Hepp v. Quickel Auto & Supply Co.

• Decision Date: 12 September 1933
• Docket Number: No. 3674.,3674.
• Citation: 25 P.2d 197,37 N.M. 525
• Court: New Mexico Supreme Court
• Parties: HEPPv.QUICKEL AUTO & SUPPLY CO.

37 N.M. 525

25 P.2d 197

HEPP

v.QUICKEL AUTO & SUPPLY CO.

No. 3674.

Supreme Court of New Mexico.

Sept. 12, 1933.

Appeal from District Court, Torrance County; Carl P. Dunifon, Judge.

Action by Margaret Mae Hepp, as administrator of the estate of Edgar Hepp, deceased, against the Quickel Auto & Supply Company. From an adverse judgment, plaintiff appeals.

Reversed and remanded, with directions.

Verdict should not be directed in face of evidence which, if accepted, would support verdict in favor of party against whom it is directed.

Raymond R. Ryan and J. S. Vaught, both of Albuquerque, for appellant.

Reid, & Iden, of Albuquerque, for appellee.

SADLER, Justice.

After the presentation of able oral arguments and helpful briefs upon a rehearing granted in this case, we remain convinced that the result reached in the original opinion is sound. We have concluded, however, to withdraw the opinion heretofore filed and to substitute the present opinion therefor.

The plaintiff, Margaret Hepp, who is appellant in this court, as administrator of the estate of her deceased husband, Edgar Hepp, sought damages from the defendant, a New Mexico corporation, engaged in the garage business at Albuquerque, before the district court of Torrance county, by reason of the death of her husband on the public highway about two miles east of Encino, in Torrance county, N. M.

[1] At the close of plaintiff's case in chief the court upon defendant's motion directed a verdict in its favor. Judgment was entered upon the verdict that plaintiff take nothing and that defendant recover its costs. The present appeal is prosecuted to review that judgment; the only point relied upon for reversal being the claimed error of the court in directing a verdict in favor of the defendant. The plaintiff contends that her evidence was sufficient to support a verdict in her favor, and that the directed verdict against her was therefore unwarranted. She is correct in her statement that a verdict should not be directed in the face of evidence which, if accepted by the jury and made the basis of its action, would support a verdict in favor of the party against whom it is directed. It follows that our attention is at once drawn to a determination of whether plaintiff's evidence made out a prima facie case entitling her to go to the jury.

The plaintiff's intestate had purchased a model A two-door Ford sedan about June 14, 1929, and, after having driven same approximately two thousand miles, left it with defendant for the last of three servicings which had been promised him by it in connection with the sale of the car. This occurred on July 15, 1929. The defendant's employees were at this time informed that plaintiff and her husband were preparing to start on a long trip. The car remained at the defendant's garage for servicing from the time of its delivery there on July 15th until 7 o'clock on the evening of the 16th, except that it was driven to and remained at the home of plaintiff the intervening night of the 15th. On the evening of the 16th it was turned back to the plaintiff and her husband as a finished job.

While the car was in defendant's charge, it had been found necessary to place a new spindle on the left front wheel, an undertaking which involved the tearing down of the brake assembly and its restoration, with consequent readjustment of the brakes. Upon the morning of July 17th, just before starting upon their trip, a “squeak” near the engine having developed, plaintiff and her husband drove the car to the garage of defendant to have this trouble removed. While plaintiff was in the car with one of defendant's employees, driving around a few blocks to locate the “squeak,” she inquired of him why a new car should need another spindle so soon, to which inquiry plaintiff testified he answered: “A. I don't know the terms he used, but he told me that some times those spindles got hot is the way I understood it and melted and locked, and I said I hoped it don't happen in this case, and he informed me that it had been fixed and it wouldn't lock, it was all right.”

Finally having located and removed the “squeak” in the car, plaintiff and her husband, the intestate, started on a trip to Roswell. The car functioned properly and the brakes worked as if in good order and after apparently proper adjustment for a distance of about 110 miles. Then, while plaintiff was driving the car at a speed not exceeding 45 miles per hour over a smooth straight stretch of road about two and a half miles east of Encino, without any application of the brakes and without the touching of any part of the car by its occupants to cause such an occurrence, the left front wheel apparently locked, causing the car to swerve suddenly to the left from the right-hand side of the road where it was traveling and overturn in the ditch, resulting in the death of plaintiff's intestate.

