Johnson v. Zia Co., 6490
| Decision Date | 04 June 1959 |
| Docket Number | No. 6490,6490 |
| Citation | 1959 NMSC 46,340 P.2d 403,65 N.M. 463 |
| Parties | Ethel Pearl JOHNSON and Malcolm Lee Johnson, Appellees, v. ZIA COMPANY, a Corporation, Appellant. |
| Court | New Mexico Supreme Court |
Seth, Montgomery, Federici & Andrews, Santa Fe, for appellant.
O. Russell Jones, Jack Smith, Santa, Fe, for appellees.
The plaintiff Ethel Pearl Johnson recovered judgment against the defendant for the sum of $7,500 following a verdict rendered in her behalf by a jury on account of leg injuries suffered by her in Los Alamos when she stepped on the lid of a water meter and it tilted, letting her leg down into the meter box.
The premises on which the injury occurred had been rented to her husband under a written lease styled 'Family Housing Agreement' under which the renter would have been responsible for the maintenance and cleaning of the meter box had it not been for a bulletin put out to the renters of the Zia Company which stated it supplemented the family housing agreement (rental contract) and wherein it was stated, among other things:
'This bulletin supplements your family housing license agreement, spelling out examples of the types of repairs and maintenance for which you are responsible and examples of the types of repairs and maintenance for which the Zia Company will assume responsibility.'
It was also stated therein:
In addition we have the following testimony of a utility engineer of the defendant:
This, we think, effectively disposed of the contention of the defendant that it was the duty of Mrs. Johnson and her husband who, incidentally, was also a plaintiff but was denied any damages and did not appeal, to maintain the meter, and also the claim it was liable only for a willful injury to such claimed licensees. The relation of landlord and tenant existed between The Zia Company and the Johnsons and not that of licensor and licensee.
The defendant also operates the utilities in Los Alamos.
Mrs. Johnson had gone out in the yard to turn off a hydrant and stop the lawn watering theretofore started by her husband, when she stepped on the meter lid which was on her route to the hydrant and a tilting of the 32-pound lid resulted and her right leg went into the meter box as above stated.
Mr. Johnson testified that immediately after the accident he lifted the lid and examined the meter box and found the rim, which holds the lid to the meter box, filled with dirt up level with the top of the rim. The next day the Safety Supervisor of the defendant also inspected the meter box and testified that he found only a few spoonfuls of dirt and grass caked in the rim which he cleaned out with a knife but he did not say what size spoon he was talking about. It was for the jury to determine which of these witnesses it believed.
The meter had been read by an employee of the defendant seventeen days before the accident, and while he testified that he had cleaned out the rim when he lifted the lid and read the meter, and that such was a part of his regular duties, in view of the large amount of dirt which Johnson testified was present on the day of the accident, it would appear that the jury was well within its rights in refusing to believe the testimony of the meter reader on that point.
There was no testimony to the effect that the lid would not have tilted when Mrs. Johnson stepped on it had it not been for the dirt and grass on the rim but the case was tried on that theory, and we have her testimony that she had stepped on the meter lid a great many times during her five years' residence on the premises, and that it had never tilted until the time of the accident.
The defendant strongly contends that the verdict was based on speculation, conjecture and surmise, and that there is no substantial evidence in the record on which a verdict could validly be returned for Mrs. Johnson. We have no fault to find with the cases it cites holding a verdict so returned may not be sustained, but we do not agree with its appraisal of the record.
We are of the opinion and hold there is sufficient substantial evidence, coupled with reasonable inferences that may be drawn therefrom to sustain the verdict, and that the judgment should be affirmed unless there is reversible error on the other points urged by the defendant.
We have carefully considered all of the New Mexico landlord and tenant cases cited by the defendant, as well as its meter cases from other jurisdictions. In none of these cases had the landlord assumed the duty of looking after the meters or making repairs. Because of this feature none of the defendant's cases on the point the landlord was not responsible for the condition of the meter are controlling or persuasive here.
The defendant asserts that the trial court erred in refusing to give his requested instruction No. 4, which read:
'You are instructed that it was the duty of the plaintiffs under the 'Family Housing License' to maintain the grass and grounds upon the premises they were occupying and that if plaintiffs permitted grass to grow around or into the meter box so that the lid did not fit properly, and that this was a proximate contributing cause of plaintiff's, Ethel Pearl Johnson's, injuries, then your verdict must be for the defendant.'
The defendant bases its claimed right to this instruction on section 8 of the rental agreement or what is called the 'Family Housing License Agreement,' which reads:
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Wynne v. Pino
...Procedure (§ 21--1--1(15)(b), N.M.S.A.1953); Securities and Exchange Commission v. Rapp, 304 F.2d 786 (2d Cir.1962); Johnson v. Zia Co., 65 N.M. 463, 340 P.2d 403 (1959); Luvaul v. Holmes, 63 N.M. 193, 315 P.2d 837 (1957); Kaye v. Smitherman, 225 F.2d 583 (10th Cir.1955); Albers Milling Co.......