Berkstresser v. Voight, 6248
| Decision Date | 27 January 1958 |
| Docket Number | No. 6248,6248 |
| Citation | 63 N.M. 470,1958 NMSC 17,321 P.2d 1115 |
| Parties | Mannie Eula BERKSTERESSER, Administratrix of the Estate of Reata Lu Berkstresser, deceased, Plaintiff, v. Lee B. VOIGHT and Claude M. Garrett, also known as Claude M. McGonigal, Defendants, Clenton C. CROUCH, Administrator of the Estate of Clarene Lewellen, deceased, Plaintiff. v. Lee B. VOIGHT and Claude M. Garrett, also known as Claude M. McGonigal, Defendants. Joyce Elanie BURNETT, Administratrix of the Estate of Urban Jack Burnett, deceased, Plaintiff, v. Lee B. VOIGHT and Claude M. Garrett, also known as Claude M. McGonigal, Defendants. |
| Court | New Mexico Supreme Court |
James L. Dow, Carlsbad, William M. Siegenthaler, Artesia, C. R. Brice, Roswell, for appellants.
Neal, Neumann & Neal, Carlsbad, for appellee Voight.
Atwood & Malone, Charles F. Malone, Russell D. Mann, Roswell, for appellee Garrett.
Upon consideration of motion for rehearing, the original opinion is withdrawn and the following substituted therefor.
These are wrongful death actions instituted by the personal representatives of the decedents, Reata Lu Berkstresser, Clarene Lewellen and Urban Jack Burnett, whose deaths resulted from a collision of automobiles driven by appellees. The causes were consolidated for trial.
At the time of the collision, appellants' intestates were riding in the automobile driven by Voight. His heedless conduct in the operation of his automobile, concurring with the negligence of Garrett, is alleged as the proximate cause of the collision and resulting deaths. Voight entered a general denial, and further, interposed the Guest Statute, Sec. 64-24-1, 1953 Comp., as an affirmative defense. He further alleged that the negligence of Garrett was the sole proximate cause of the collision. Garrett also entered a general denial and further alleged joint enterprise and the contributory negligence of Voight as affirmative defenses. He also cross-claimed against Voight for damages to his automobile. On the issues thus framed, the causes were tried to a jury and its verdicts were for appellees; the jury found for Voight on Garrett's cross-complaint. Judgments were entered accordingly, and appellants seek a review of alleged errors.
At the outset we must dispose of a jurisdictional question. The proposition advanced is that since the cases were not consolidated for hearing here, the only judgment for review is the one entered in the action by Nannie Eula Berkstresser. We note that references to consolidation in the record are meager indeed. The parties did not so stipulate. Apparently the cases went to trial without an order of consolidation. The first reference to consolidation is an objection by one of the attorneys for appellee Garrett, as follows: 'Comes the defendant Claude M. Garrett in the three consolidated cases and objects to the court's ruling of allowing only five peremptory challenges.' The next reference appears in the instructions where the court stated the three cases were consolidated for trial. The judgments, prepared by appellees' counsel, recite that the cases were tried pursuant to the order of consolidation. Appellants' motion for a new trial filed in the Berkstresser case carried the three case numbers and the style of each case. The order denying the motion followed the same pattern as to number and style. The motion for and the order granting the appeal, likewise, carried the style and number in each case. Finally, the order setting the bill of exceptions was so styled and numbered.
The claimed lack of jurisdiction cannot be sustained. Such treatment of the cases by the court and respective counsel is sufficient to establish consolidation of the cases for all purposes. Blanchard v. State ex rel. Wallace, 29 N.M. 584, 224 P. 1047, 1049; Palmer v. Town of Farmington, 25 N.M. 145, 179 P. 227.
We now turn to a consideration of the appeal on the merits. When appellants rested, appellees, over objection of appellants, were granted trial amendments to include additional affirmative defenses of assumption of risk and contributory negligence; however, the amendments were never actually made. Later, the defenses of contributory negligence were voluntarily abandoned by both appellees. The ruling of the court in permitting the amendments is assigned as error. We do not think the court erred in permitting Voight to amend so as to assert both affirmative defenses; nor did the court err in permitting Garrett to amend his answer to include the defense of contributory negligence as these issues were raised by appellants themselves. It is will established that where issues are tried by express or implied consent of the parties, they will be treated as if they had been raised in the pleadings. That the amendments were not actually made, is unimportant. Luvaul v. Holmes, 63 N.M. 193, 315 P.2d 837. See also Rule 15(b) our Rules of Civil Procedure.
But there is serious error in the record. The defense of assumption of risk was not available to Garrett; the doctrine applies only to drivers of vehicles in which guests are riding. Smith v. Harris, 42 Wash.2d 291, 248 P.2d 551. Therefore, the judgment for Garrett must be reversed. As to Voight, the rule is different; the doctrine was available to him. If appellants' intestates knew, or if the facts were such as to reasonably charge them with notice that danger existed in riding with him, and they voluntarily assumed it, assumption of the risk by them is a bar to recovery. We summarize the material evidence favorable to the verdict as to Voight.
Reata Lu Berkstresser and Urban Jack Burnett had ridden with Voight to State Line Bar in Texas, some 35 miles south of Carlsbad. Marie Davis also accompanied them on the trip to the bar. Before they left Carlsbad, Reata Lu inquired of Voight if he would like a can of beer. Voight replied 'no, I think I have had one too many already'; nevertheless, they shared a can of beer. This testimony was given by a sister of Reata Lu. Reata Lu also took 3 cans of beer to the car as they were leaving Carlsbad. It was a wild ride that followed. Marie Davis testified that Voight drove very recklessly. That after leaving Loving, at times he drove 90 miles per hour; that he did not reduce the speed going through the Village of Malaga; that he overtook and passed a car on a bridge, driving so close that it frightened some of the passengers; that on approaching curves he drove so fast that it seemed the wheels would leave the pavement; and that he drove off the pavement several times. Marie Davis was so concerned about the driving that she did not return with Voight and advised her daughter not to do so. She advised Voight that he was driving too fast; his guests, however, made no objection to the manner of his driving. Clarene Lewellen had come to her bar with others, arriving about 6:00 P.M., but joined the Voight party on their return trip to Carlsbad. Garrett arrived at the bar around 7:00 P.M. where all parties remained until around 11:00 P.M., during which time they engaged in dancing, and Voight consumed 2 or 3 cans of beer. Voight and Garrett left the bar about the same time, Voight leaving first. Shortly thereafter, Garrett, traveling alone, overtook and passed the Voight automobile at an excessive speed and Voight then decided to overtake and pass him. He overtook Garrett 3.6 miles north of the bar just as they were approaching the crest of a hill. As Voight was about to pass him, Garrett suddenly turned his automobile to the left into Voight's lane of traffic, and the collision followed. At the time, Garrett was traveling at a speed of 75 miles per hour, and Voight admits he was traveling 85 miles per hour. The right front fender of the Voight automobile collided with the left rear fender of the Garrett automobile, causing Voight's automobile to roll over 4 times, and as a result,...
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