Clark v. Cassetty

• Decision Date: 05 November 1962
• Docket Number: No. 6922,6922
• Citation: 71 N.M. 89,376 P.2d 37,1962 NMSC 150
• Parties: Joe CLARK and Commercial Standard Insurance Company, Plaintiffs-Appellants, v. G. V. CASSETTY, Defendant-Appellee.
• Court: New Mexico Supreme Court

Page 37

376 P.2d 37

71 N.M. 89

Joe CLARK and Commercial Standard Insurance Company Plaintiffs-Appellants, v. G. V. CASSETTY, Defendant-Appellee.

No. 6922.

Supreme Court of New Mexico.

Nov. 5, 1962.

Smith, Smith & Tharp, Clovis, Aldridge & Aldridge, Hurshel Harding, Farwell, Tex., for appellants.

Rowley, Davis, Hammond & Murphy, Clovis, Crenshaw, Dupree & Milam, Lubbock, Tex., for appellee.

CARMODY, Justice.

Plaintiffs (appellants here) seek a new trial, contending that they were prejudiced because of a false issue, i. e., contributory negligence, having been submitted to the jury.

Plaintiffs claim damages for the fire loss of some eighty-three acres of standing wheat and 10,000 pounds of wheat which had been loaded into defendant's truck. The alleged negligence on the part of the defendant was the operation of the truck with a defective muffler, while the vehicle was being used to haul wheat to a grain elevator from combines working in plaintiff Clark's field. In the process, it was necessary for the truck to cross the field and be loaded from the bins of the combines as they became filled. The stubble remaining after the combines had passed was from six-to-ten inches to two-and-a-half feet tall, and it was necessary for the truck to drive over and through the stubble to approach or leave the combines. The muffler of the truck was some twelve inches from the ground and there was evidence that it was defective. After the truck had received some 10,000 pounds of wheat, it was driven across the field again to take on additional grain from one of the combines, and just before loading, a fire broke out underneath the truck. The fire spread to the windward, destroying eighty-three acres of wheat in addition to the truck, together with the loaded wheat.

The defense was based upon the theory that the plaintiff, through his agent, had instructed the combines to commence their operation on the easterly side of the field, at a time when a thirty- to forty-mile wind was blowing from that direction, the defendant claiming that if the operation had commenced from the west, there would have been very little destruction of wheat. Allied to this claim, the defendant urges that a person of considerable farming experience, such as the plaintiff, should have been aware of the danger of fire and particularly that all exhaust systems can become extremely hot, especially when loaded, and could well cause a fire, regardless of the condition of the exhaust system. We do observe that the defendant's pleadings alleged assumption of risk on the part of the plaintiff Clark, and not contributory negligence, as such.

At the close of the evidence in the case, the trial court instructed the jury on contributory negligence and proximate cause, among other things, and also submitted to the jury, at the defendant's request, two interrogatories, one of which dealt with whether the plaintiff, through his agent, had directed that the operations commence on the east side of the field, and, second, that if the jury found this was true, considering the weather as it then existed, whether the plaintiff was contributorily negligent. The jury answered both interrogatories in the affirmative and also returned its verdict in favor of the defendant. The plaintiff strenuously objected to the submission of the interrogatories, but did not state any exception to the giving of the general instruction on contributory negligence.

The plaintiffs moved for judgment notwithstanding the verdict or for new trial, and upon this being denied and judgment entered, filed a motion for new trial, which was also refused. On both of these occasions, as well as at the time of giving the interrogatories, the question of whether there was any evidence to justify the submission of contributory negligence to the jury was brought to the attention of the trial court. It is not contended that the error, if such it was, was not preserved.

We are thus faced with the question as to whether or not, based upon the testimony offered, it was error to allow the jury to consider the question of contributory negligence.

It is quite obvious that the direction of the wind played a large part in the 'damage' to the standing wheat, although it is questionable if it had anything at all to do with the loss of the wheat already on the truck. Be this as it may, can it be said that the plaintiff's action proximately contributed to the 'injury'? We think not. The terms 'injury' and 'damage' are not synonymous--in fact, they are, in law, materially different. Appellee fails to take this distinction into account. 1 C.J.S. Actions Sec. 15a, page 1005, contains a clear explanation of the difference between the two terms, as follows:

'The term 'injury' is sometimes used in the sense of 'damage,' as including the harm or loss for which compensation is sought, and has been defined as damage resulting from an unlawful act; but in strict legal significance, there is, properly speaking, a material distinction between the two terms, in that injury means something done against the right of the party, producing damage, whereas damage is the harm, detriment, or loss sustained by reason of the injury.'

See, also, Oklahoma City v. Hopcus, 1935, 174 Okla. 186, 50 P.2d 216; and City of North Vernon v. Voegler, 1885, 103 Ind. 314, 2 N.E. 821.

In the instant case, the injury was the fire. Certainly, neither plaintiff's instruction as to where to start the combining operation, nor the wind, were causes, or concurring causes, in starting the fire. As we view the evidence, the proximate cause of the 'injury' was the act of the defendant. The 'injury,' not the resulting 'damage,' apparently would have occurred no matter where the combining operations had been commenced. We said in Moss v. Acuff, 1953, 57 N.M. 572, 260 P.2d 1108:

'No rule of law has been more generally accepted than the rule that the contributory negligence of a plaintiff is a defense for a defendant charged with negligence. Equally accepted is the rule that the right of a plaintiff to recover for his own injury is not affected by having contributed to the injury, unless proximately contributing. Williams v. Haas, 52 N.M. 9, 189 P.2d 632; Haire v. Brooks, 42 N.M. 634, 83 P.2d 980. Also see Miller v. Marsh, 53 N.M. 5, 201 P.2d 341; 60 C.J.S., Motor Vehicles, Sec. 299.'

Also, in Shephard v. Graham Bell Aviation Service, 1952, 56 N.M. 293, 243 P.2d 603, we used the following language:

'* * * The fact that some other cause concurred with the negligence of a defendant in producing an injury does not relieve him from liability, unless it is shown such other cause would have produced the injury independently of defendant's...