Hartford Fire Ins. Co. v. Horne

• Court: New Mexico Supreme Court
• Writing for the Court: McGHEE; LUJAN
• Citation: Hartford Fire Ins. Co. v. Horne, 65 N.M. 440, 338 P.2d 1067, 1959 NMSC 26 (N.M. 1959)
• Decision Date: 17 March 1959
• Docket Number: No. 6487,6487
• Parties: HARTFORD FIRE INSURANCE COMPANY, a Corporation, and Sam A. Minces, d/b/a Nehi Bottling Company, Plaintiffs-Appellants, Cross-Appellees, v. Hugh R. HORNE, Administrator of the Estate of Pat Bolke, deceased, Defendant-Appellee and Cross-Appellant.

Page 1067

338 P.2d 1067

65 N.M. 440

HARTFORD FIRE INSURANCE COMPANY, a Corporation, and Sam A Minces, d/b/a Nehi Bottling Company Plaintiffs-Appellants, Cross-Appellees, v. Hugh R. HORNE, Administrator of the Estate of Pat Bolke deceased, Defendant-Appellee and Cross-Appellant.

No. 6487.

Supreme Court of New Mexico.

March 17, 1959.

Modrall, Seymour, Sperling, Roehl & Harris, Allen C. Dewey, Jr., Albuquerque, for appellants.

Bingham & Klecan, Albuquerque, for appellee.

McGHEE, Justice.

This action was brought as a result of a head-on collision between a truck owned by plaintiff Minces and a car driven by Horne's decedent, Pat Bolke, on State Road 47 south of Albuquerque about one hour after sunset on October 4, 1956, in which the truck and its cargo were practically destroyed and Miss Bolke was killed.

Minces sought damages he sustained which were not covered by an insurance policy and Hartford Fire Insurance Company sought reimbursement for money paid by it on account of an insurance policy it had issued to Minces.

The administrator sought damages for the death of his decedent which he claims was due to the negligent operation of the truck by its driver who was an employee of Minces.

Jury verdicts were returned denying damages on the complaint and counter-claim and each party has appealed from the judgment rendered on the verdicts.

Miss Bolke was rendered unconscious by the collision and died shortly thereafter without having regained consciousness. The two drivers were the only known eye-witnesses.

The truck driver was proceeding in a northerly direction on his return trip from Belen to Albuquerque where he had been delivering bottled Nehi and collecting empty bottles. Miss Bolke was returning from Albuquerque to her home in Belen when the collision occurred on what was described by one witness as a sharp curve, but not one of ninety degrees; by another as a half-moon curve, and by still another as a curve which could be made at any speed up to 80 to 90 miles an hour. There was a wide shoulder with a deep ditch on each side of the paved two-lane road. The road from Belen ran generally in a northerly direction except for a stretch running in easterly direction just before reaching the curve. The road from Albuquerque to the point of collision ran in a southerly direction. Upon approaching the curve, the vision of one traveling the road to Albuquerque would be limited to some degree by a hill on the western side of the road beyond the curve. One witness for the plaintiffs gave the maximum range of visibility for one going north up the road beyond the curve as 250 yards. Visibility increased as the northbound driver rounded the curve.

The truck driver testified that as he was making the curve Miss Bolke's car came around the hill; that he had been unable to see her from where she started the curve but saw her in the process of making it, and observed she was oin his side of the road when she was approximately one hundred yards or less away; that he flashed his lights from dim to bright and back to dim; that when he saw that she was not going to turn into her proper lane he swung the truck to the left in an attempt to avoid a collision and then the collision occurred, the point of impact on the truck being its right front which, also, was the point of impact on the Bolke car. Each vehicle was apparently turning left at the time of impact.

There was a double yellow line on the curve and the point of impact was about one foot or foot and one-half east of the center line which was the proper lane of traffic for the truck and the wrong one for the Bolke car. This put a part of the truck over the center line but the plaintiffs explain this resulted from the left turn made by the truck driver in his attempt to avoid the collision.

The first error assigned by plaintiffs is that the court erred in giving of instructions concerning the presumption that the deceased used due care. Instruction No. 11 on the plaintiffs' case, reads:

'You are instructed that the defendant's decedent, Pat Bolke, is presumed by law to have used due care for her own safety, i. e. she is presumed to have been free from negligence. This presumption is founded on the law of nature, i. e. the instinct of self preservation. This presumption of due care and caution on the part of Pat Bolke, though rebuttable, is in the eyes of the law the same as evidence, and unless you find that this presumption of due care and caution on the part of Pat Bolke was overcome by a preponderance of the evidence produced by the plaintiffs of negligence on the part of Pat Bolke, then that presumption of due care on the part of Pat Bolke shall prevail and your verdict shal be for the defendant on the plaintiffs' complaint.'

