch. Kelch did not seem to remember whether he talked to plaintiff or not. Plaintiff said Kelch simply asked him if he \u201cconsidered to work there that day.\u201d Kelch testified that he had no' understanding with the plaintiff in regard to pay nor did he remember having informed plaintiff whom he was working for. There was no understanding between them before plaintiff started to work with regard to the nature of ' his employment or how long it was to continue or when he was to work.\n\u2018 Indeed, it was after March 13, the date of the accident, that he learned that Kelch was associated with Beverage and was also associated with PDQ; that Kelch never explained or said anything to him about there being two different concerns and plaintiff paid no attention to any difference between them. That he did not know for whom Kelch was acting when he was employed, simply thinking he would work for the business that Kelch was in.\nThe plaintiff was employed by Kelch in his capacity as manager of the Beverage Corporation, as he testified. Some furniture of D.raggon Drug Company had been stored in the warehouse of Beverage Corporation and upon reporting .for work the plaintiff was engaged in moving this furniture out of the warehouse . of Beverage Corporation where it had enjoyed tempora'ry haven onto the dock; thence in due course into the PDQ warehouse where it was placed in storage for an indefinite period. It was while doing the latter with furniture from Beverage or from the moving van, next mentioned, that he suffered the injury on account of which the present claim was filed. Furthermore, at some time in the forenoon a moving van from Albuquerque arrived with furniture and the plaintiff was 'engaged for a time with another workman in moving and placing this furniture, or a portion of the load in the moving van into the PDQ warehouse.\nThe plaintiff testified concerning the work on which he was engaged at time of his injury, as follows:\n\u201cQ. Just what, exactly, were you doing when this injury occurred? A. We were placing a sofa or a couch, I don\u2019t know whether it would be termed which one; of the light foam rubber type, the newer type, up on a, I said a shelf, it was built about six feet high to get it off the floor to keep your covering from being torn. When the. other man wasn\u2019t able to raise it on up, I was caught in an awkward position with it over my head and had to let it back down.\n\u201cQ. Who had directed you to do that, sir ? A. Mr. Kelch had ' directed me to help this other man clean up the warehouses, store these overstuffed chairs and things off the floor onto this shelf built up.\n\u201cQ. Do you recall being paid for the work that you performed on the 13th, March 13th? A. Yes, sir.\n\u201cQ. I will hand you Plaintiff\u2019s Exhibit No. 2 and ask you to state whether you recognize your signature of endorsement on the back of that check? A. It is my signature.\n\u201cQ. Will you state whether that is a check that you did receive in payment for services? A. This is the check I received, yes, sir.\n\u201cQ. Have you ever drawn any pay from PDQ? A. No, sir.\n\u201cQ. Will you state whether the check identified as Exhibit No. 2 represents all of the pay that you received from Los Alamos Beverage Company? A. It is, yes, sir.\u201d\nIt appeared from the testimony, also, that a deposition had previously been taken and plaintiff was cross-examined in a spirited fashion relative to some testimony given in the deposition of which the following is an example:\n\u201cQ. Mr. Barber, you stated all of the work wasn\u2019t done in the PDQ warehouse. Then Mr. Catron asked you if the rest of it was out on the dock. Did you work any place other than this warehouse that you learned to be PDQ and the dock? A. We brought out, I don\u2019t remember what all, from the other warehouse, which they 'say now is the Los Alamos Beverage Company, to be stored and placed in the other warehouse.\n\u201cQ. Then was it your intention to answer Mr. Catron in such a way as to create an impression that all your work was right there at the PDQ warehouse? Did you understand my question ? A. I didn\u2019t.