Wilson v. Rowan Drilling Co. ( 1950 )

SADLER and McGHEE, Justices

(dissenting in part).

. We concur in the prevailing opinion in so far as it declines to overrule McKinney v. Dorlac, 48 N.M. 149, 146 P.2d 867, and Barrington v. Johnn Drilling Co., 51 N.M. 172, 181 P.2d 166, on the effect the opinions in those cases give the language from 1941 Comp. Sec. 57-912 (J) italicized in the quotation therefrom next hereinafter, to-wit: “The words ‘injuries sustained in extra-hazardous occupations or pursuit/ as used in this act (§§ 57-901-57-931) shall include death resulting from injury, and injuries to workmen, as a result of their employment and while at work in or about the premises occupied, used or controlled by the employer, and injuries occurring elsewhere while at work in any place where their employer's business requires their presence and subjects them to extra-hazardous duties incident to the business, but shall not include injuries to any workman occurring while on his way to assume the duties of his employment or after leaving such duties, the approximate cause of which injury is not the employer’s negligence.” (Emphasis ours.)

We dissent from the remainder of the prevailing opinion. We think there is enough confusion and uncertainty about what was actually agreed or stipulated below to render it only fair and just to remand the case for a new trial where the facts may be fully developed as a basis for conclusions-to be drawn. This is especially true of that portion of the stipulation relating to the car-pooling arrangement under which, as held by the majority, the duty of transporting his crew of four to and from work at his own expense is imposed on the driller.

It would be repetitious for us again to set out the reasons which led us to dissent from the majority opinion filed herein, following submission. For the reasons stated in the dissenting opinion in this case, and for the added reason that confusion and uncertainty exist as to the facts on which defendants are held bound, we are unable to join in denying the motion for rehearing. We think it should be granted. Because the majority conclude otherwise.

We dissent.