¶1(concurring specially).
¶2Although I agree that the case should be affirmed, I reach my conclusion through different reasoning than that adopted by the majority.
¶3Plaintiff, a corporation doing business in New Mexico, had contracted with defendant Shaw, a New Mexico resident, “to furnish a workover rig and laborers for the purpose of enabling him to accomplish the-removal or pulling of casing from an oil and gas well on an hourly basis of $23.00 per hour, plus the cost of rental tools and equipment required, and plus the laborers’ expenses,” all under the supervision and control of defendant and his agent. The trial court concluded that this was an employer-employee relationship, and the majority, by its opinion, affirms this determination.
¶4■ My disagreement arises out of my inability to find in the proof any basis for holding the relationship to be one of master and servant. I have considered our cases wherein we discussed the elements entering into a determination of whether a given individual is an employee or independent contractor, and have noted that one of the principal considerations distinguishing one from the other is the measure of control or supervision exercised over the performance of the project. Shaver v. Ray Bell Oil Co., 74 N.M. 700, 397 P.2d 723 (1964); Shipman v. Macco Corporation, 74 N.M. 174, 392 P.2d 9 (1964). However, control is not the exclusive qualification. No case has been called to my attention where control of manner or method of performing labor has resulted in a determination that a corporation was an employee or servant, and I doubt if in the nature of things it could be. See Annot., 20 A.L.R. 684, 802 (1922); Dukes, Receiver v. Love, Executrix, 97 Ind. 341 (1884). It would appear to me that a corporation as a servant or employee cannot be reconciled with the traditional concept of corporations as artificial beings created by law, 18 C.J.S. Corporations § 1, p. 366 with its business managed by a board of directors as required by statute. § 51-2-14, N.M.S.A.1953. Although corporations in numerous circumstances are regarded as “persons,” they are “artificial persons.” State ex rel. Northwestern Colonization & Improvement Co. v. Huller, 23 N.M. 306, 168 P. 528, 1 A.L.R. 170 (1917); 18 Am.Jur.2d 569, Corporations, § 20. I know of no instance where corporations have been considered to be “persons” so as to make the corporation an “employee.” See 18 C.J.S. Corporations § 8, p. 386. As a matter of fact, I find it! difficult to conceive how an artificial person can be an employee, or how control and direction of an employer can be substituted for the management required of a board of directors.
¶5It seems to me the trial court came to a correct conclusion and should be affirmed, even though its finding and conclusion of an employer-employee relationship cannot be supported. There was ample basis for its conclusion and, under the circumstances, the error was harmless and does not require reversal. Hancock v. Berger, 77 N.M. 321, 422 P.2d 359 (1967).
¶6Since the court found a contract between the parties and performance by plaintiff, for which it had not been paid, I see nothing interfering with plaintiff’s right to judgment. I appreciate that the contract was principally performed in Arizona and that plaintiff had no contractor’s license in Arizona. I also recognize that Arizona law requires every person, firm or corporation doing work such as that undertaken by plaintiff here for compensation other than “actual wages” (§ 32-1101, Ariz.Rev. Stat.1956) to be licensed as a contractor in Arizona, or be denied the right to maintain a civil action in its courts to recover payment therefor. § 32-1153, Ariz.Rev.Stat. 1956. I do not find in the arrangement between the parties, any agreement that plaintiff’s compensation is in the nature of “actual wages.” For cases considering when compensation is or is not “wages” see Commercial Motor Freight v. Ebright, 143 Ohio St. 127, 54 N.E.2d 297, 151 A.L.R. 1321 (1944); In re Thomas Deutschle & Co., 182 F. 430 (D.C.M.D.Pa.1910); Campfield v. Lang, 25 F. 128 (C.C.E.D.Wis.1885).
¶7As I see the problem there is no reason for us to apply Arizona law, under the facts here present. The contract was made in New Mexico, presumably with intention of both parties that it be binding and enforceable in our courts, under our laws. Why, then, should we deny plaintiff access to the New Mexico courts? See 16 Am.Jur.2d 58, Conflict of Laws, § 39. Although under some conflict of laws theories, we would-apply Arizona law, others recognize our right to proceed under our own law. For a review of the various theories and policy considerations entering into such determinations, see 52 Colum.L.Rev. 959; Ehren-zweig, Conflict of Laws, §§ 173, 174, 175, et seq.; 32 Rocky Mt.L.Rev. 13; 46 Iowa L.Rev. 713; Lilienthal v. Kaufman, 239 Or. 1, 395 P.2d 543, 545 (1964); Woolley v. Bishop, 180 F.2d 188, 192 (10th Cir., 1950). I would decide the issues by applying New Mexico law, and when this is done plaintiff must prevail.
¶8For the reasons stated, I specially concur in the opinion concluding that the case should be affirmed.