Frank Bond & Son, Inc. v. Reserve Minerals Corp.

• Decision Date: 16 February 1959
• Docket Number: No. 6452,6452
• Parties: FRANK BOND & SON, INC., a corporation, Plaintiff-Appellee and Cross-Appellant, v. RESERVE MINERALS CORPORATION, a corporation, Defendant-Appellant and Cross-Appellee.
• Court: New Mexico Supreme Court

Page 858

335 P.2d 858

65 N.M. 257

FRANK BOND & SON, INC., a corporation, Plaintiff-Appellee and Cross-Appellant, v. RESERVE MINERALS CORPORATION, a corporation Defendant-Appellant and Cross-Appellee.

No. 6452.

Supreme Court of New Mexico.

Feb. 16, 1959.

Bigbee & Stephenson, Santiago E. Campos, Santa Fe, for appellant and cross-appellee.

Iden & Johnson, Richard G. Cooper, Albuquerque, for appellee and cross-appellant.

CARMODY, Justice.

This is a case involving a question of damages by the wrongful removal of water from a stock tank, the plaintiff-appellee seeking damages for the value of the water taken and damages to their stock-raising activities in the sum of $6,940 and punitive damages in the sum of $2,000. The case was tried before a jury in Sandoval County and the jury awarded a verdict of $4,900 actual damages and $1,000 punitive damages. Appellant moved to set aside the verdict and alternatively for a new trial. A judgment based upon the verdict was entered, followed shortly thereafter by an order denying appellant's motion and directing a remittitur in the sum of $1,400. The appellant appeals and the plaintiff-appellee cross appeals.

We will first dispose of the points relied upon by defendant-appellant, whose first claim of error relates to the question of whether or not there was substantial evidence to support the verdict, basically the question of proof of damages.

It would appear that there was no direct, positive evidence as to the exact amount of water taken, but there was evidence of taking some water (in fact, the appellant admits this), and the jury, we believe, from the evidence could arrive at the approximate amount of water taken based upon the number of core drilling holes drilled by the appellant in the immediate vicinity, the number of drilling rigs operating, the days of operation, the amount of water needed per day for each rig, and the number and capacity of water trucks used. There was also testimony as to a means of computing the value of the water taken, and the difficulties and loss caused to the stock-raising activities of the appellee occasioned by the fact that there was a reduced amount of water available, from all of which the jury could arrive at the amount of damages without engaging in speculation.

It is the rule in New Mexico, and in practically all jurisdictions, that while a plaintiff must show with reasonable certainty that he has suffered damages by reason of the wrongful act of the defendant, once the cause and the existence of damages have been so established, recovery will not be denied because the damages are difficult of ascertainment. Nichols v. Anderson, 1939, 43 N.M. 296, 92 P.2d 781; Pendergrass v. Lovelace, 1953, 57 N.W. 661, 262 P.2d 231; Young v. New Mexico Broadcasting Co., 1956, 60 N.M. 475, 292 P.2d 776; Rudolph v. Guy, 1956, 61 N.M. 284, 299 P.2d 462; Mountain States Tel. & Tel. Co. v. Hinchcliffe, 10 Cir., 1953, 204 F.2d 381; Stern v. Dunlap Co., 10 Cir., 1955, 228 F.2d 939, 943. This latter case, the opinion by Chief Judge Bratton, states the rule clearly and concisely, as follows:

'Recovery of damages cannot be had if there is uncertainty as to whether the rights of the complainant have been invaded. But damages may be awarded where there is no uncertainty as to whether the rights of plaintiff were invaded, even though there may be some uncertainty respecting the amount of damages sustained. * * * It is enough if the evidence adduced is sufficient to enable the court or jury, as the case may be, to make a fair and reasonable approximation. (Citations.)'

Appellant contends that the rule in Stevens v. Mitchell, 1947, 51 N.M. 411, 186 P.2d 386, is applicable to this case. However, we do not feel that the case is authority, for the reason that in that case there was almost a complete lack of showing of actual loss and resultant damages, whereas here there is definite proof of both, even though the damages may not be determined with mathematical precision.

Appellant next contends that certain remarks made by counsel for the appellee in summation were prejudicial. The substance of these claimed remarks was set out in appellant's motion for a new trial, but nowhere in the transcript do the remarks appear. Appellant admits that the trial court sustained objection to the remarks when made and instructed the jury to disregard the same, but, here again, unfortunately, there is nothing in the record before us. Appellant did not move for a mistrial. Therefore, at the outset, we are faced with the general rule that this court will not pass upon matters which are not properly presented by the record. It was said in Davis & Carruth v. Valley Mercantile & Banking Co., 1928, 33 N.M. 295, 265 P. 35, 37:

'It has frequently been decided that, where alleged improper remarks of counsel are not embraced in the bill of exceptions, they cannot be considered on appeal.'

Immediately following the above quoted statement, illustrations of the rule are set out. It is not necessary to repeat them all here, and two of them should suffice as to the matter directly involved:

"(Ill.1910) Where a party desires to raise for review the propriety of remarks of counsel in argument to the jury, the court must certify by bill of exceptions what the remarks were, and not incorporate in lieu thereof in the bill of exceptions an affidavit of opposing counsel as to what they were. Chicago, B. & Q. R. Co. v. F. Reisch & Bros., 247 Ill. 350, 93 N.E. 383."

"In Aetitis v. Spring Valley Coal Co., 150 Ill.App. 497, it was decided that a complaint of the remarks of counsel to be properly urged should show, not disconnected sentences objected to, but the entire context should be preserved, in order that a fair consideration of the propriety of such remarks may be made. So in the case at bar we find the record insufficient to invoke a ruling."

See, also, Rival v. Atchison, T. & S. F. Ry. Co., 1957, 62 N.M. 159, 306 P.2d 648; also, Annotations, 32 A.L.R.2d 9, 33 A.L.R.2d 442, and 45 A.L.R.2d 303 (relating to arguments in criminal cases).

Therefore, it follows that the appellant may not rely upon this claim of error, if error it was. It should, of course, be noted that this court in no wise condones any attempt by counsel to influence a jury by appealing to their bias or sympathy as to matters outside of the record, but here we not only do not have the arguments to the jury but only purported isolated sentences therefrom, and in addition the trial court sustained appellant's objection to the alleged remarks and instructed the jury to disregard them, and we must rely upon the trial court not to have abused its discretion when there is no showing to the contrary. Also, it should be mentioned that the verdict itself does not indicate prejudice or passion.

Appellant's next claim of error relates to the failure of the trial court to give two requested instructions. These instructions, without setting them out in full, relate to whether or not the waters taken by the appellant were public or private waters. The trial court refused to grant the instructions as submitted as not applicable to this case by reason of the provisions of Sec. 75-8-3, New Mexico Statutes 1953 Annotated:

'This article shall not be construed to apply to stockmen or stock owners who may build or construct water tanks or ponds for the purpose of watering stock which have a capacity of ten acre-feet of water or less.'

The testimony was uncontradicted that the two stock tanks in question each had a capacity of less than ten acre feet. Therefore, it follows that the trial court properly refused to give the requested instructions.

Appellant also contends that the trial court erred in...