453 P.2d 192 (N.M. 1968), 8473, McCauley v. Ray

Docket Nº:8473.
Citation:453 P.2d 192, 80 N.M. 171, 1968 -NMSC- 194
Opinion Judge:[10] Chavez
Party Name:Stephen Frank McCAULEY, Plaintiff-Appellee, v. Charles RAY and Brock Cattle Company (NSL), a New Mexico Corporation, Defendants-Appellants.
Attorney:E. Forrest Sanders, W. W. Bivins, Joe H. Galvan, Las Cruces, for appellants., Burks & Wanek, Garnett R. Burks and Ralph D. Wanek, Las Cruces, Rodey, Dickason, Sloan, Akin & Robb, Robert G. McCorkle, Albuquerque, Serna & Martin, Silver City, for appellee. [7] BURKS & WANEK, GARNETT R. BURKS and R...
Judge Panel:MOISE and CARMODY, JJ., concur.
Case Date:December 16, 1968
Court:Supreme Court of New Mexico

Page 192

453 P.2d 192 (N.M. 1968)

80 N.M. 171, 1968 -NMSC- 194

Stephen Frank McCAULEY, Plaintiff-Appellee,

v.

Charles RAY and Brock Cattle Company (NSL), a New Mexico

Corporation, Defendants-Appellants.

No. 8473.

Supreme Court of New Mexico.

December 16, 1968

Rehearing Denied April 24, 1969.

Page 193

[80 N.M. 172] E. Forrest Sanders, W. W. Bivins, Joe H. Galvan, Las Cruces, for appellants.

Burks & Wanek, Garnett R. Burks and Ralph D. Wanek, Las Cruces, Rodey, Dickason, Sloan, Akin & Robb, Robert G. McCorkle, Albuquerque, Serna & Martin, Silver City, for appellee.

OPINION

CHAVEZ, Chief Justice.

Suit was brought by plaintiff-appellee Stephen Frank McCauley in the district court of Grant County against defendants-appellants, Charles Ray and Brock Cattle [80 N.M. 173]

Page 194

Company, and against defendant Grace B. Ray to recover damages for personal injuries resulting from a shooting. The jury returned a verdict for appellee and against appellants in the amount of $470,000. From the judgment on the verdict, appellants bring this appeal.

In his complaint appellee alleged, among other things, that on or about August 9, 1965, Charles Ray willfully, wantonly, maliciously and in heedless and reckless disregard of appellee's rights, shot appellee in the chest with a 22 caliber rifle; that Charles Ray and Grace B. Ray were at the time of the shooting agents of Brock Cattle Company and were acting within the scope of such agency; that at the time of the shooting appellant Charles Ray had a vicious and violent disposition and temperament which was known, or in the exercise of due care should have been known, to Grace B. Ray and Brock Cattle Company; that Grace B. Ray and Brock Cattle Company were negligent in retaining Charles Ray as an agent of Brock Cattle Company, and in permitting him to come into contact with the general public in connection with the business of Brock Cattle Company. Appellee predicated liability of Brock Cattle Company (1) upon the doctrine of respondeat superior; and (2) upon primary negligence in retaining Charles Ray as an agent and permitting him to come into contact with the general public. Issue was joined by a general denial. Appellants filed a motion for a change of venue which was denied after a hearing on the motion. Appellants filed a motion for summary judgment which was also denied after hearing. Trial was had on the merits before a jury and judgment was entered upon the jury's verdict in favor of appellee.

The threshold question on this appeal is whether or not the trial court erred in denying appellants' motion for change of venue. The relevant statutes in this matter are § 21--5--3, N.M.S.A., 1953 Comp., 1967 Pocket Supp., and § 21--5--4, N.M.S.A., 1953 Comp., which are, in pertinent part, as follows:

'21--5--3(A). The venue in all civil and criminal cases shall be changed, upon motion, to some county free from exception:

'* * *

'(2) when the party moving for a change files in the case an affidavit of himself, his agent or attorney, that he believes he cannot obtain a fair trial in the county in which the case is pending because:

'(a) the adverse party has undue influence over the minds of the inhabitants of the county; or

'(b) the inhabitants of the county are prejudiced against the party; or

'(c) because of public excitement or local prejudice in the county in regard to the case or the questions involved therein, an impartial jury cannot be obtained in the county to try the case; or

'(d) any other cause stated in the affidavit.'

'21--5--4. Upon the filing of a motion for change of venue, the court may require evidence in support thereof, and upon hearing thereon shall make findings and either grant or overrule said motion.'

