{ "id": 2864653, "name": "Evelyn Marie THIGPEN, Plaintiff-Appellant, v. COUNTY OF VALENCIA and Great American Insurance Company, Defendants-Appellees", "name_abbreviation": "Thigpen v. County of Valencia", "decision_date": "1976-05-25", "docket_number": "No. 2370", "first_page": "299", "last_page": "302", "citations": [ { "type": "official", "cite": "89 N.M. 299" }, { "type": "parallel", "cite": "551 P.2d 989" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "71 N.M. 9", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5348153 ], "weight": 2, "year": 1962, "opinion_index": 0, "case_paths": [ "/nm/71/0009-01" ] }, { "cite": "83 N.M. 283", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5338238 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/83/0283-01" ] }, { "cite": "89 N.M. 60", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2865581 ], "weight": 2, "year": 1976, "opinion_index": 0, "case_paths": [ "/nm/89/0060-01" ] }, { "cite": "70 N.M. 468", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2852077 ], "weight": 2, "year": 1962, "opinion_index": 0, "case_paths": [ "/nm/70/0468-01" ] }, { "cite": "58 N.M. 183", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1587590 ], "weight": 2, "year": 1954, "opinion_index": 0, "case_paths": [ "/nm/58/0183-01" ] }, { "cite": "51 N.M. 493", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1578136 ], "weight": 2, "year": 1947, "opinion_index": 0, "case_paths": [ "/nm/51/0493-01" ] }, { "cite": "75 N.M. 60", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5377058 ], "weight": 2, "year": 1965, "opinion_index": 0, "case_paths": [ "/nm/75/0060-01" ] }, { "cite": "76 N.M. 691", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8504503 ], "weight": 3, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/76/0691-01" ] }, { "cite": "82 N.M. 656", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5336278 ], "weight": 2, "year": 1971, "opinion_index": 0, "case_paths": [ "/nm/82/0656-01" ] } ], "analysis": { "cardinality": 399, "char_count": 6288, "ocr_confidence": 0.802, "pagerank": { "raw": 1.505765275222232e-07, "percentile": 0.6665006338207363 }, "sha256": "13647cc81970a47668e9afd1e773254a8734b0860e49742d4a669dec6b28b209", "simhash": "1:3fe981cb9f18f9f8", "word_count": 1058 }, "last_updated": "2023-07-14T20:56:52.908635+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HENDLEY and HERNANDEZ, JJ., concur." ], "parties": [ "Evelyn Marie THIGPEN, Plaintiff-Appellant, v. COUNTY OF VALENCIA and Great American Insurance Company, Defendants-Appellees." ], "opinions": [ { "text": "OPINION\nWOOD, Chief Judge.\nThis workmen\u2019s compensation case involves the unexplained death of Deputy Sheriff Thigpen. The trial court dismissed the widow\u2019s claim for compensation at the close of plaintiff\u2019s case. The parties argue the sufficiency of the evidence to support certain of the trial court\u2019s findings and the failure of the trial court to adopt certain of plaintiff\u2019s requested findings. See, Herbert v. Sandia Savings & Loan Association, 82 N.M. 656, 486 P.2d 65 (1971). Plaintiff\u2019s proof is at this point uncontradicted. The issue is a question of law \u2014 whether under the uncontradicted proof the trial court could properly find at the close of the plaintiff\u2019s case that the deputy\u2019s death did not arise out of and in the course of employment. Ensley v. Grace, 76 N.M. 691, 417 P.2d 885 (1966).\nThree of the requirements for compensation were litigated at trial' \u2014 (1) accidental injury, (2) arising out of and (3) in the course of employment. Section 59-10-13.3, N.M.S.A.1953 (2d Repl.Vol. 9, pt. 1).\nDeputy Thigpen was assigned a patrol car. He was required to supply' his own weapons. One of his weapons was a sawed-off shotgun. The shotgun did not have a trigger guard. Thigpen\u2019s superior officer, Captain Marez, advised Thigpen not to carry such a weapon. Contrary to defendants\u2019 contention, Captain Marez testified that he never gave Thigpen any directions or orders concerning use of such a shotgun.\nThigpen was found dead, seated in the driver\u2019s seat of his patrol car. He died from shotgun wounds. The shotgun was \u201c[s]itting over the hump of the transmission, on the floor.\u201d\nThe foregoing uncontradicted proof establishes an accidental injury arising out of Thigpen\u2019s employment. Ensley v. Grace, supra; Houston v. Lovington Storage Company, 75 N.M. 60, 400 P.2d 476 (1965); Medina v. New Mexico Consolidated, Min. Co., 51 N.M. 493, 188 P.2d 343 (1947). Defendant does not claim to the contrary. The trial court erred in ruling that Thigpen\u2019s death did not arise out of his employment.