A like instruction numbered 11A was given on the counter-claim.

The plaintiffs say first an instruction on the presumption of due care has no place in a negligence case, that the rule of the burden of proof and preponderance of evidence takes care of the situation in that the burden of proving negligence is on the plaintiff.

They next say that even though it be proper to instruct on the presumption of due care that part of the quoted instruction which says that the presumption is in the eyes of the law the same as evidence is erroneous. They also say that even if we hold an instruction on the subject is sometimes proper, the proof clearly showed that Miss Bolke did not use due care and, therefore, the presumption disappeared and was not properly the subject of an instruction.

The plaintiffs cite a number of authorities, principally law review articles by eminent authors, in support of their first position, and also the case of Hutton v. Martin, 1953, 41 Wash.2d 780, 252 P.2d 581, in which the views as expressed by Dean Judson F. Faulkner of the University of Washington Law School, as stated in an article 'Notes on Presumptions,' 15 Wash.L.Rev. 71, 74, (1949), were adopted and their former decisions on the point favoring instructions on the presumption of due care were overruled. Also see procedural effect of presumption of due care, Pennsylvania Bar Association Quarterly, March 1959, p. 208.

This doctrine of the presumption of due care on the part of a deceased is firmly imbedded in our jurisprudence, being first announced in Padilla v. Atchison, Topeka & Santa Fe Ry. Co., 1911, 16 N.M. 576, 596, 120 P. 764, and followed in Hogsett v. Hanna, 1936, 41 N.M. 22, 63 P.2d 540; Griego v. Conwell, 1950, 54 N.M. 287, 222 P.2d 606, and Trefzer v. Stiles, 1952, 56 N.M. 296, 243 P.2d 605.

The article by Dean Faulkner is a very scholarly one and quite intriguing, but we doubt if under it an ordinary jury could follow his reasoning and properly apply the doctrine of presumptions. We do not believe we should overrule our former cases on the subject that an instruction on the presumption of due care should be given in a proper case and that it has a place in our jurisprudence.

We are not satisfied, however, with the statement made in the Trefzer case, supra, that such a presumption is evidence in the eyes of the law. The California courts do so hold but we think the instruction went too far. We believe the correct rule is that the presumption operates to protect or shield a person in whose favor it is invoked until credible and substantial evidence which would support a finding is introduced to the contrary, and that it then vanishes as though it had never existed, as was stated by Justice Compton in the agency case of Morris v. Cartwright, 1953, 57 N.M. 328, 258 P.2d 719. The writer feels that a few words in extenuation of the error as to the effect of the presumption in the Trefzer case should be stated. The files in this case have been again examined and they disclose that no answer whatever was made by the appellee to the claim of error by the appellant because of the refusal of the trial court to give the requested instruction set out above. Neither was the correctness of the requested instruction questioned; the error slipped through and, like Topsy, it has grown. The particular errors as to the effect of the presumption, however, does not avail the plaintiff anything here as they failed to point it out to the trial court, but we welcome the opportunity to set the members of the bench and bar straight on the question.

The instruction was copied from the Trefzer case.

The claim that such an instruction should not have been given in this case in view of the record is, however, well taken. There was but one surviving eye-witness, the truck driver, and his testimony clearly shows that the deceased did not use due care. She came down the road a short distance north of the point of impact at a speed shown through a disinterested witness to have been more than the legal limit of 60 miles per hour, and for approximately 100 yards immediately preceding the collision she was on the wrong side of the road, and had failed to heed the warning given by the truck driver when he brightened his headlights and then dimmed them.

A careful review has been made of all the testimony in the case, including that of the truck driver. The answers of the latter are clear, responsive and as convincing as the written page can be. It should be here noted that neither the trial judge nor the jurors had the advantage of seeing and hearing this witness, and in such a case the members of this Court are in as good a position as any one to pass upon his testimony. In addition, the physical facts at the scene of the collision corroborate the testimony of the truck driver that the Bolke car was traveling in her left lane and was across a yellow line at the time of the collision.

Under such facts an instruction on the presumption of due care should not be given. Morris v. Cartwright, supra; McNamer v. American Insurance Co., 1954, 267 Wis. 494, 66 N.W.2d 342; Mittelstadt v. Hartford Accident & Indemnity Co., 1957, 2 Wis.2d 78, 85 N.W.2d 793; Smith v. Darling &...