Hodgkins v. Christopher

• Decision Date: 08 September 1954
• Docket Number: No. 5794,5794
• Parties: HODGKINS et al. v. CHRISTOPHER et al.
• Court: New Mexico Supreme Court

Page 153

274 P.2d 153

58 N.M. 637

HODGKINS et al. v. CHRISTOPHER et al.

No. 5794.

Supreme Court of New Mexico.

Sept. 8, 1954.

Whatley & Oman, Las Cruces, for appellants.

Sherman & Hughes, Deming, for appellee.

SADLER, Justice.

This is an appeal from a judgment entered by the district court of Luna County in an action by the plaintiff in that court under the wrongful death statute in which he was awarded a recovery against defendants by the jury. Appellants here were the defendants below and the parties will be designated here as they were below.

In his complaint filed May 15, 1953, the plaintiff, as administrator of the estate of decedent, sought $60,000 as the value of decedent's life and $1,015, subsequently reduced to $910.06, by way of ambulance, medical and funeral expenses. Negligence on defendants' part was based on the allegation that defendant, Sanford, at the time of the accident was operating the tank trailer belonging to defendant, Christopher, at an excessive and unlawful speed and was following too closely behind the pickup in which decedent was riding and in failing to keep a proper lookout for other travelers on the highway. The defendants answered entering a general denial and pleading joint venture on the part of plaintiff's decedent and those accompanying him at the time of the accident which was said to have been a proximately contributing cause of the accident.

Thereafter, Mountain States Mutual Casualty Company, a corporation, filed its third party complaint setting up the fact that it was the insurer of the workmen's compensation policy carried by the New Mexico State Highway Department. It sought recovery from defendants by way of assignment of the monies paid out by it for ambulance, medical and funeral expenses in connection with the death and burial of decedent.

The facts recited below may fairly be said to be within the jury's verdict. The decedent, Alick F. Morrison, at time of his death, was an employee of New Mexico State Highway Department as a No. 2 Operator, receiving a salary of $210 per month. He was married and resided with his wife, pregnant at time of his death, at Deming, New Mexico. The crew in which he worked was composed of himself, E. V. Krametbauer and Laddie Kurtz, the latter two appearing as witnesses in the case. All members of the crew maintained their homes in Deming from which point they traveled on weekends to and from their work in an International pickup truck owned by the Highway Department. From Monday to Friday of each week they lived in a trailer house two miles east of Animas from which place they traveled daily in the pickup to and from their work.

On the day of the accident which resulted in decedent's death, April 10, 1953, they were working on a job near Hachita, New Mexico. In the forenoon trouble developed and one of their road machines, whereupon they terminated work at the job and decided to go to Hachita to look over a section of road there and, thence, on over to Deming. They came onto U. S. Highway 70-80 several miles west of Gage, New Mexico, were the Hachita road intersects the highway and turned east towards Deming. The deceased was riding in the cab on the right side of the pickup, Laddie Kurtz was in the middle and Krametbauer was driving. While proceeding along the highway between 35 and 40 miles per hour, a tank trailer weighing approximately 22,000 pounds owned by the defendant, Roscoe Christopher, and driven by the defendant, Douglas Sanford, ran into the rear of the pickup belonging to the New Mexico Highway Department, inflicting the injuries on decedent from which he died at Ladies Hospital in Deming the following day.

The jury's general verdict in favor of the plaintiff carried with it a finding that the defendants were guilty of negligence in the respects alleged in plaintiff's complaint as recited hereinabove, the major factor in which was excessive speed in running down the pickup truck in which decedent was a passenger and inflicting on him mortal injuries. The verdict awarded damages in plaintiff's favor in the sum of $45,000 upon which a joint and several judgment in his favor was rendered against the two defendants and their dissatisfaction with such judgment becomes the basis of this appeal.

The first claim of error urged on behalf of defendants relates to the admission in evidence of certain expenses as the basis for damages, to-wit, the ambulance, medical and burial expenses of decedent totaling $910.06. They quote portions of the wrongful death statute dealing with damages to be awarded, 1941 Comp. Sec. 24-103, reading:

'* * * and the jury in every such action may give such damages, compensatory and exemplary, as they shall deem fair and just, taking into consideration the pecuniary injury or injuries resulting from such death to the surviving party or parties entitled to the judgment, or any interest therein, recovered in such action, and also having regard to the mitigating or aggravating circumstances attending such wrongful act, neglect or default.'