The plaintiff, without attempting to point out or indicate the specific act of negligence responsible for the locking of the left front wheel, charged generally that defendant was careless and negligent in the setting and adjustment of the brakes on said car, and particularly on the left front wheel, and that it so adjusted them that, when the car should have traveled for any considerable length of time, the brake would adhere and lock, thus preventing the revolution of the wheel to which the brake was attached. These allegations of negligence were met by a general denial.

The plaintiff invokes and relies upon the doctrine of res ipsa loquitur, as making out a prima facie case entitling her to go to the jury. Whether, apart from the reason which induces us to pass the question, the doctrine relied upon is applicable in the instant case, is debatable. It is recognized as a rule of necessity, and is based upon the postulate that under the common experience of mankind an accident of the particular kind does not happen except through negligence. It bases its chief claim to justification on the fact that ordinarily the cause of the injury is accessible to the party charged and inaccessible to the person injured.

But, where the facts and circumstances surrounding the injury themselves point with sufficient definiteness to negligence on the part of defendant to warrant an inference thereof, then the reason for an application of the rule fails. The plaintiff under such circumstances is entitled to reach the jury, not by reason of any presumption deduced from common experience, but by force of permissible inferences from the evidence itself.

In other words, where circumstantial evidence touching the injury is sufficient to warrant an inference that some fault of omission or commission representing a breach of duty owing from defendant to the plaintiff caused the injury, the jury is permitted to make a finding of negligence upon the facts adduced in the instant case, apart from, and irrespective of, the doctrine of res ipsa loquitur.

[2] In actual operation, the doctrine of res ipsa loquitur and an application of the rules of circumstantial evidence in negligence cases frequently overlap, and much loose expression is found in the books and decisions, upon the right to look to the circumstances surrounding the injury for the purpose of determining the applicability of the res ipsa loquitur rule. But that in the application of this doctrine as a distinctive rule the probative force of surrounding circumstances evidential of negligence in the particular case are not properly to be considered we are well satisfied.

The proper limitation on the use of the phrase “surrounding circumstances” as frequently employed in connection with a statement of the rule of res ipsa loquitur is well expressed by Judge Pound in Plumb v. Richmond Light & R. R. Co., 233 N. Y. 285, 135 N. E. 504, 505, 25 A. L. R. 685, where, writing the opinion of the court, he said: “The only question thus presented is whether res ipsa loquitur was properly applied. Res ipsa loquitur is a loose but much-used phrase of limited application, which is a symbol for the rule that the fact of the occurrence of an injury and the surrounding circumstances may permit an inference of culpability on the part of the defendant, make out plaintiff's prima facie case, and present a question of fact for the defendant to meet with an explanation. The term ‘surrounding circumstances' in this connection refers not to circumstances directly tending to show lack of care in handling, such as excessive speed, lack of proper control of the car, and the like, which tend in themselves to establish plaintiff's case, but only to mere neutral circumstances of control and management by the defendant, which may, when explained, appear to be entirely consistent with due care.”

Instructive case notes illustrating and emphasizing the distinction between res ipsa loquitur as a distinctive rule, that is, in the purity of its application, and the true field for resort to the rules of circumstantial evidence, are to be found in 59 A. L. R. 468 and 78 A. L. R. 731. We quote from the editor's annotation in 59 A. L. R. 470, 471, as follows:

“In other words, in the situation to which res ipsa loquitur as a distinctive rule applies, there is no evidence, circumstantial or otherwise, at least none of sufficient probative value, to show negligence, apart from the postulate-which rests on common experience and not on the specific circumstances of the instant case-that physical causes of the kind which produced the accident in question do not ordinarily exist in the absence of negligence; that is, in the absence of a breach of duty such as defendant owed to plaintiff. ***

“The principle as to circumstantial evidence measures and accepts the probative force of specific circumstances as evidence of what in the instant case lay behind the physical cause of the accident and was responsible for it. Res ipsa loquitur as a distinctive rule does not measure or accept the probative force of...