Bolt v. Davis

• Court: New Mexico Supreme Court
• Writing for the Court: LaFel E. Oman, Garnett R. Burks, Jr.; CHAVEZ; COMPTON, C. J., and CARMODY
• Citation: Bolt v. Davis, 70 N.M. 449, 374 P.2d 648, 1962 NMSC 85 (N.M. 1962)
• Decision Date: 25 June 1962
• Docket Number: No. 6887,6887
• Parties: Pauline BOLT, Plaintiff-Appellant, v. Aubrey DAVIS, Administrator of the Estate of Jack Roddy, Deceased, Defendant-Appellant, Transcontinental Bus System, Inc., a corporation; American Linen Supply of New Mexico, Inc. (N. S. L.), a corporation; Casper U. Lutz and Robert K. Risner, d/b/a Las Cruces Laundry & Dry Cleaning; and Colonial Service of New Mexico, a corporation, Defendants-Appellees.

Page 648

374 P.2d 648

70 N.M. 449

Pauline BOLT, Plaintiff-Appellant, v. Aubrey DAVIS, Administrator of the Estate of Jack Roddy Deceased, Defendant-Appellant Transcontinental Bus System, Inc., a corporation; American Linen Supply of New Mexico, Inc. (N. S. L.), a corporation Casper U. Lutz and Robert K. Risner, d/b/a Las Cruces Laundry & Dry Cleaning; and Colonial Service of New Mexico a corporation, Defendants-Appellees.

No. 6887.

Supreme Court of New Mexico.

June 25, 1962.

Rehearing Denied Oct. 9, 1962.

Adams & Calkins, Albuquerque, for appellant.

Rodey, Dickason, Sloan, Akin & Robb, Albuquerque, J. R. Nelson, Truth or Consequences, for appellee, Transcontinental Bus System, Inc.

E. Forrest Sanders, William W. Bivins, Las Cruces, for appellee, Aubrey Davis, Administrator.

LaFel E. Oman, Garnett R. Burks, Jr., J. Benson Newell, Las Cruces, for appellees, American Linen Supply of New Mexico, and Colonial Service of New Mexico.

CHAVEZ, Justice.

Plaintiff-Appellant, Pauline Bolt, filed suit against defendants-appellees, Transcontinental Bus System, Inc., a corporation, hereinafter referred to as 'Transcontinental'; Aubrey Davis, Administrator of the Estate of Jack Roddy, Deceased, hereinafter referred to as the 'Roddy Estate'; American Linen Supply of New Mexico, Inc., (N.S.L.), a corporation, hereinafter referred to as 'American Linen'; and Colonial Service of New Mexico, a corporation, hereinafter referred to as 'Colonial.'

The complaint is in two counts. The first count alleged that on March 20, 1959, appellant was riding in an automobile driven by the deceased, Jack Roddy, on U. S. Highway 85 near Hatch, New Mexico; that Transcontinental, through its agent and driver, was operating one of its passenger motor buses on said highway; that at said time and place the decedent, Roddy, and Transcontinental were operating their respective vehicles in a careless and negligent manner, and that their joint and concurrent negligence caused the vehicles operated by them to collide; that at the time and place of the accident the deceased, Roddy, was an employee or agent of American Linen and Colonial, or one or more of them, and at the time of the accident was acting within the scope of his employment; that appellant was accompanying the decedent, Roddy, for his benefit and the benefit of his said employers, but that appellant had no control over the operation of said vehicle; that as a direct and proximate result of the joint and concurrent negligence of Transcontinental and the deceased, Roddy, and each of them, the appellant received serious bodily injuries which resulted in the amputation of both legs above the knees, pain and suffering, permanent disability, loss of earnings, and the impairment of her earning capacity.

Appellant's second count was filed as an alternative to count one and was directed against Transcontinental. Under this count the complaint generally alleged and prayed for a recovery on the theory of last clear chance.

Transcontinental answered denying any negligence on its part, although admitting that the motor vehicle operated by the deceased, Roddy, was being operated in a negligent manner; admitted that an accident occurred between the Roddy vehicle and the bus of Transcontinental, and that appellant was thrown from the Roddy vehicle and suffered the amputation of both legs above the knees. By affirmative defense, Transcontinental alleged that appellant's complaint failed to state a claim upon which relief could be granted, and raised the defenses of joint venture, sudden emergency, contributory negligence and unavoidable accident. Transcontinental denied the allegations of count two of appellant's complaint, except that it admitted that the accident occurred near the northerly approach of a bridge located at or near the accident scene. In answer to the crossclaim of the Roddy Estate, Transcontinental admitted that a collision occurred between its motor bus and the crossclaimant's vehicle, but denied any negligence on its part. Transcontinental also affirmatively pleaded the defenses of contributory negligence, joint venture, assumption of risk and unavoidable accident.

