American Ins. Co. v. Foutz & Bursum

• Decision Date: 16 December 1955
• Docket Number: No. 5902,5902
• Parties: AMERICAN INSURANCE COMPANY, a Corporation, and Pennsylvania Fire Insurance Co., a Corporation, Plaintiffs-Appellants, v. FOUTZ AND BURSUM, a Co-Partnership and J. L. Foutz and Holm Bursum, individual members thereof, Defendants, Third-Party Plaintiffs and Appellees, Southern Union Gas Company, a Corporation, Third-Party Defendants.
• Court: New Mexico Supreme Court

Page 1081

291 P.2d 1081

60 N.M. 351

AMERICAN INSURANCE COMPANY, a Corporation, and Pennsylvania Fire Insurance Co., a Corporation Plaintiffs-Appellants, v. FOUTZ AND BURSUM, a Co-Partnership and J. L. Foutz and Holm Bursum, individual members thereof, Defendants Third-Party Plaintiffs and Appellees Southern Union Gas Company, a Corporation, Third-Party Defendants.

No. 5902.

Supreme Court of New Mexico.

Dec. 16, 1955.

Dissenting Opinion Jan. 6, 1956.

Quincy D. Adams, James H. Foley, Albuquerque, for appellants.

Johnston Jeffries, Aztec, H. A. Daugherty, Farmington, for appellees.

SADLER, Justice.

The appellants (plaintiffs below) having paid their insured for damages suffered in a gas explosion, as subrogees under the terms of the policies issued, sued the appellees (defendants) through whose negligence the explosion was charged to have occurred for reimbursement to plaintiffs of the amounts so paid them by reason of the damages suffered in said explosion. The cause was tried to a jury and resulted in a verdict in favor of the defendants upon which judgment was duly entered. This appeal is prosecuted by the plaintiffs for the review by us of the judgment so entered against them.

A brief statement of the proceedings below will at this point be made to give a general understanding of the case from the outset to be followed later by an amplified statement of the facts in more immediate connection with the argument being made at the time. The action is one brought by plaintiffs as subrogees of J. Vernon Bloomfield and Jessie Bloomfield to recover the amounts paid by each of two insurance companies to their insured under policies for damages to a house and its contents located in Farmington, New Mexico, caused by an explosion on September 26, 1952. The action is brought against defendants, Foutz & Bursum, a copartnership, and J. L. Foutz and Holm Bursum, individual members thereof, who were engaged as contractors for the City of Farmington in the laying of sewer pipes. It was alleged they negligently struck a service line connected to the Bloomfield house, breaking it and causing gas to escape, which ignited and exploded.

Damages were demanded by Pennsylvania Fire Insurance Company, one of the plaintiffs in the action below, in the sum of $10,000 as the amount paid by it for damage to the house and damages were sought by American Insurance Company, one of the plaintiffs below, in the sum of $2,455.68, as the amount paid by it for damage to the contents of the house. An answer was filed by the defendants denying negligence and later a third party complaint was filed by them against Southern Union Gas Company, seeking reimbursement from it of any amount which might be recovered against them by the plaintiffs.

At the close of plaintiffs' case the third party defendant, Southern Union Gas Company, moved for a directed verdict and the defendants interposing no objection to such motion, the court granted the dismissal prayed for. The trial then proceeded as between the plaintiffs and the defendants and resulted in a verdict in favor of the latter upon which judgment was duly entered. A motion for judgment non obstante veredicto, or in the alternative for a new trial, having been filed by the plaintiffs (appellants), after hearing thereon the court denied the same. So much for the proceedings up to the time of judgment and transfer of the cause to this court through an appeal by plaintiffs.

The first point presented as a ground for reversal grows out of the trial court's action in allowing five peremptory challenges to the two original defendants and a like number to the third party defendant, Southern Union Gas Company. The plaintiffs or their counsel for them, insist the original defendants and the third party defendants were only entitled to a total of five peremptory challenges as between them. The defendants took appropriate action below to reserve for review the correctness of the trial court's ruling in this particular. Hence, this action alone by the trial court, presents reversible error if counsel be correct in the contention here made.

The governing statute, 1953 Comp. Sec. 19-1-36, reads as follows:

'In all civil cases each party may challenge peremptorily five (5) jurors and no more, whether the plaintiffs or defendants shall be single or joined.'