\u201d\nAs shown hereinabove Kelch, himself,, testified he employed plaintiff for Beverage Company and he was actually paid by that company for the short period of time he labored prior to his injury which took place near the noon hour. Yet, as the testimony disclosed, the plaintiff did not know for which of the two corporations he was working at the time he reported for work. The plaintiff, himself, so testified. It also appeared in evidence that in the cleaning up operation on which plaintiff testified he was engaged part of the morning, he moved a case or two of Coca-Cola, a product of Beverage Corporation\u2019s business from one location 'to another.\nAfter his injury and during the afternoon of March 13th, the plaintiff was detailed to do some work at the home of Mr. Wilcoxen who is the president of the Beverage Corporation. At the close of the plaintiff\u2019s case, the defendants moved for a directed verdict upon grounds, among others, as follows:\n\u201c2. That, if plaintiff' was, in effect, employed by the beverage company, he did not become a workman within the meaning of our Compensation Act and was not subject to the act, because the evidence, viewed in the light most favorable to plaintiff, shows that his employment was purely casual and not for the purpose of the beverage company\u2019s trade or business.\n\u201c3. If plaintiff was an employee of the beverage company and was a workman within the meaning of the act as the term workman is defined therein, the evidence viewed in the light most favorable to plaintiff shows that at the time of his injury he was not engaged in any work of the beverage company, but was, in fact, doing the work of PDQ Van and Storage, Inc.\u201d\nThe motion to direct a verdict was argued at length before the court and upon the conclusion of the argument, the court sustained the motion by directing a verdict for the defendants. Judgment in conformity with the verdict was duly entered and from which the plaintiff prosecutes this appeal.\nAt the beginning of their argument counsel for defendants in a three paragraph analysis summarize the evidence, as reduced to the material, ultimate facts, as follows:\n\u201cThat Plaintiff was asked if he wanted to work \u2018that day\u2019 and volunteered to work \u2018that day.\u2019 That he was an extra man, employed to do extra work. That he had no arrangement or agreement with Kelch with respect to whom he was working for, what he was to be paid, who was to pay him, or that he was to work any longer than that one day.\n\u201cThat he didn\u2019t even know that Kelch had any position with Beverage until after his accident, didn\u2019t know who Kelch was acting for, didn\u2019t know that there were two different concerns, and in fact thought that he was working for Kelch, personally, in whatever business Kelch was in.\n\u201cThat the work Plaintiff was doing that day, and more particularly at the time of his injury and for some time prior thereto, was definitely work that pertained to the business and operations of PDQ, was being done in the PDQ warehouse, and was in no way related to the business and operations of Beverage.\u201d\nOn the whole we think the foregoing analysis of the testimony is fairly accurate. We shall not attempt to set out in detail the testimony from which the trial judge drew these ultimate conclusions beyond a reference to certain portions thereof as we develop the same in discussion. ' It is enough to state at the outset that we are fully convinced the plaintiff was a \u201ccasual\u201d employee, as held by the.trial judge, within the purview of 1953 Comp. \u00a7 59 \u2014 10\u2014 12(i), reading:\n\u201c \u2018Workman\u2019 means any person who has entered into the employment of or works under contract of service or apprenticeship, with an employer, except a person whose employment is purely casual and not for the purpose of the employer\u2019s trade or business. * * * \u201d\nIn presenting his argument under this phase of the case, counsel for plaintiff cite the Colorado case of Lackey v. Industrial Commission, 80 Colo. 112, 249 P. 662, and the New Mexico cases of Williams v. Cooper, 57 N.M. 373, 258 P. 1139; McKinney v. Dorlac, 48 N.M. 149, 146 P.2d 867, and Wilson v. Rowan Drilling Co., 55 N.M. 81, 227 P.2d 367. The Colorado case, if anything, supports the judgment of the trial court on this appeal. Among other things the court said:\n\u201c * * * Jacks was employed by the day, not exceeding six days in all. When he left Lackey would tell him when to come back. Casual is an antonym of regular; Jack\u2019s employment was irregular and therefore casual. Lawlor was employed to relay some cement floor or driveway, to be paid by the day. When hurt he was helping to lay shingles because rain prevented work on the cement job. By no process of reasoning can he be called a regular employee.