Baca v. Baca

• Decision Date: 13 March 1963
• Docket Number: No. 7027,7027
• Citation: 379 P.2d 765,1963 NMSC 43,71 N.M. 468
• Parties: Rudolph L. BACA, Administrator of the Estate of Bruce Baca, an infant, deceased, Plaintiff-Appellant, v. Adiel S. BACA and Margaret Baca, his wife, Defendants-Appellees.
• Court: New Mexico Supreme Court

Page 765

379 P.2d 765

71 N.M. 468

Rudolph L. BACA, Administrator of the Estate of Bruce Baca an infant, deceased, Plaintiff-Appellant, v. Adiel S. BACA and Margaret Baca, his wife Defendants-Appellees.

No. 7027.

Supreme Court of New Mexico.

March 13, 1963.

Smith, Kiker & Kitts, Richard E. Ransom, Albuquerque, for appellant.

Iden & Johnson, James T. Paulantis, Albuquerque, for appellees.

NOBLE, Justice.

Action was brought against defendants by the administrator of the estate of Bruce Baca, an infant, for the wrongful death of the infant caused by the alleged negligent operation of an automobile by the defendant Margaret Baca. Appeal was taken from a judgment following a jury verdict finding the issues in favor of defendants.

Bruce Baca, age three years and three months, the son of Rudolph L. and Urcy Baca, was playing across the street from the Baca home at about 4:50 p. m. on July 2, 1959. Mr. Baca was not at home at the time. Upon being told by older children that Bruce was across the street, Mrs. Baca went immediately to the curb, and seeing no cars approaching, called to Bruce to come across the street. He continued looking at a culvert with a companion for some moments and when he did start across the street, his mother saw defendant's car approaching, motioned to him to go back and called 'go back, there's car coming.' The child continued running across the street and was struck and killed by the car driven by defendant Margaret Baca. The two Baca families are not related.

Defendants plead, as a second defense, the contributory negligence of Urcy Baca, mother of the child, and that she was agent of the community of her husband and herself, and that the negligence of the wife is imputed to the husband.

Plaintiff urges error in the denial of his motion to strike the second defense (contributory negligence of the child's mother), made both at a pre-trial hearing and at the conclusion of all the evidence. An instruction directing the jury to find for defendants if the jury found that the child's mother was guilty of negligence proximately contributing to the death is also asserted as error. These two claimed errors present the same legal question and will be considered together.

The first question posed is whether under the New Mexico wrongful death statute the contributory negligence of a person who will ultimately receive the benefit of a recovery bars the right of recovery in whole or in part. The precise question is one of first impression in this jurisdiction and the courts of other states are not in accord, the reasons for divergence of opinion being largely the difference in a construction of the various state statutes. This is illustrated by the following from Restatement, Torts, Sec. 493:

'The effect of the contributory negligence of a beneficiary under a death statute depends upon the provisions of the statute.'

Section 22-20-1, N.M.S.A.1953 reads:

'Whenever the death of a person shall be caused by the wrongful act, neglect or default of another, although such death shall have been caused under such circumstances as amount in law to a felony, and the act, or neglect, or default, is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who or the corporation which, would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured.'

Section 22-20-3, N.M.S.A.1953, provides that actions for wrongful death, other than by a public conveyance, shall be brought by and in the name of the personal representative; that the proceeds of any judgment shall not be liable for any debt of the decedent; and, specifies the beneficiaries or persons to whom the proceeds of such recovery shall be distributed. In the case of an unmarried and childless minor, the surviving father and mother 'shall have an equal interest in the judgment.'

Comment (a) under the Restatement rule, Torts, Sec. 493, illustrates the purpose of the three usual and different types of statute, and states the majority rule in each such type of statute:

'The purpose of the more usual form of statute is to compensate the survivors for the benefits which they would have derived from the earning power of the decedent had his life not been cut short. The sum recovered is distributed in various ways by the various statutes among the survivors who, had the decedent lived, would have benefited by his earning power. Where the statute is of this type, the fact that a beneficiary is himself guilty of negligence which contributed to the death of the decedent does not prevent recovery unless he is the sole beneficiary. It does, however, affect the amount recoverable. If one of the beneficiaries is guilty of contributory negligence he is not allowed to benefit by the statute. The amount which he would have received had he not been negligent is deducted from the amount recoverable by the survivors as a group; the rest being distributed among the survivors as though the negligent beneficiary did not exist.