This statute was before us for construction in Morris v. Cartwright, 57 N.M. 328, 258 P.2d 719, 721. In that case the plaintiff sued jointly the owner and operator of a taxicab in which she was a passenger and the owners of a truck with which the taxicab collided to recover damages for injuries suffered in the collision. The respective owners of the taxicab and truck were represented by separate counsel. When the case was called for trial, counsel for both defendants announced their defenses would be antagonistic and requested the court to allow them five additional peremptory challenges. The court being of opinion that it was a matter within its discretion allowed the two sets of defendants five peremptory challenges each. We held this to be reversible error and said:

'We think the court erred in arbitrarily extending the statute. The term 'each party' means the two opposing sides to a controversy. Each side or party constitutes one party and is limited to five peremptory challenges. By employing the term 'whether * * * single or joined' the opposite parties, though plural, are required to join in the exercise of peremptory challenges. The view expressed here finds accord generally in the cases. Mullery v. Great Northern Ry. Co., 50 Mont. 408, 148 P. 323; Mourison v. Hansen, 128 Conn. 62, 20 A.2d 84, 136 A.L.R. 413; Ferron v. Intermountain Transp. Co., 115 Mont. 388, 143 P.2d 893. For an interesting discussion of the rule relating to peremptory challenges in criminal cases generally, see State v. Compton, 57 N.M. 227, 257 P.2d 915.'

Both sides draw comfort from what we said in the foregoing case, the plaintiffs by reason of the fact that under the situation there existing we confined the separate defendants to a total of five peremptory challenges as between them. The present defendants draw their comfort from the case by pointing out the difference in the situation existing between the parties defendant there and here, arising from the absence of any controversy or conflict between the defendants in the case at bar.

Their counsel point out that while in Morris v. Cartwright the defenses of the two defendants may have been antagonistic to each other, yet neither of them was proceeding against the other in that action as is the case here as between defendants on the one side and third party defendant on the other. It may be well to quote that portion of the third party practice rule which is pertinent to this discussion: Rule 14, N.M.S.A.1953, Sec. 21-1-1(14)

When defendant may bring in third party. 'Before the service of his answer, a defendant may move ex parte or, after the service of his answer, on notice to the plaintiff, for leave as a third-party plaintiff to serve a summons and complaint upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff's claim against him.'

We see a distinction between the factual situation in Morris v. Cartwright and that shown here. This distinction we think denies that case the analogy by which counsel for plaintiffs seek to draw it to their support. There, the plaintiff proceeded directly against the two defendants. There was no third party defendant involved in Morris v. Cartwright. It was brought into the case here on a third party complaint filed by Foutz & Bursum, as codefendants, after they had themselves answered the plaintiffs' complaint. The plaintiffs had charged that the negligence of defendants, Foutz & Bursum, was the proximate cause of the damage and injury. In their complaint making Southern Union Gas Company a third party defendant, as third party plaintiffs the defendants alleged that the third party defendant's negligence was the proximate cause of the damage.

The defenses asserted by third party defendant are not against the original plaintiffs but against the third party plaintiffs (the original defendants). No pleading or claim of any kind is asserted by either plaintiffs or third party defendant against the other. Hence, counsel for defendants (third party plaintiffs) aptly inquire 'How, then, can the appellants say that the third party defendant is opposed to the plaintiff or how can he successfully assert that there is a controversy between these parties when as between them there is no 'allegation of fact on one side which is denied by the other side' as the definition of the word controversy is set forth above?'

It is to be noted that in Morris v. Cartwright, supra, we defined the phrase 'each party' as used in 1953 Comp. Sec. 19-1-36, to mean 'the two opposing sides to a controversy.' While in Morris v. Cartwright there may have been antagonistic defenses between the two defendants yet neither was proceeding against the other in that action. Here, however, in the case at bar, the defendants became third party plaintiffs and could in no sense be deemed codefendants with the third party defendant. Indeed, the sole controversy with which the third party defendant was connected, viewing the parties as a whole, was between the defendants (third party plaintiffs) and itself, the third party defendant. The latter was making no claim against nor even interested in any controversy with plaintiff.

We think the case of Ralston v. Toomey, Tex.Civ.App., 246 S.W.2d 308, 309, is so nearly the same as this one on its facts that it should be deemed decisive. Indeed, it does, as we appraise it. In dealing with a like situation, the court said:

'* * * This court stated the rule in Lofland v. Jackson, 237 S.W.2d 785, 792:

"The rule is well established that more than one defendant having identical interests and a common defense in a suit constitute...