\n* * * * * *\n\u201cIt is claimed that there is a question of fact here which the commission has decided. We do not think so. We think the facts are unquestioned, and that the only question is one of law \u2014 namely, what is the proper construction of the word \u2018casual\u2019 and the words \u2018usual course of trade?\u2019\u201d\nThe court in the Lackey case, among other things, held the employment was casual and reversed the judgment with instructions to the district court to set aside the award of the commission. Actually, the facts here are much stronger than in the Lackey case. There the workman was employed by the day not exceeding six days in all. When he left Lackey would tell him when to come back. Here, there was an employment for one day only for certain, the employee being injured on the first day of his work. Compare, Sanchez v. Board of County Commissioners, 63 N. M. 85, 313 P.2d 1055.\nThe New Mexico cases cited are not in point but nothing in any of them is authority against the position upheld by the trial judge in this case now before us. Williams v. Cooper, dealt with .facts where a defendant operated a farm as his general occupation and as a side line operated a dance hall, and had hired plaintiff, a carpenter, to construct an addition, thereto, was neither an \u201cemployer,\u201d nor engaged in an \u201cextra-hazardous occupation\u201d within Workmen\u2019s Compensation Act. Judgment for an award was reversed and the complaint ordered dismissed. Neither McKinney v. Dorlac nor Wilson v. Rowan Drilling Company have any bearing on the portion of the Act accepting from its provisions \u201ca person whose employment is purely casual and not for the purpose of the employer\u2019s trade or business.\u201d 1953 Comp. \u00a7 59-10-12 (i).\nWhen the plaintiff had rested the trial judge in granting the motion for directed verdict, said:\n\u201c * * * I can\u2019t help but be convinced that from the evidence he was a casual employee and he was not, when he was injured, working for the Beverage Company\u2019s trade or business * * *.\u201d\nOn that short, terse statement, we think, rests the rationale of the trial court\u2019s action in directing a verdict against the plaintiff. While it is strongly urged by counsel for defendants evidence is lacking that an employer-employee relationship existed between plaintiff and the Beverage Corporation, plaintiff, himself, saying he did not know there were two separate companies, or if he had known, which of them he was working for; that all he knew, or had in mind, was that he was working for Kelch, or whatever organization Kelch served; (and he served them both) \u2014 we do not choose to rest the result we declare upon this ground.\nEven if an employer-employee relationship did exist, the evidence is so overwhelming that plaintiff was a person whose employment was \u201cpurely casual\u201d and not for the purpose of the employer\u2019s trade or business, within the purview of 1953 Comp. \u00a7 59-10-12, and that, treated as an employee of Beverage Corporation, he was at the time of the injury on loan from it to the PDQ Storage Company, or \u201cspecial\u201d employee of the latter company, that we prefer to rest our opinion on those two considerations.\nGiving due effect to the testimony of the witness, Johnston, through whom any relationship of employer-employee was effected, if at all; that of'plaintiff, himself, and of Kelch as to what occurred prior to the time plaintiff went to work (and it stands undisputed); plus the additional, uncontroverted fact, that plaintiff was at time of the injury performing work for benefit of PDQ warehouse, we fail to see how it can be successfully maintained plaintiff\u2019s employment was other than casual.\nThe witness, Johnston, testified Kelch called him that same morning, March 13th, and asked him to get some \u201cextra\u201d men,\u2014 that he had some work to do \u201cthat day,\u201d some \u201cextra\u201d work; that he told plaintiff that Kelch wanted some more men to work \u201cthat day.\u201d\nPlaintiff, himself, testified that he was asked over the telephone by Johnston if he wanted to work \u201cthat day\u201d and that he said he would like to; that he was called and asked if he wanted to work \u201cthat day\u201d and he volunteered to work \u201cthat day\u201d; that when he reported for work Kelch simply asked him if \u201che considered to work there that day.