Beal v. Southern Union Gas Co.

• Decision Date: 08 February 1960
• Docket Number: No. 6463,6463
• Citation: 349 P.2d 337,66 N.M. 424
• Parties: , 84 A.L.R.2d 1269 Dan BEAL and Mountain States Mutual Casualty Company, Plaintiffs-Appellees, v. SOUTHERN UNION GAS CO., Defendant-Appellant. Donald P. RIX, Plaintiff-Appellee, v. SOUTHERN UNION GAS CO., Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 337

349 P.2d 337

66 N.M. 424, 84 A.L.R.2d 1269

Dan BEAL and Mountain States Mutual Casualty Company, Plaintiffs-Appellees, v. SOUTHERN UNION GAS CO., Defendant-Appellant.

Donald P. RIX, Plaintiff-Appellee, v. SOUTHERN UNION GAS CO., Defendant-Appellant.

No. 6463.

Supreme Court of New Mexico.

Feb. 8, 1960.

Gilbert, White & Gilbert, Santa Fe, Martin A. Threet, Keleher & McLeod, Robert Martin, Albuquerque, for appellant.

Smith & Kiker, Rodey, Dickason, Sloan, Akin & Robb, Charles B. Larrabee, Albuquerque, for appellees.

J. V. GALLEGOS, District Judge.

This is an appeal from two judgments entered by the district court of Bernalillo County upon jury verdicts rendered against Southern Union Gas Company, defendant-appellant, in favor of plaintiff Dan Beal in the amount of $181,520.94, and in favor of the plaintiff Donald Rix in the amount of $273,345.38. The two personal injury actions were consolidated for trial and on appeal.

At the time of the injury complained of Beal was 19 years and 10 months of age. Beal was joined as plaintiff by the Mountain States Mutual Casualty Company because of workmen's Compensation which the Casualty Company had paid Beal on account of the injuries. This suit was against Southern Union, Wylie Brothers Contracting Company, Wylie Paving Company. The amended complaint stated that plaintiff Beal was employed by C & C Construction Company as a carpenter and was injured by a gas explosion while removing some forms from a concrete junction box beneath the street intersection at 47th Street and Central Avenue West, in Albuquerque, New Mexico; that Southern Union negligently allowed its gas pipes in the vicinity of the intersection mentioned to remain in a state of disrepair and that gas escaped and filtered through the ground to the junction box where it accumulated in dangerous amounts; that the gas exploded in the junction box causing Beal severe and serious permanent injuries; that the Wylie companies were engaged in work on a paving project for the City of Albuquerque and caused breaks in the gas lines in the vicinity of the explosion. The defendant Southern Union filed a third-party complaint against the City of Albuquerque, stating that the city, by its employees and agents, was engaged in placing underground pipes and other work in the vicinity of the explosion and caused a sewer line to break and allowed sewage to accumulate in the junction box and that it failed to blow out the junction box. The city filed a complaint against the C & C Construction Company which was doing the sewer work stating that Beal was employed by C & C Construction Company which had contracted to hold it harmless from all claims. The city had also pleaded that C & C Construction Company was an independent contractor.

The plaintiff Donald Rix was working for the same party and at the same place as Beal at the time of the explosion. Rix sued Southern Union Gas Company, Wylie Brothers Contracting Company and Wylie Brothers Paving Company and his complaint in respect to the claim of liability and the other pleadings in this case are in substance similar to the pleadings in the Beal case. Both Rix and Beal had been in the junction box removing forms for about an hour when one of them lit a cigarette lighter and the explosion followed. Beal suffered severe permanent injuries. Rix suffered hideous and permanent injuries which destroyed his ears, nose, arms and eyes, causing total disfigurement. He was 22 years of age at the time he was so injured with a life expectancy of 49.32 years. On motion of the City of Albuquerque, before the case was submitted to the jury, the trial court dismissed. Southern Union's cross-complaint against the city. It also dismissed the plaintiffs' complaint against Wylie Brothers Contracting Company and it also dismissed the city's complaint against C & C Construction Company.

The jury returned its verdict in favor of defendant Wylie Paving Company and in favor of the plaintiffs Beal and Rix and against Southern Union Gas Company.

Further facts will naturally develop as this opinion is written.

