Nichols v. Texico Conference Ass'n of Seventh Day Adventists

438 P.2d 531, 78 N.M. 787
CourtNew Mexico Court of Appeals
DecidedFebruary 23, 1968
Docket103
StatusPublished
Cited by7 cases

This text of 438 P.2d 531 (Nichols v. Texico Conference Ass'n of Seventh Day Adventists) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nichols v. Texico Conference Ass'n of Seventh Day Adventists, 438 P.2d 531, 78 N.M. 787 (N.M. Ct. App. 1968).

Opinion

OPINION

OMAN, Judge.

A prior appeal in this cause was dismissed because the judgment from which plaintiff sought to appeal was not appealable. Nichols v. Texico Conference Association, 78 N.M. 310, 430 P.2d 881 (1967).

At the conclusion of plaintiff’s case upon the trial, the court directed a verdict for defendant, Texico Conference Association of Seventh Day Adventists. From judgment entered upon this verdict plaintiff has taken the present appeal.

The trial court directed the verdict for defendant upon the grounds that: (1) defendant owed no duty to plaintiff which was breached, and (2) plaintiff assumed the risk.

Since we hold the trial court correctly directed a verdict for defendant on. the ground of absence of duty owed hy defendant to plaintiff, we do not consider the question of assumption of risk.

The material facts are that defendant, Texico Conference Association of Seventh Day Adventists, operates a private boarding school for boys in New Mexico. As a part of its “philosophy of education” it undertakes to give the students an opportunity to work their way through school. However, there is no compulsion on a student to work.

Plaintiff entered the school during the summer of 1960. At that time he was fifteen years of age and was entering the ninth grade. Plis parents were unable to pay for his tuition, room and board, so he was to largely finance his education by working.

At that time the school operated a farm, a dairy and a broom factory, and later, while plaintiff was in attendance at the school, it also operated a furniture factory. Students were employed to work in all of these, as well as in the school’s maintenance department.

Plaintiff’s brother had attended the school, had worked at the dairy, and had told plaintiff of some of his experiences in the handling of the animals. Plaintiff chose to work at the dairy. After a short period of work on the farm, he was placed in the dairy where he continued to work until Saturday, May 26, 1962, when he sustained the injuries out of which this suit arises.

Except for a short period of time at the beginning of his work at the dairy, his job was that of milking cows by machine.

In about October or November of 1960, defendant brought a bull calf to the dairy. At that time the calf’s horns were beginning to “sprout,” but he was still quite small and was gentle.

On April 24, 1961, the school leased the dairy premises and buildings, the dairy herd, and the bull to a Mr. Koger, who had no connections with the school other than his rights and obligations under the lease agreement. He was highly recommended as one who knew cattle and the operation of a dairy. He was operating a dairy of his own at the time the lease was executed.

Under the lease, Koger agreed to use student labor exclusively. However, he could dismiss or discharge any student he wished. Plaintiff was given the opportunity to continue working at the dairy for Koger, and he elected to so do. From that day on, Ko-ger directed and supervised his work, gave him orders concerning his work, and paid him for his work. Defendant and none of its personnel thereafter exercised or had any right to exercise any control or supervision over plaintiff’s duties at the dairy, and had no possession of the bull.

After Koger began operation of the dairy under the lease agreement, the bull calf, as it grew, became mean and dangerous. Ko-ger warned plaintiff that this bull was dangerous and plaintiff knew from his own observations and experiences around the dairy that this bull was mean, dangerous, unmanageable and unpredictable.

Plaintiff had no duties connected with the care, control or management of the bull. His job was that of milking cows.

On the evening of Thursday, May 24, 1962, Plaintiff discovered that the bull was not in the corral where Koger kept him, but was free and in the area of a silo and haystack at the dairy.

Plaintiff went to the home of the school’s farm manager and borrowed a tractor for use in herding, or “pushing,” the bull into the corral.

The next day he reached through an opening in the corral fence and attached a chain to a ring, which had some time prior thereto been placed in the bull’s nose by a veterinarian. Plaintiff attached the chain to this ring because he understood this would tend to tame the bull.

After completing their milking duties on the morning of Saturday, May 26, plaintiff and another student set about to move the bull from the corral in which he was then enclosed into the corral in which he was normally kept by Koger. They proposed to do this by having plaintiff get hold of the chain and pull, and by having the other student aid in some other way in getting the bull to move forward. They intended to accomplish the movement of the bull by remaining on the outside of the corral fence, which was about shoulder-high on the plaintiff. Plaintiff had never gone inside the same corral with the bull after he was grown, because, as he stated, “I knew it was dangerous.”

Plaintiff reached over the fence and grabbed the end of the chain in both hands. He admittedly, at that moment, realized that what he was doing was dangerous and that he might be hurt by the bull. The chain was about two or three feet long, and as plaintiff grabbed it, he pulled. The bull threw his head upward and away from the fence. Plaintiff held on to the chain and was pulled over the fence and into the corral. The bull then gored him, causing the injuries about which he complains in this suit.

He admitted that at that time he was acting as an employee of Koger, and that he was performing no duties pertaining to his status as a student at the school.

Plaintiff contends defendant had the duty to supervise and instruct him in the manner of handling the bull. However, as already noted, he at no time had any duties which required him to handle the bull, and, after Koger took over the operation of the dairy under the lease, defendant had no control over the management or handling of the bull and no control over plaintiff in the performance of his duties as an employee of Koger.

Plaintiff relies upon the holdings in McMullen v. Ursuline Order of Sisters, 56 N.M. 570, 246 P.2d 1052 (1952); Suits v. Glover, 260 Ala. 449, 71 So.2d 49, 43 A.L.R. 2d 465 (1954); Ziegler v. Santa Cruz City High School District, 168 Cal.App.2d 277, 335 P.2d 709 (1959); O’Rourke v. Walker, 102 Conn. 130, 128 A. 25, 41 A.L.R. 1308 (1925); Miller v. Concordia Teacher’s College, 296 F.2d 100 (8th Cir. 1961); Gott v. Berea College, 156 Ky. 376, 161 S.W. 204 (1913).

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Bluebook (online)
438 P.2d 531, 78 N.M. 787, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nichols-v-texico-conference-assn-of-seventh-day-adventists-nmctapp-1968.