Fairchild v. United Service Corporation

• Decision Date: 24 September 1948
• Docket Number: 5099.
• Parties: FAIRCHILD v. UNITED SERVICE CORPORATION et al.
• Court: New Mexico Supreme Court

197 P.2d 875

52 N.M. 289, 1948 -NMSC- 048

FAIRCHILD
v.
UNITED SERVICE CORPORATION et al.

No. 5099.

Supreme Court of New Mexico

September 24, 1948

Appeal from District Court, Bernalillo County; Henry G. Coors, Judge.

Action by James E. Fairchild, administrator of the estate of Kendrick Ivan Fairchild, deceased, against the United Service Corporation and another, to recover damages for wrongful death. Judgment for defendants and plaintiff appeals.

Reversed and cause remanded with instructions. [197 P.2d 876]

[52 N.M. 290] Irwin S. Moise and Lewis R. Sutin, both of Albuquerque, and H. A. Kiker, of Santa Fe, for appellant.

Adams & Chase, of Albuquerque, for appellees.

BRICE, Chief Justice.

Plaintiff (appellant), as administrator of the estate of Kendrick Ivan Fairchild, deceased, instituted this action to recover damages alleged to have been sustained because of the wrongful death of his decedent, caused by defendants' (appellees') negligence.

[52 N.M. 291] After answering defendants moved for a summary judgment, alleging that at the time deceased was struck and killed by defendant corporation's truck the defendant was hauling and disposing of garbage in the City of Albuquerque, and 'said truck at the time of said accident was a public conveyance and was being operated in connection with said corporation's business as a common carrier,' for which reason this action could not be maintained.

The plaintiff filed counter affidavits tending to prove that the defendant corporation was not a common carrier.

Thereafter, on the 2nd day of October, 1947, a summary judgment was entered, in which the defendant was authorized to amend its answer by inserting the words 'for hire' in the second paragraph thereof, so that it thereafter alleged that the defendant 'was engaged in its business of collecting, hauling, and disposing of garbage for hire for the general public within and in the vicinity of the City of Albuquerque.' It was then adjudged that 'plaintiff take nothing by reason of the matters and things alleged in the complaint, and that said complaint be and the same is, hereby dismissed.'

On the 15th day of October, 1947 a motion for appeal was filed by plaintiff, and on the same day an order allowing an appeal to the Supreme Court of New Mexico was entered.

On the 20th day of October, 1947, plaintiff filed a request for permission to move to vacate the order of appeal without prejudice to its right to renew the motion. This motion was sustained and an order entered on the same day, which provided that the order 'entered on October 15, 1947 (order granting appeal) be, and the same hereby is set aside and vacated without prejudice, however, to plaintiff's renewing its motion to appeal.'

Thereafter, on the 20th day of October, 1947, the plaintiff moved the court to vacate its judgment for reasons stated; and on the 28th day of October, 1947, the plaintiff filed a supplementary motion for the same purpose, each of which was overruled, on October 20, 1947, and October 28, 1947, respectively. Thereafter on the 20th day of November, 1947, plaintiff moved for an appeal which was granted by order duly entered on that date.

The several motions and orders entered subsequently to the granting of the first appeal are as follows:

Motion:

'Comes now the plaintiff and respectfully shows the Court that there has heretofore been entered an order allowing an appeal in this Court from a summary judgment entered by the Court on October 2, 1947; that in order that the Court may consider whether or not the summary judgment order heretofore entered should be [52 N.M. 292] vacated and to permit the plaintiff to file a motion requesting the vacating of said order, the plaintiff respectfully moves the Court that the order allowing an appeal in this cause be vacated and set aside by the Court, without prejudice to renewing the motion for an appeal.'

'Order. This cause coming on for hearing on the motion of the plaintiff to vacate the order allowing an appeal to the Supreme Court, and that Court being duly advised in the premises;

Now, Therefore, It Is By The Court Ordered, Adjudged And Decreed: That the order allowing an appeal to the Supreme Court of the State of New Mexico, entered on October 15, 1947, be and the same hereby is set aside and vacated, without prejudice however to the plaintiff's renewing its motion to appeal.'

'Motion. Comes now the plaintiff and moves the Court for an order vacating the summary judgment entered in this cause [197 P.2d 877] on October 2, 1947, and as grounds for said motion respectfully shows the Court:

'1. That Chapter 125 of the 1947 Session Laws of the State of New Mexico permits the bringing of this cause in the name of the personal representative of the deceased if any other person entitled to do so has not brought suit within nine (9) months after the death; that more than nine (9) months had passed without suit being brought at the time that the summary judgment was entered in this cause, and that the plaintiff was a proper party plaintiff to bring this suit; that there is attached hereto a certificate of the Clerk of the Court setting forth that no action had been commenced within nine (9) months after the death by any other person entitled to sue, which said certificate is marked 'Exhibit A', hereby referred to and made a part hereof.'

'Supplementary Motion: Comes now the plaintiff and in supplement of his motion for an order vacating the summary judgment entered in this cause would respectfully show to the Court:

'1. That this cause of action was brought in the name of the personal representative of the deceased, whereas Section 21-104 of New Mexico Statutes 1941 Compilation provided that where the death was occasioned by reason of the negligence of a common carrier, the action should be brought by the wife. Under the law, the plaintiff has the right to file a petition substituting the wife as plaintiff, and the date of the substitution dates back to the time of the filing of the complaint.

'II. If the Court will vacate the summary judgment, the plaintiff will file its motion and petition for substitution of parties plaintiff, and this cause may then proceed to trial.'

'Order. It Is Ordered that the motion filed herein on October 20, 1947, by plaintiff [52 N.M. 293] asking that summary judgment entered herein on October 2, 1947 be vacated, be and the same hereby is denied and overruled. To all of which the plaintiff excepts.'

'Order: This Cause came on for hearing upon plaintiff's supplementary motion for an order vacating the summary judgment entered herein, and the Court having heard argument of counsel and considered trial briefs submitted by counsel raising among other things, the question of the Court's jurisdiction to hear and determine said motion, and the Court being of the opinion that, in view of this order denying said motion, it is unnecessary to decide the question of jurisdiction, and now being fully advised in the premises, It Is Ordered that said supplementary motion be, and the same is, hereby denied, to all of which the plaintiff is duly allowed an exception.'

Thereafter the appellant moved for an appeal to the Supreme Court, and the following order allowing appeal was entered:

'Order Allowing Appeal. This cause coming on for hearing on motion of the plaintiff for an appeal from the summary judgment entered in this cause against him, and also from that certain order overruling supplemental motion to vacate summary judgment, and it appearing to the Court that said plaintiff has been aggrieved by said judgment.

'Now, Therefore, It Is By The Court Ordered that the plaintiff be and he hereby is allowed an appeal to the Supreme Court of the State...