McCauley v. Ray
Citation | 1968 NMSC 194,453 P.2d 192,80 N.M. 171 |
Decision Date | 16 December 1968 |
Docket Number | No. 8473,8473 |
Parties | Stephen Frank McCAULEY, Plaintiff-Appellee, v. Charles RAY and Brock Cattle Company (NSL), a New Mexico Corporation, Defendants-Appellants. |
Court | Supreme Court of New Mexico |
Suit was brought by plaintiff-appellee Stephen Frank McCauley in the district court of Grant County against defendants-appellants, Charles Ray and Brock Cattle 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:
'* * *
'(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.'
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 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:
Conclusion of law:
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:
* * *'
We hold that testimony which was presented at the hearing on the motion for change of venue amounts to substantial 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:
* * *'
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 which deprived petitioner of a fair trial.
The trial court's findings of fact Nos. 5, 6, 7, 8 and 9 are the direct contrary of most of the averments in the affidavits supporting the motion. These findings are supported by the record. The remaining averments were (1) that, at...
To continue reading
Request your trial-
1998 -NMCA- 18, State v. House
...233, 239, 771 P.2d 166, 172 (1989); State v. Fernandez, 56 N.M. 689, 692, 248 P.2d 679, 681 (1952); see also McCauley v. Ray, 80 N.M. 171, 174-76, 453 P.2d 192, 195-97 (1968) (in determining whether substantial evidence supports a venue decision, the appellate court considers the effects of......
-
Sterling v. Bloom
...is applicable during the period of time in which the principal has the right to control the employee's actions. McCauley v. Ray, 80 N.M. 171, 453 P.2d 192 (1968). This analysis focuses on whether the act or omission is of a kind that the employee was hired to do or supposed to do, and wheth......
-
Mieras v. Dyncorp
...a party may not agree to the admission of evidence and thereafter claim error from his or her own action. See McCauley v. Ray, 80 N.M. 171, 176, 453 P.2d 192, 197 (1968). SUFFICIENCY OF THE 13. Appellants additionally contend that there is no substantial evidence to support the WCJ's determ......
-
Herrera v. Santa Fe Pub. Sch.
...liable for any unauthorized conduct by Ms. Reyes. This assertion, however, finds no legal support. See, e.g., McCauley [ v. Ray ], 80 N.M. [171] at 181 [453 P.2d 192 (1968) ] (finding employer liable for actions of rancher who ended altercation about the speed of driving neighbor's cattle b......