\u201d\nFor authorities supporting the conclusion we reach in holding the plaintiff\u2019s employment was \u201cpurely casual,\u201d see, Moore v. Clarke, 171 Md. 39, 187 A. 887, 107 A.L.R. 924, 933; Orr v. Boise Cold Storage Co., 52 Idaho 151, 12 P.2d 270; Gibbons v. Roller Estates, 163 Tenn. 373, 43 S.W.2d 198; Sommerville v. Industrial Comm., 113 Utah 504, 196 P.2d 718; compare, County of Leon v. Sauls, 151 Fla. 171, 9 So.2d 461.\nFurthermore, if in any circumstances the plaintiff may be considered an employee of the Beverage Corporation, the evidence is conclusive that at the time of his injury he was engaged on work for the benefit and advantage of PDQ Corpora-tion and must be deemed to have been on loan from the Beverage Corporation to PDQ as a \u201cspecial\u201d employee. Hence, his injury did not arise out of, or in the course of his employment, by the Beverage Corporation, and he was not when he was injured \u201cworking for the purpose of Beverage\u2019s trade or business.\u201d See, 35 Am. Jur. 455, \u00a7 18 (Master & Servant) ; Dunham v. Walker, 60 N.M. 143, 288 P.2d 684, 688; Compare Walker v. Woldridge, 58 N.M. 183, 268 P.2d 579; Allen-Garcia v. Industrial Commission, 334 Ill. 390, 166 N. E. 78; Jones v. George F. Getty Oil Co., 10 Cir., 92 F.2d 255.\nAs we said in Dunham v. Walker, supra :\n\u201cIt being so obvious from foregoing testimony that the Billy Walker winch truck was detained under the circumstances shown to assist in the work of unloading sills from a Howard Holmes truck, and all details and direction of the work being under the direct supervision of two drilling superintendents and .a tool pusher of the Howard Holmes Company, it is easy to understand the contention of counsel for defendant, with which we are compelled to agree, that for purposes of the work underway, the driver of the Billy Walker truck became a special employee of Howard Holmes Drilling Company. If he was, then his acts became those of his special employer by reason whereof no liability in the premises can attach to Billy Walker for the negligence, if any, of the driver of. the Billy Walker winch truck so engaged.\"\nThe facts in the case at bar are most unusual in that Kelch, the manager of both companies, operated in a dual capacity. Figuratively, he wore two hats\u2014 a \u201cbeverage\u201d hat and a \u201cPDQ\u201d hat. Inasmuch as the office of both companies was on the premises of the Beverage Corporation, when he was engaged in its work he wore the Beverage hat but when \u201cin or out of the common office,\u201d he turned his hand to attend affairs of the PDQ Company, he became garbed in the PDQ hat. This in itself complicated matters enough, but when we remember both companies had their offices in the same building on the Beverage property, that on occasion work done for the one company was paid by checks of the other, and vice versa, \u2014 we have only confusion worse confounded.\nThis record presents a tangled web of facts, rendering most difficult the sifting and isolation of the decisive ones which dictate a certain result. Viewed, however, from any standpoint, this much stands out in the record \u2014 that plaintiff was regularly employed on another job; that this particular work was undertaken on a call for \u201cextra\u201d men on off duty hours from the regular job; that even assuming him to be an employee of Beverage Corporation, he was doing work for another company away from the premises of his employer, inside the other\u2019s premises, and had been so engaged for some unnamed, uncertain time, when his injury occurred.\nA careful review of the entire record satisfies us the trial was free from error and that the judgment should be affirmed.\nIt is so ordered.\nLUJAN, C. J., and McGHEE and COMPTON, JJ., concur.\nCARMODY, J., having tried the cause below, did not participate.", "type": "majority", "author": "SADLER, Justice." } ], "attorneys": [ "O. Russell Jones, Jack Smith, Santa Fe, for appellant", "Catron & Catron, Santa Fe, for appellees." ], "corrections": "", "head_matter": "337 P.2d 394\nJoe L. BARBER, Appellant, v. LOS ALAMOS BEVERAGE CORPORATION and Fireman\u2019s Fund Indemnity Company, Appellees.\nNo. 6203.\nSupreme Court of New Mexico.\nJan. 23, 1959.\nRehearing Denied April 16, 1959.\nO. Russell Jones, Jack Smith, Santa Fe, for appellant\nCatron & Catron, Santa Fe, for appellees." }, "file_name": "0323-01", "first_page_order": 347, "last_page_order": 356 }