Colonial answered admitting that an accident had occurred between a vehicle in which appellant was riding and Transcontinental's bus, and admitted that it was engaged in the laundry business in Las Cruces, but otherwise generally denied the other allegations of said complaint. In addition, Colonial alleged that appellant's complaint failed to state a claim upon which relief could be granted, and affirmatively alleged the separate defenses of contributory negligence, unavoidable accident and assumption of risk.

American Linen answered alleging the identical defenses raised by Colonia, except that it alleged it is engaged in the business of renting linens and is not in the laundry and dry cleaning business.

The Roddy Estate filed an answer specifically denying negligence on the part of the deceased, Roddy; admitted that the accident occurred between the bus of Transcontinental and Roddy's vehicle; affirmatively alleged that appellant's amended complaint failed to state a claim upon which relief could be granted; alleged that appellant was a guest in Roddy's vehicle; and also raised the defenses of contributory negligence, unavoidable accident, joint enterprise and assumption of risk. The Roddy Estate also filed a crossclaim against Transcontinental, alleging negligence which resulted in the serious injury and death of Roddy. A second cause of action in the crossclaim alleged and prayed for a recovery under the doctrine of last clear chance. A second cause of action in the second crossclaim made a demand for damages to the 1955 Cadillac owned by the deceased, Roddy.

The case came on for trial before a jury in Sierra County, New Mexico, and at the conclusion of appellant's case, all of the appellees moved for a directed verdict.

Transcontinental, by separate motions, moved for a directed verdict as to the issues raised between appellant and Transcontinental, and as to the issues raised by the crossclaim against Transcontinental by the Roddy Estate on the ground, among others, that there was no substantial evidence of negligence on its part, and that there was no substantial evidence that any action of Transcontinental was a proximate cause of the alleged collision.

The Roddy Estate moved for a directed verdict on the ground, among others, that there was no competent evidence of negligence against the decedent, Roddy.

American Linen moved for a directed verdict on the ground that appellant had failed to prove by competent evidence that decedent, Roddy, at the time and place of the accident, was an employee or agent of American Linen, acting within the scope of his employment; that the evidence shows affirmatively that the said Jack Roddy was never, and particularly at the time and place of the accident, an employee or agent of American Linen; that there was no evidence that Roddy was subject to any order or control of American Linen, or that American Linen had the right to control or to discharge Roddy for disobedience or misconduct.

Colonial moved for a directed verdict on the ground that appellant had failed to prove by competent evidence that Roddy was, at the time and place of the accident, an employee or agent of Colonial, acting within the scope of his employment.

The trial court sustained the motions made by Transcontinental as to the claim of appellant and as to the crossclaim of the Roddy Estate. It also sustained the motions on behalf of American Linen and Colonial, but denied the motion on behalf of the Roddy Estate. Judgments were entered in conformity with the trial court's rulings, and an appeal was taken from the several judgments.

When the trial of the cause was resumed, after the trial court had sustained the motions for directed verdict as hereinbefore set out, appellant moved to dismiss, without prejudice, her cause of action against the Roddy Estate and this motion was granted.

The first question for decision is whether there is substantial evidence in the record that Transcontinental was negligent and that such negligence was the proximate cause of the accident.

The accident occurred about 2:00 o'clock on the early morning of March 20, 1959, when Roddy's Cadillac automobile in which appellant was riding collided with a bus of Transcontinental near a bridge just north of Hatch, New Mexico. On the night of March 19, 1959, at about 9:00 p. m., appellant saw Jack Roddy at the American Legion Bar in Hatch, where she had gone for a sandwich. Roddy was there when she went in and was behind the bar putting up linen. After Roddy finished putting up linens he came from behind the bar and started talking to appellant. They played a bowling machine for awhile and about 10:30 p. m. left the American Legion Bar in Roddy's car and went to the Blue Moon Bar in Salem, which is located about five miles north of Hatch on U. S. Highway 85. Appellant's purpose in making this trip with Roddy was to introduce him to Mannie Valles, the owner of the Blue Moon Bar, and try to get the linen service there at the bar. Although appellant and Roddy both drank beer during the evening, neither of them became drunk. About 2:00 a. m. appellant and Roddy left the Blue Moon Bar in Roddy's car and proceeded in a southerly direction toward Hatch on U. S. Highway 85 with Roddy driving. Appellant was sitting in the front seat to the right of Roddy. Roddy drove at a normal rate of speed of between 35 and 40 m. p. h. As they approached the bridge where the accident occurred, appellant reached down in her purse and was looking for cigarettes and matches in the darkness. At this time Roddy was driving on the right-hand side of the highway, but during the time appellant was looking for her cigarettes and matches she did not know where he was driving on the highway. While fumbling in her purse, she looked up and saw ...