Appellants moved for a change of venue, submitting affidavits stating (a) that they believed that they could not obtain a fair trial in Grant County because the appellee had undue influence over the minds of the inhabitants of the county; (b) that they could not obtain a fair trial in Grant County because the inhabitants of the county were prejudiced against appellants; (c) that because of public excitement and local prejudice in Grant County in regard to the case and the questions involved therein, an impartial jury could not be obtained in the county to try the case; (d) that appellants could not obtain a fair trial in Grant County because an account in the local press which made it appear that appellant Charles Ray was in a bar on the afternoon of the shooting prejudiced[80 N.M. 174]

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the minds of Grant County inhabitants; and (e) that appellants could not obtain a fair trial in Grant County because excitement and prejudice against appellant Charles Ray, amplified and kept alive to a great extent by newspaper accounts which purported to give the details surrounding the shooting, had not subsided and would not subside for years to come.

A hearing on the motion was held and testimony heard of appellants' and appellee's witnesses. The trial court made, among others, the following findings of fact and conclusion of law, all of which are challenged by appellants:

Findings of Fact:

'5. That the plaintiff does not have any undue influence over the minds of the inhabitants of Grant County, New Mexico.

'6. That the inhabitants of Grant County, New Mexico, are not prejudiced against the defendants in this cause, or against any one of them.

'7. That there is no public excitement or local prejudice in Grant County, New Mexico, in regards this case or the questions involved therein.

'8. That there has been no widespread, adverse or inordinate amount of publicity given to this case or to the matter complained of in the Complaint on file herein.

'9. That an impartial jury can be obtained in Grant County, New Mexico, to try this case.'

Conclusion of law:

'1. That the Motion for Change of Venue heretofore filed in this cause by the defendants should be overruled and the same is hereby denied and overruled.'

Appellants' objection to the above mentioned findings is that they are not supported by substantial evidence. Several witnesses testified in support of and several in opposition to the motion. The process of determining whether or not the facts necessary for a change of venue exist is the same as that followed in determining any other fact in a case. State v. Nabors, 32 N.M. 453, 259 P. 616 (1927). Thus, the process used to determine whether or not there was substantial evidence to support the trial court's findings on the motion for change of venue is the same as the process used to determine whether or not there was substantial evidence to support a finding of fact with regard to any other needed ultimate fact in a case. Some of the basic rules of this process were succinctly stated in Tapia v. Panhandle Steel Erectors Company, 78 N.M. 86, 428 P.2d 625 (1967), as follows:

'Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, Wilson v. Unemployment Sec. Comm'n, 74 N.M. 3, 389 P.2d 855, and has been defined as evidence of substance which establishes facts from which reasonable inferences may be drawn. Brown v. Cobb, 53 N.M. 169, 204 P.2d 264. On appeal, all disputed facts are resolved in favor of the successful party, all reasonable inferences indulged in support of the verdict, all evidence and inferences to the contrary disregarded, and the evidence viewed in the aspect most favorable to the verdict. Totah Drilling Co. v. Abraham, 64 N.M. 380, 328 P.2d 1083; State ex rel. Magee v. Williams, 57 N.M. 588, 261 P.2d 131; Sessing v. Yates Drilling Co., 74 N.M. 550, 395 P.2d 824; Witt v. Marcum Drilling Co., 73 N.M. 466, 389 P.2d 403; Blancett v. Homestake-Sapin Partners, 73 N.M. 47, 385 P.2d 568. Nor does the fact that there may have been contrary evidence which would have supported a different verdict permit us to weigh the evidence. Renehan v. Lobato, 55 N.M. 532, 237 P.2d 100; State ex rel. Reynolds v. Lewis, 74 N.M. 442, 394 P.2d 593. * * *'

We hold that testimony which was presented at the hearing on the motion for change of venue amounts to substantial[80 N.M. 175]

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evidence to support the findings of fact of the trial court.

The greater part by far of the newspaper coverage of which appellants complain sets out some of the facts surrounding the shooting incident only as reported, purported and alleged facts. One headline read, 'Rancher Gunned From His Horse Near White Signal,' and part of the material in the newspaper articles was treated as fact rather than as alleged fact; however, considering the testimony given at the hearing on the motion for a change of venue along with the newspaper coverage, we cannot say that the trial judge abused his discretion in denying the motion. Appellants cite State v. Shawan, 77 N.M. 354, 423 P.2d 39 (1967), to support their position regarding the newspaper coverage. However, Shawan was a case in which a motion for change of venue was denied without a hearing and thus it is not applicable here. Also, we quote the following from Shawan to show other differences:

'* * * The content of the news story contained much of the evidence relied upon by the state. The release of the story on the evening before the trial, coupled with the additional information concerning the appellant's prior criminal record plus the fact that the appellant and his companion were traveling in a stolen car all combined to create an atmosphere incompatible with impartiality. * * *'

Appellants also cite Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966). However, as we pointed out in State v. Barela, 78 N.M. 323, 431 P.2d 56 (1967), the subject of criticism and the cause for reversal in the Sheppard case was prejudicial publicity and disruptive influences attending the prosecution...

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