Baca v. Board of County Com'rs of Bernalillo County
| Decision Date | 21 March 1966 |
| Docket Number | No. 7783,7783 |
| Parties | Dora BACA, Administratrix of the Estate of Eligio Figueroa, deceased, and Manuel Luna, Plaintiffs-Appellants and Cross-Appellees, v. The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF BERNALILLO, Defendants- Third Party Plaintiffs-Appellees and Cross-Appellants, Jewell Britt, Gerald D. Britt and Gordon L. Powers, co-partners d/b/a Britt Electric Co., Defendants-Appellees. Rita NEVANS (Now Mrs. Harry S. Sims, Jr.) and Harry S. Sims, Jr., Plaintiffs-Appellants and Cross-Appellees, v. The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF BERNALILLO, Defendants- Third Party Plaintiffs-Appellees and Cross-Appellants, Jewell Britt, Gerald D. Britt and Gordon L. Powers, co-partners d/b/a Britt Electric Co., Defendants-Appellees. |
| Court | New Mexico Supreme Court |
Matteucci, Gutierrez, Franchini & Calkins, Albuquerque, for appellants Baca and Luna.
Schall, Sceresse & Brown, Albuquerque, for appellant Nevans.
McAtee, Toulouse, Marchiondo, Ruud & Gallagher, Albuquerque, for Board of County Com'rs.
This is an action in tort. On September 20, 1959, an automobile traveling in a northerly direction and an automobile traveling in an easterly direction collided at the intersection of Bridge Street, S.W. and Atrisco Road, S.W., in Bernalillo County. The traffic signal light was not properly functioning at the time. It showed green for eastbound traffic approaching the intersection but showed no light at all for northbound traffic approaching the intersection. The driver of the northbound vehicle, Eligio Figueroa, was killed and his passenger, Manuel Luna, sustained serious injuries. The driver of the eastbound vehicle, Charles Skrobarczyk, and his passenger, Rita Nevans (Sims), also sustained injuries.
The basis of the plaintiffs' claim for damages is the negligence of the Board of County Commissioners allegedly having knowledge of the malfunctioning light and their failure to repair it. Three suits were filed; the causes were consolidated for all purposes and, from a judgment based upon the verdict of a jury in favor of the Board, the plaintiffs have appealed, and the Board has cross-appealed.
On a former appeal, judgment on one phase of the case has been affirmed. Baca v. Britt, 73 N.M. 1, 385 P.2d 61. The Board of County Commissioners had brought in the members of the copartnership of Britt Electric Co. as third-party defendants. The Board alleges that the negligence of Britt Electric Co. was the proximate cause of the accident in question and that it was answerable to the county for any judgment that might be obtained against the county.
The first question posed is whether the court erred in refusing to permit the jury to consider the question of insurance coverage and in refusing to permit the insurance policy to be taken to the jury room during the deliberation of the jury.
Four statutes are pertinent here:
Section 21--8--23, N.M.S.A., 1953 Comp.:
'When the jury retires to consider its vedict it shall be allowed to take the pleadings in the cause, the instructions of the court, and any instruments of writing admitted as evidence, except depositions.' (Emphasis ours.)
Section 5--6--18, N.M.S.A., 1953 Comp. (Supp.1965):
'The purpose of this act (5--6--18 to 5--6--22) shall be to provide a means for recovery of damages for death, personal injury or property damage, resulting from the employer's or employee's negligence, which occur during the course of employment for state, county, city, school district, district, state institution, public agency or public corporation, its officers, deputies, assistants, agents and employees.'
Section 5--6--20, N.M.S.A., 1953 Comp. (Supp.1965):
'Suits may be maintained against the state, county, city, school district, district, state institution, public agency, or public corporation of the state and the persons involved for the negligence of officers, deputies, assistants, agents or such employees in the course of employment; Provided, however, no judgment shall run against the state, county, city, school district, district, state institution, public agency or public corporation of the state unless there be liability insurance to cover the amount and cost of such judgment.'
Section 5--6--21, N.M.S.A., 1953 Comp. (Supp.1965):
'The plaintiff shall upon demand by the defendant waive the amount of any judgment recovered against the state which is not covered by liability insurance.'
The Board at first took the position that while it had certain coverage, its policy did not afford coverage for the accident in question. In order to obtain a ruling on the question before trial on the merits, the Board moved for nonsuit and attached a copy of the policy to its motion. At a hearing on the motion, the policy was introduced into evidence by the Board. The court concluded that the...
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