The bills showing these expenses were introduced both by the plaintiff as administrator and by the third party plaintiff, Mountain States Mutual Casualty Company, a corporation, claiming by statutory assignment as the workmen's compensation insurer of New Mexico State Highway Department against any recovery to be awarded plaintiff. The basis of the claim of prejudice in this behalf is that under the wrongful death statute 'the present worth of the life of deceased' presents the true measure of damages as a criterion, touching which expenses of the kind objected to could have no relevancy whatever. Cerrillos Coal R. Co. v. Deserant, 9 N.M. 49, 49 P. 807; Hogsett v. Hanna, 41 N.M. 22, 63 P.2d 540, and Henkel v. Hood, 49 N.M. 45, 156 P.2d 790, are cited by defendants as establishing the true measure of damages to be as above stated.

The answer of plaintiff as administrator to this claim of error is fourfold in its compass, three of which are procedural in nature and one, the last, on the merits. First, they say the error, if any, takes on the character of invited error of which defendants cannot avail themselves. It is next claimed that, though previously objecting to the admission in evidence of these items upon identification by Hodgkins, administrator, testifying in his own behalf as plaintiff, when they were again introduced by Mountain States Mutual Casualty Company as a part of its case, there was no objection on defendants' part. And for a third answer, it is said that the court's instructions having failed to submit the question of these items as the basis for an award, there was no request by defendants that they be disregarded by the jury in arriving at its verdict.

Finally, the all embracing answer is advanced by plaintiff, that the items are recoverable under a proper interpretation of the language found in the death by wrongful act statute, disclaiming at the same time that the verdict carries an allowance on account of any of them. Then, as if to clinch the claim there is no prejudice, plaintiff's counsel offer a remittitur of the judgment in the aggregate amount of these items, to cure any possible error arising from their admission.

Treating plaintiff's objections to this claim of prejudice somewhat contrary to the order of their listing above, we think there may be some basis to the first and third contentions, none at all to the second and the fourth, touching the merits of the question, we find it unnecessary to pass upon. It is a fact that the defendants themselves brought the third party plaintiff, the highway department's workmen's compensation insurer, into the case. It is in its case alone that the questioned items could have undisputed relevancy. Plaintiff's counsel say the reason the insurer was brought in was one of strategy, to enable defense counsel to argue to the jury, as without challenge they assert was done, first that the insurer had paid all the bills which would no longer burden the heirs of deceased; and, next, the since the workmen's compensation act allowed only $12,000 for death, no more than that amount should be allowed in the case before them. Having thus received the benefits 'they expected from a joinder of the Insurance Company, they can not escape the consequences of their own act by now claiming that appellees could not introduce the items which the Mountain States Mutual Casualty Company were entitled to recover as payments on account of the death of Alick Morrison,' etc., assert counsel for the plaintiff. In other words, they say defendants are 'hoisted on their own petard.' This argument is not altogether without force. It is too well established for dispute that a party litigant may not invite error and then take advantage of it. Heisch v. J. L. Bell & Co., 11 N.M. 523, 70 P. 572; Gonzales v. Sharp & Fellows Contracting Co., 48 N.M. 528, 153 P.2d 676; Harper v. Harper, 54 N.M. 194, 217 P.2d 857.

It is also true, as suggested by counsel for plaintiffs that the court failed to submit the question of these items to the jury and, certaintly, no award in favor of either party plaintiff was made on account of them. The sole recovery carried in the verdict and in the judgment is the $45,000 general award in favor of the plaintiff as administrator. We do not understand defense counsel to claim, however, inclusion of such items in the verdict and judgment but rather that their admission may have inflicted such prejudice as to induce a larger award in the general verdict. It is with respect to this understanding of their position that we now address ourselves.

Conceding, as we think the record fairly discloses, that the point has been properly raised below and that defendant did finally object to the admission of these items, when offered by third party plaintiff, relating the objection to their initial offer by plaintiff as administrator, we think the defendants' insistence that they were prejudiced...