The plaintiffs were injured in the explosion on January 31, 1955. The trial of the case was commerced on November 4, 1957, and Judge Macpherson, the trial judge, sensing that the trial court be prolonged, caused to be qualified two alternate jurors, besides the regular twelve. On the evening of November 21, seventeen days after the trial had commenced (which lasted about six weeks), the trial judge made the remark, in open court, that one juror, a Mr. Blea, was complaining of illness and on execusing the jury serving on the case for the evening, it requested the juror Blea to call him that evening after he had consulted a doctor. The juror later in the evening telephoned the judge and told him that a Dr. Tanny, M.D., had examined him and advised him that he was not physically able to continue to serve as a juror, and Mr. Blea, for those reasons, asked the judge to excuse him from further jury service. Judge Macpherson discussed the juror's condition with the doctor and was satisfied that Mr. Blea's complaints were bona fide and thereupon discharged him from jury service.

The appellant assigns as error the action of the court in discharging the juror, claiming that no notice was given its counsel prior to the action taken by the court in discharging the juror, that they should have been given a hearing before the court to have a determination made and discover whether or not there was a legal reason for discharging the juror and it arbitrarily and without lawful authority discharged the juror.

Prior to 1935 there was no provision in the statutes of the State of New Mexico for alternate jurors. In 1935 the legislature enacted Chapter 38, section 1, providing for alternate jurors which now appears as Sec. 41-10-4, N.M.S.A.1953 Compilation. Rule 47(b) of the New Mexico District Court Rules of Civil Procedure is identical with the 1935 statute and this Rule provides:

'In any criminal or civil case, whenever in the opinion of the court the trial is likely to be a protracted one the court may, immediately after the jury is empaneled and sworn, direct the calling of one (1) or two (2) additional jurors, to be known as 'alternate jurors.' Such jurors shall be drawn from the same source, and in the same manner, and have the same qualifications as regular jurors, and be subject to examination and challenge as such jurors, except that each party shall be allowed one (1) peremptory chalenge to each alternate juror. The alternate jurors shall take the proper oath or affirmation and shall be seated near the regular jurors with equal facilities for seeing and hearing the proceedings in the cause, and shall attend at all times upon the trial of the cause, in company with the regular jurors. They shall obey all orders and admonitions of the court, and if the regular jurors are ordered to be kept in the custody of an officer during the trial of the cause, the alternate jurors shall also be kept with the other jurors, and, except as hereinafter provided, shall be discharged upon the final submission of the cause to the jury. If, before the final submission of the cause, a regular juror dies or is discharged, the court shall order the alternate juror, if there is but one (1), to take his place in the jury box. If there are two (2) alternate jurors the court shall select one (1) by lot, who shall then take his place in the jury box. After an alternate juror is in the jury box he shall be subject to the same rules as a regular juror.'

The provision of the rule which is in question under this assignment of error is that which states:

'If, before the final submission of the cause, a regular juror dies or is discharged, the court shall order the alternate juror, if there is but one (1), to take his place in the jury box. If there are two (2) alternate jurors the court shall select one (1) by lot, who shall then take his place in the jury box.'

When the judge said, in open court, on November 21, that juror Blea was complaining of illness and the judge told him to consult a doctor and call him, appellant's counsel stood by in silence, neither protesting nor objecting to the method to be taken by the judge to determine the juror's illness or asking for a hearing on the matter. The next morning the court informed counsel of the juror's inability to continue on account of illness and that the doctor would not permit him to serve any further on the jury and that he had discharged the juror. Upon this announcement being made by the court, appellant's counsel asked that the case be postponed until the juror was able to serve again or in the alternative that a mistrial be granted and then asked that the trial be postponed until the following Monday to see how the juror might be. The court informed counsel and he had already discharged the juror and overruled the motion, and one of the alternate jurors was selected by lot to take the place of the juror discharged.

While the rule (47(b), supra) simply provides that if, before final submission of the case a regular juror dies or is discharged the court shall order an alternate to take his place and while we believe that the better practice is for the court of its own motion to conduct a summary hearing to determine the inability of a juror to serve before he is discharged during the trial, yet we cannot give the rule the strict construction which appellant would have us do, neither can we say that the court in this very involved and complicated case acted arbitrarily or abused his discretion in discharging the juror. It is obvious that if a juror dies there is no need for any kind of a hearing to select an alternate to take the place of the deceased juror; the rule also states as noticed 'or is discharged' meaning or if the juror is discharged, and while it does not spell out the reasons why a juror may be discharged, the rule contemplates that a juror...