\nThe trial court also ruled that Thigpen\u2019s death was not in the course of his employment. \u201cCourse of employment\u201d refers to the time, place and circumstances under which the injury occurred. Walker v. Woldridge, 58 N.M. 183, 268 P.2d 579 (1954). The term \u201cwhile at work\u201d is synonymous with \u201cin the course of the employment.\u201d Whitehurst v. Rainbo Baking Company, 70 N.M. 468, 374 P.2d 849 (1962). Compare, Edens v. New Mexico Health & Social Services Dept., 89 N.M. 60, 547 P.2d 65 (1976).\nThe trial court found that at the time of his death, Thigpen was watering his horses and performing no duties for his employer. None of the trial witnesses testified that Thigpen was watering his horses at the time of death. Testimony to this effect appears in depositions, but the depositions were not introduced as evidence. See Civil Procedure Rule 26(d) and Martinez v. Universal Constructors, Inc., 83 N.M. 283, 491 P.2d 171 (Ct.App.1971). The briefs of the parties are to the effect that Thigpen\u2019s patrol car was parked near the water tank when his body was discovered. Again, support for this fact comes basically from the depositions that were not introduced into evidence. The state of the trial record, therefore, does not support the finding of watering the horses. Since, however, it is clear that this evidence is available, we consider the finding to be before us and assume that it is eatablished that Thigpen was in fact in the process of watering his horses at the time of his death, having driven to the watering tank in his patrol car.\nOn the basis of these assumed facts, the trial court found that watering the horses was a deviation from his employment and that Thigpen was outside the course of his employment. The uncontradicted proof does not support such a finding.\nThigpen was one of two deputies assigned to duties in western Valencia County and stationed at Grants, New Mexico. Because of a shortage of gasoline, the deputies had been instructed not to patrol but to respond only to calls. On the day of his death, Thigpen was assigned to the day shift and his death occurred during this shift. His duty during the shift was to be on-call. Because his patrol car did not have a radio, any calls to Thigpen would be by telephone. During his on-call period, Thigpen was required to keep one of the police offices in Grants informed as to his whereabouts at all times so that Thigpen could be reached by telephone.\nDuring the on-call period, Thigpen could move about and engage in personal activities. \u201cThe restriction was that he had to be available at any time whether he went to a store, chore, whatever.\u201d The requirement was that Thigpen had to have his equipment and patrol car with him wherever he went so as to \u201cbe ready to go out and take a call.\u201d\nThigpen\u2019s superior officers knew that he kept horses and permitted Thigpen to water the horses during the period of time he was on-call. Thigpen\u2019s captain \u201cdidn\u2019t see nothing wrong with it.\u201d\nThe water tank for the horses was about 100 yards from Thigpen\u2019s trailer. Thigpen could hear his telephone from this area because a special bell had been installed on the outside of his trailer.\nThe uncontradicted proof is that Thigpen did not depart from his employment while watering his horses because the employer knew and consented to this practice. The contradicted proof is that in watering his horses on the day in question, Thigpen was \u201cready to go out and take a call.\u201d The showing is that Thigpen was performing the duties of his employment. Sullivan v. Rainbo Baking Company, 71 N.M. 9, 375 P.2d 326 (1962); Whitehurst v. Rainbo Baking Company, supra. The trial court erred in finding that Thigpen deviated from his employment and was not in the course of his employment under the uncontradicted proof before the trial court.\nOral argument is unnecessary. The judgment is reversed; the cause is remanded for a new trial.\nIT IS SO ORDERED.\nHENDLEY and HERNANDEZ, JJ., concur.", "type": "majority", "author": "WOOD, Chief Judge." } ], "attorneys": [ "Walter K. Martinez, Grants, for appellant.", "J. E. Casados, Gallagher & Casados, Albuquerque, for appellees." ], "corrections": "", "head_matter": "551 P.2d 989\nEvelyn Marie THIGPEN, Plaintiff-Appellant, v. COUNTY OF VALENCIA and Great American Insurance Company, Defendants-Appellees.\nNo. 2370.\nCourt of Appeals of New Mexico.\nMay 25, 1976.\nCertiorari Denied July 6, 1976.\nWalter K. Martinez, Grants, for appellant.\nJ. E. Casados, Gallagher & Casados, Albuquerque, for appellees." }, "file_name": "0299-01", "first_page_order": 335, "last_page_order": 338 }