Hogsett v. Hanna.

• Citation: 41 N.M. 22,63 P.2d 540
• Decision Date: 19 November 1936
• Docket Number: No. 4126.,4126.
• Parties: HOGSETTv.HANNA.
• Court: Supreme Court of New Mexico

41 N.M. 22

63 P.2d 540

HOGSETT

v.HANNA.

No. 4126.

Supreme Court of New Mexico.

Nov. 19, 1936.Rehearing Denied Jan. 9, 1937.

Appeal from District Court, Bernalillo County; Joseph L. Dailey, Judge.

Action by Robert A. Hogsett, as administrator of the estate of Robert F. Hogsett, deceased, against Thomas W. Hanna. Judgment for the plaintiff, and defendant appeals.

Affirmed.

Defendant's motion to strike complaint is in effect demurrer to evidence, and admits truth of testimony, and every reasonable inference which may be drawn therefrom.

Hanna & Wilson and Wm. A. Brophy, all of Albuquerque, for appellant.

John F. Simms and H. O. Waggoner, both of Albuquerque, for appellee.

HUDSPETH, Justice.

This is an appeal from a judgment for $15,000 rendered in favor of plaintiff, as the administrator of the estate of Robert F. Hogsett, deceased, for the alleged negligence of the defendant and his servant resulting in the death of Dr. Hogsett.

Robert F. Hogsett, an able and well-educated physician, thirty years of age, who had a lucrative practice, died as the result of a fall from the floor of a garage through an unguarded floor door, down certain steps leading to the cellar containing a heating plant and used by a tenant of the garage as a storeroom. The defendant, appellant here, was the owner and landlord of said premises, including two offices occupied by unassociated parties. The garage was demised to William Keutter, a witness in this cause, by a written lease for the “garage located behind 217-219 West Gold Avenue, Albuquerque, New Mexico,” without further description of the premises. The cause was tried to the court without the intervention of a jury. At the close of plaintiff's case the defendant moved the court to dismiss the complaint. The motion was denied and the defendant stood upon his motion, and, after saving exceptions necessary for a review, defendant took this appeal. Several points are now pressed upon our notice as calling for a reversal of the judgment.

The court made findings of fact requested by plaintiff, as follows:

“7. The heating plant for the entire building was in the basement, and prior to and at the time of the accident the Defendant, Hanna, as the landlord of the premises, furnished a servant, to-wit, a janitor, and furnished the fuel to run the furnace, and caused the janitor to use the doorway going down to the basement during the winter months when heat was necessary in the building, and neither Kuetter, the tenant of the garage, nor any other tenant of the building had any control over the firing of the furnace nor over the janitor in his trips up and down the steps and through the door leading to the basement of the building.

“8. The Defendant's servant, the janitor, left the door in the floor of the garage propped open during the season when the furnace was being run in order to increase the draft of the furnace, and prior to the 24th of November, 1933, the door in the floor of the garage had been left open for a number of days, and William Kuetter, the tenant of the garage, did not disturb it.

“9. Kuetter, the tenant of the garage, at times went into the basement where he kept some tires stored, but he exercised no control over the furnace or heating plant nor over the janitor who came and went as the servant of the Defendant.”

“13. The janitor, servant of the Defendant, Hanna, was down in the basement before the accident and came out and left the door propped open, in which condition it remained until the time of the accident.

“14. There was no protective device or guard of any kind around the opening into the cellar.”

The court adopted the following conclusions requested by plaintiff.

“1. The Defendant, as the owner of the garage premises, having rented the same for use as a public garage, with the knowledge that customers of the garage did come and go therein about their business, and having retained control of the operation of the furnace in the basement and the right to have his janitor go in and out of the basement through the door in the floor of the garage, owed a duty to Dr. Hogsett, as a customer of the garage, to keep the door into the basement, flush with the floor, closed, which duty he negligently failed to perform.

“2. That the negligence of the Defendant's servant, the janitor, in failing to close and keep said door closed was a proximate cause of the death of Dr. Hogsett.

“3. That the Plaintiff is entitled to judgment against the Defendant, Thomas W. Hanna, for the value of the life of Dr. Hogsett in the amount found by the Court.”

