Campbell v. Smith, No. 6778
| Docket Nº | No. 6778 |
| Citation | 362 P.2d 523, 68 N.M. 373, 1961 NMSC 59 |
| Case Date | May 09, 1961 |
| Court | Supreme Court of New Mexico |
Page 523
v.
Porter A. SMITH, Bessie Smith, Robert Smith, John M. Pettis,
Grace Pettis, Ury Ealum and Betty Jo Ealum,
Defendants-Appellants.
Rehearing Denied June 26, 1961.
Page 524
[68 N.M. 374] LaVor Burnham, Aztec, Standley & Kegel, Santa Fe, for appellants.
Morgan & Cain, Farmington, for appellee.
NOBLE, Justice.
Appellant appeals from a jury verdict of $14,000 in an action to recover the value of services rendered and benefits accruing to appellants by reason of appellee's labor, knowledge or services in the construction of a drive-in theatre at Aztec, New Mexico.
[68 N.M. 375] Appellee was employed by appellants, a partnership, as manager of the Rincon drive-in theatre at Aztec at a weekly salary of $70 and a percentage of the annual profits from operation of the theatre. Appellants determined to build a second drive-in theatre and requested appellee to handle to construction of the theatre. The complaint alleges appellee's employment in the management of the Rincon theatre and that because of his knowledge of the theatre business he was requested to handle the construction, operation and management of the new theatre. Appellants agreed to pay all costs of construction and equipment. It is further alleged that appellants informed appellee that he was to be in charge of and responsible for the construction of the theatre; that he was to purchase all equipment and supplies; to effectuate all possible savings in the construction and to employ all necessary labor. It is further alleged that appellee was to have sole supervision and direction of the construction and of all personnel both in construction and in the management of the theatre without interference by appellants. The complaint alleged that as consideration for appellee's services both in the construction and management of the second theatre he was to receive a salary of $30 per week for management of the new theatre when completed and a share of its annual net profits. He was not paid a wage or salary in connection with the second theatre during its construction. Construction was commenced in March 1957 and completed and the theatre opened for business on May 1, 1958. Appellee managed both theatres until August 1958 when he quit because of a disagreement with appellants over his sole control of employees. This action followed to recover the value of his services in the construction of the second theatre.
The answer alleged the failure of the complaint to state a cause of action but a ruling of the trial court was not invoked on that motion or allegation. It is urged on appeal that the complaint fails to state facts upon which relief can be granted, in that facts are alleged showing appellee to have been an independent contractor; that he failed to allege a contractor's license as required by Sec. 67-16-14, N.M.S.A.1953 Comp., and that the court was therefore without jurisdiction. We are asked to determine that question raised for the first time on appeal.
Appellee, on the other hand, asserts that the claimed error cannot be urged on appeal since a ruling of the trial court was not invoked. It is likewise urged that the testimony adduced at the trial shows the relationship to have been that of master and servant rather than one of an independent contractor.
Failure of a complaint to state a cause of action is jurisdictional and may [68 N.M. 376] be raised for the first time on appeal. Phillips v. Allingham, 38 N.M. 361, 33 P.2d 910; Lasko v. Meier, 394 Ill. 71, 67 N.E.2d 162. See also Salter v. Kindom Uranium Corp., 67 N.M. 34, 351 P.2d 375. L. & B. Equipment Co. v. McDonald, 58 N.M. 709, 275 P.2d 639 is distinguishable. The statute applicable there did not prevent enforcement for violation of the license requirement.
However, when failure of a complaint to state a cause of action is raised
Page 525
for the first time on appeal or where the party goes to trial on the merits after an adverse ruling on a motion to dismiss, we must then test the sufficiency of the complaint in the light of the doctrine of aider by verdict. Phillips v. Allingham, supra. Aider by verdict is:'The presumption of the proof of all facts necessary to the verdict as it stands, comes to the aid of a record in which such facts are not distinctly alleged.' Black's Law Dictionary (4th Ed.)
This is not a case where facts are imperfectly or not distinctly alleged. Appellee alleged facts showing him to meet the test of an independent contractor. If evidence was admitted without objection showing a different status, that does not supply an allegation imperfectly pleaded. It would be in direct contradiction. In any event the relationship or status of appellee was not...
To continue reading
Request your trial
-
Bank of New Mexico v. Freedom Homes, Inc., 4409
...contractor; "To give effect to this claim would be to . . . nullify plain statutory provisions to the contract." Campbell v. Smith, 68 N.M. 373, 362 P.2d 523 (1961) states: "One who has shown himself to be required to have a contractor's license cannot recover under quantum meruit in the ab......
-
Sundance Mechanical & Utility Corp. v. Atlas, 18077
...held that failure to state a cause of action is jurisdictional and may be raised for the first time on appeal. (citing Campbell v. Smith, 68 N.M. 373, 362 P.2d 523 Id. at 676-77, 410 P.2d at 403. In Campbell v. Smith another judgment in favor of a contractor was set aside, also for failure ......
-
Shaver v. Bell, 7501
...as to the means to be used in reaching that result, he is an employee. See Latta v. Harvey, 67 N.M. 72, 352 P.2d 649; Campbell v. Smith, 68 N.M. 373, 362 P.2d 523; and Shipman v. Macco Corporation, 74 N.M. 174, 392 P.2d 9, where we last discussed this problem. Miller v. Sinclair Refining Co......
-
Allsup v. Space, 6763
...also urges that plaintiff's, Oliver Allsup's, services should be recompensed at the rate for unskilled labor. In Campbell v. Smith, 68 N.M. 373, 362 P.2d 523, 527, we quoted with approval from Restatement of the Law, Contracts, Vol. II, Sec. 347, p. 587, as 'c. If the plaintiff's performanc......
-
Bank of New Mexico v. Freedom Homes, Inc., 4409
...contractor; "To give effect to this claim would be to . . . nullify plain statutory provisions to the contract." Campbell v. Smith, 68 N.M. 373, 362 P.2d 523 (1961) states: "One who has shown himself to be required to have a contractor's license cannot recover under quantum meruit in the ab......
-
Sundance Mechanical & Utility Corp. v. Atlas, 18077
...held that failure to state a cause of action is jurisdictional and may be raised for the first time on appeal. (citing Campbell v. Smith, 68 N.M. 373, 362 P.2d 523 Id. at 676-77, 410 P.2d at 403. In Campbell v. Smith another judgment in favor of a contractor was set aside, also for failure ......
-
Shaver v. Bell, 7501
...as to the means to be used in reaching that result, he is an employee. See Latta v. Harvey, 67 N.M. 72, 352 P.2d 649; Campbell v. Smith, 68 N.M. 373, 362 P.2d 523; and Shipman v. Macco Corporation, 74 N.M. 174, 392 P.2d 9, where we last discussed this problem. Miller v. Sinclair Refining Co......
-
Allsup v. Space, 6763
...also urges that plaintiff's, Oliver Allsup's, services should be recompensed at the rate for unskilled labor. In Campbell v. Smith, 68 N.M. 373, 362 P.2d 523, 527, we quoted with approval from Restatement of the Law, Contracts, Vol. II, Sec. 347, p. 587, as 'c. If the plaintiff's performanc......