'There is another type of death statute under which the amount recoverable is fixed, not by the benefit which the survivors would have derived from the continued life of the decedent, but by the gravity of the defendant's fault. Under such a statute, the contributory negligence of one of the beneficiaries neither prevents the maintenance of the action nor affects the amount recoverable. Its effect is to eliminate the negligent beneficiary from the group among which the amount recovered is to be divided; such amount being divided among the innocent beneficiaries as though the negligent beneficiary did not exist.

'There is a third type of death statute in which the amount recovered is treated as if it were an asset of the decedent and is distributed under special statutory provisions pertaining to that fund only. Under this type of statute, the negligence of a beneficiary has no effect in determining either the amount recoverable or the persons among whom the proceeds of the judgment are to be divided.'

The first two examples under the restatement rule are grounded upon the principle that one should not be permitted to benefit by his own wrong. Application of that principle has led the great majority of courts to hold that the contributory negligence of a beneficiary bars the right of recovery under a wrongful death statute at least as to the beneficiary whose negligence proximately contributed to the death. 23 A.L.R. 670; 69 A.L.R. 478; 2 A.L.R.2d 785, 786.

We then turn to our own statute and examine its purpose. Sec. 22-20-3, N.M.S.A.1953, provides that the jury may award such damages:

'* * * compensatory and exemplary, as they shall deem fair and just, taking into consideration the pecuniary injury or injuries resulting from such death to the surviving party or parties entitled to the judgment * * * and also having regard to the mitigating or aggravating circumstances attending such wrongful act, neglect or default.'

It appears to be the general rule, as argued by plaintiff, that a beneficiary under the usual survival statute is not barred from participating in a recovery for wrongful death because of the contributory negligence of such beneficiary. Those decisions, however, are based upon a statute providing for the usual and normal type of survival action, where it must be brought by the personal representative who stands in the place of the injured person; represents the estate; and, the beneficiaries take as distributees of the estate, not in their capacity as statutory beneficiaries. The reasoning upon which these decisions permit a negligent beneficiary to share in the recovery is stated thus in the annotator's language, 2 A.L.R.2d at page 811:

'* * * Under this type of statute the cause of action prosecuted by the personal representative is not a new cause of action but a continuation of the cause of action which existed in the injured person during his lifetime, and the recovery goes to the distributees of the estate not as statutory beneficiaries but as distributees under the statute of descent and distribution the same as any other asset of the estate and subject to the payment of debts and administration expenses.' (Emphasis ours.)

These decisions, taking the view that the contributory negligence of a beneficiary does not bar recovery, are based on the reasoning that the action is a survival statute and upon death of the injured person the action becomes the property of his personal representative and of his estate, and the beneficiaries take as distributees of the estate, not as statutory beneficiaries. Those decisions, of course, are based upon the legal theory that the personal representative stands in the place of the injured person and that no defense is available against him that would not have been available against the injured person had death not ensued, and that the beneficiaries take as distributees of the estate not as statutory beneficiaries.

The rule appears, on the contrary, to be equally general that the more fact that the action is brought by or in the name of a personal representative, where it is actually for the benefit of the statutory beneficiaries, not the estate, does not prevent contributory negligence of a beneficiary from barring recovery. The following appears in 2 A.L.R.2d at pages 791-792:

'Most of the modern cases, however, have expressly or impliedly repudiated any distinction based upon the fact the suit was by the parent or other beneficiary in his capacity as administrator of the estate of the person killed, or by a third person as the administrator of the estate, and have taken the view that irrespective of whose name the action is brought in (whether directly in the name of the beneficiary or beneficiaries and for his or their benefit, or in the name of the personal representative) the...