Johnson v. Citizens Cas. Co. of N.Y.

• Decision Date: 04 February 1958
• Docket Number: No. 6263,6263
• Citation: 321 P.2d 640,63 N.M. 460,1958 NMSC 23
• Parties: Glenn M. JOHNSON and Faye Pursley Johnson, his wife, Plaintiffs-Appellants and Counter-Defendants, Cross-Appellees, v. CITIZENS CASUALTY COMPANY OF NEW YORK and Bygel G M C Truck and Tractor Company, a Corporation, Defendants-Appellees and Counter-Claimants, Cross-Appellants.
• Court: New Mexico Supreme Court

Page 640

321 P.2d 640

63 N.M. 460

Glenn M. JOHNSON and Faye Pursley Johnson, his wife Plaintiffs-Appellants and Counter-Defendants Cross-Appellees, v. CITIZENS CASUALTY COMPANY OF NEW YORK and Bygel G M C Truck and Tractor Company, a Corporation Defendants-Appellees and Counter-Claimants Cross-Appellants.

No. 6263.

Supreme Court of New Mexico.

Feb. 4, 1958.

Robert Hoath LaFollette, Albuquerque, for appellants.

Gilbert, White & Gilbert, Santa Fe, for appellees.

LUJAN, Chief Justice.

The plaintiffs claim: That on April 13, 1953, the plaintiff, Glenn M. Johnson, had a collision with his Mack truck, thereby damaging the engine, undercarriage and other parts to the extent and degree that the same was inoperatable; that the defendant, Casualty Citizens Company of New York, insured plaintiffs for collision and upset in the sum of $14,000, less $250 deductible, covering their Mack truck; that said insurance company, through its agent, Homer D. Bray, caused the same to be delivered to the defendant, Bygel GMC Truck & Tractor Company, a corporation, for repairs; that plaintiff, Glenn M. Johnson, on said occasion informed and advised said insurance company that the Bygel Company, in his opinion was not equipped nor had the necessary skill or knowledge to repair said Mack truck; that notwithstanding said protest the same was nevertheless delivered to the Bygel Company for repairs; that the Bygel Company undertook to repair said truck and warranted that the same would be repaired and redelivered to plaintiffs within a reasonable time in good operating condition; that the Bygel Company by its inability and negligence did not properly repair said truck whereby the same could be utilized; that as a proximate result of said negligence plaintiffs have been damaged; that Bygel Company breached their contract of warranty by failure to complete repairs within a reasonable time and to return said truck in a good mechanical condition. Plaintiffs further claim that the defendant, Citizens Casualty Company, also breached their contract of insurance by failure to authorize and to pay for repairs reasonably necessary to replace the truck in good mechanical condition.

The defendants denied plaintiffs' claim, except, the Citizens Casualty Company admits that it issued to the plaintiffs a policy of insurance under which it assumed the obligations specified therein, and that it delivered to the Bygel Company said truck for the making of certain specified repairs and that the said Bygel Company undertook to make the repairs which were specified. The Citizens Casualty Company counterclaimed and alleged: 'That on or about the 6th day of June, 1953, the counterdefendant, G. M. Johnson, for a valuable consideration, made, executed and delivered to this counterclaimant his promissory note in the principal sum of $733.00, payable seven months after date. That said note was due and payable and prayed judgment therefor.'

The cause came on for trial to a jury on June 13, 1955, which resulted in a verdict in favor of the plaintiffs. Thereafter, and on October 18, 1955, on motion made by the defendants, the district court disapproved vacated and set aside the verdict of the jury and granted defendants a new trial.

On February 21, 1956, after the first trial had been held and a new trial ordered a pre-trial conference order was made and entered by Judge McManus, as follows:

'3. With respect to the proper measure of damages in this case, the Court expressed its opinion on the basis of the evidence adduced at the prior trial, and It Is Now Ordered:

'(a) No question of damages involving alleged loss of use, possession or ownership of the truck tractor combination not involved in the accident will be submitted to the jury.

'(b) * * *. The Court will rule, however, and It Is Ordered, that if damages for loss of equipment be allowed, only the Mack tractor involved in the collision will be considered; that if loss of use or profits or either should be allowed, it will only be such as may be shown by the evidence respecting the use of the said Mack tractor, plus the appurtenant trailer, to the extent only that it is shown to have been substantially impossible for plaintiff to use it on account of the damage to the said tractor; and that in any event, loss of use or profits or loss of equipment value will not both be allowed.'

This order was endorsed by counsel for plaintiffs as follows: 'Submitted: W. Peter McAtee.' No objections or exceptions were interposed to the making and entering of this order, hence it became the law of the case.

The correctness of Judge McManus' pre-trial order is not before us for review, since neither the evidence on the previous trial which was considered by him in connection with the making and entering the same, nor the proceedings on the pre-trial conference are included in the transcript upon this appeal. See, Carroll v. Bunt, 50 N.M. 127, 172 P.2d 116.

In settling the bill of exceptions, Judge Reidy certified:

'That the record on appeal in this cause does not include the testimony of the first trial of this cause, * * * nor any of the testimony or arguments of the...