At the request of defendant, the court made the following findings of fact:

“4. On the day of the accident described in the complaint, the garage was lighted with three 60 watt lights (and two 30 watt lights) hanging from the ceiling of said garage, the nearest light to the opening to the basement and hanging from the ceiling of said garage being about nineteen feet from said stairway; that there were three lights visible through three windows immediately south of said entrance to the basement, said windows through which the lights were visible being just above said basement opening and within two feet thereof; that at the time of the accident it was light around said entrance to the basement, and as light there as in any other part of the garage.

“5. That a few minutes prior to the time the deceased was found on the basement steps by William Kuetter, said deceased had stood in front of his car which was parked by the side of said stairway, and looked at the car and talked to his secretary, Miss Gibson, about the way the car had been polished; that said deceased had been in the garage taking his car in and out every day except Sundays for a period of six or eight months prior to the accident; that a few minutes before the accident and when last seen by William Kuetter, the deceased was walking sideways toward his car and toward the entrance to said basement; that deceased's car had been parked near the basement stairway before this time.”

“7. That the tenant, William Kuetter, was down in the basement some time during the day of the accident, and the last time he went down into the basement and came up he left the door open. The evidence does not disclose whether any person was down in the basement after said tenant Kuetter left the door open and prior to the accident.”

“10. On one occasion the defendant, Thomas W. Hanna, requested the tenant William Kuetter not to park cars on top of the door going into the basement so that the janitor could have access to the basement. During the winter months, except for a period of time during which the tenant kept all of the doors locked so that no one could have access to the garage room, extending over some period of time, the tenant, William Kuetter, left a door to the garage unlocked, and also kept his cars off of the door so that the door could be opened. That the tenant, William Kuetter, used the stairway going into the basement and kept certain supplies and tires stored in the basement for his use in connection with the operation of the garage.”

“13. That there was a coal chute outside of the garage occupied by said Kuetter, through which a janitor could enter the basement and have access to the furnace therein without using the basement steps in said garage room, and that said outside coal chute was used on occasions by the janitor (for that purpose when he had been locked out of the garage).”

And the court adopted the following conclusions of law at the request of defendant:

“2. Under the terms of the written lease between the defendant Hanna and the tenant Kuetter, the tenant Kuetter had the right to the exclusive control and possession of the entire premises including the door over the steps leading into the basement, and that said defendant Hanna had no right or privilege under said lease to enter said premises to repair or rehabilitate same or to change any of the structures in said premises without the consent of William Kuetter.”

“11. The evidence does not show any pecuniary damage to the father or mother of the deceased, they being the ones shown by the evidence to be entitled to the distribution of the proceeds of any judgment obtained on account of the death of Deceased.”

[1][2] The parties will be referred to as in the trial court. The defendant maintains that the trial court erred in ruling that an individual master was liable for the wrongful death caused by the tort of his servant, and cites the case of Don Yan v. Ah You, 4 Ariz. 109, 77 P. 618, and Texas cases. Neither the Arizona nor Texas statute is identical with the New Mexico act.

Our statute was originally passed as chapter 61 of the Laws of 1882 and was taken from the statutes of Missouri. Prior to the enactment of this statute by our Territorial Legislature, the case of Proctor v. Hannibal & St. J. Railway Company, 64 Mo. 112, had been decided by the court of last resort of that state. The court in that case said: “It manifestly appears from these provisions-for they apply to the injuries alluded to in section 3, as well as to those in section 2-that it must have been in mind and intention of the legislature only to confer upon the above classes of persons the right to sue in cases where the husband, wife of child could have sued, had not death been the result of the injury.”

The statute was again construed in Gray v. McDonald, 104 Mo. 303, 16 S.W. 398, 399, where it is stated: “It is next insisted by the appellant that this action is founded on section 2122 of the Revised Statutes of 1879, being the third section of the damage act; that by that section the person only who committed the act of homicide is liable in damages to the designated survivor of the deceased, and hence a demurrer to the evidence should have been sustained. The first branch of the proposition is conceded; but we do not agree to the second, in the sense in which it is pressed by appellant. The statute declares: ...