Krametbauer v. Sumner

Decision Date22 July 1940
Docket NumberNo. 4520.,4520.
Citation104 P.2d 900,44 N.M. 473
CourtNew Mexico Supreme Court


Appeal from District Court, Luna County; George W. Hay, Judge.

Actions by Edward Krametbauer, administrator of the estate of Eugene E. Krametbauer, deceased, against L. D. McDonald and others, and against Gordon Sumner, to recover damages for the alleged negligent death of child who was killed by an automobile, wherein L. D. McDonald and others by cross-complaint sought recovery against Gordon Sumner. The actions were consolidated in the district court for purpose of trial and in the Supreme Court for disposition on appeal. Judgment for plaintiff, and defendants appeal.


In action for death of child who was struck by automobile after alighting from school bus, where bus driver stopped bus with all four wheels on the pavement and discharged child at a dangerous place in the highway, the bus driver, owner, and surety company were not entitled to judgment over against motorist on theory that bus driver was only passively negligent, and that motorist was actively negligent. Comp.St.1929, § 76-101.

Seth & Montgomery, of Santa Fe, and E. C. Wade and A. R. Grambling, both of El Paso, Tex., for appellants McDonald and Insurance Co.

W. C. Whatley, of Las Cruces, for appellant Sumner.Sherman & Sherman, of Deming, for appellee.

BRICE, Justice.

These actions were consolidated in the district court for the purpose of trial, and in this court for disposition on appeal. They were instituted by the deceased's representative to recover damages for the alleged negligent death of a child six and a half years old, killed by collision with an automobile driven on the public highway by appellant Gordon Sumner, after alighting from a school bus owned by appellant, L. D. McDonald and driven by appellant Edna S. McDonald. It is charged that his death was proximately caused by the negligence of each of the appellants, Gordon Sumner and Edna S. McDonald.

The trial court found as facts: “That the death of said Eugene E. Krametbauer was due to the concurrent negligence of and lack of care of said Edna S. McDonald, the driver of the school bus, and Gordon Sumner, the driver of the automobile belonging to the New Mexico State Highway Department.”

The specific acts of negligence of each of the appellants Edna S. McDonald and Sumner are set out in detail in Finding No. 12. Neither of these findings is attacked by any of the appellants, and therefore are binding on this court.

From these findings, as well as from a review of the testimony, we conclude that both the driver of the school bus and the driver of the car that struck and killed the child were negligent, and that the negligence of each was a proximate cause of the death of the child. A judgment was entered in the consolidated cases, as follows: “That the plaintiff have judgment against the defendants, L. D. McDonald, Edna S. McDonald, Central Surety & Insurance Corporation and Gordon Sumner in the sum of Six Thousand One Hundred Thirteen and 42/100ths Dollars ($6,113.42), and that the said limit of liability for the Central Surety & Insurance Corporation, in accordance with its contract, be limited to the sum of Five Thousand Dollars ($5,000.00).”

This action was originally brought against the appellants McDonald, and thereafter appellee moved for permission to amend his complaint and to make the surety company a party defendant. This motion was resisted by appellants McDonald by an objection in the form of an answer to the motion, in which it was alleged in substance that the surety company was neither a necessary nor a proper party defendant, in “that both the liability to pay and the liability to be sued under the terms of said insurance contract, were postponed until a final judgment shall have been obtained against these defendants (McDonalds), and that it would deprive them of a fair and impartial jury trial.

The record does not indicate that any testimony was taken on the motion or the traverse. An order was entered granting plaintiff's motion, whereupon an amended complaint was filed adding the surety company as a defendant.

The allegations of the amended complaint charge that the defendant surety company became “directly and primarily liable to any person, including any pupil transported by said defendants in said school bus, for injury or death, and became and was and is subject to suit by any person injured or killed through the negligent operation of said school bus, either jointly or with the said school bus owners and operators or severally.” Thereafter the defendants McDonald moved to strike from the suit the surety company as a party defendant, upon substantially the same grounds alleged in the objections to the filing of the amendment. This motion was overruled, without presentation of evidence of the alleged facts.

It is asserted that the court erred in permitting the filing of the amended complaint making the surety company a party defendant, and in refusing to strike the surety company as a defendant from the suit after the amended complaint was filed.

It is a general rule that only the person wrongfully joined as a party to an action is authorized to object to the misjoinder.

“When a legal action is brought against two or more defendants upon an alleged joint liability, even though based upon a joint contract, and one or more of them are, so far as they are individually concerned, properly sued, but the others are improperly united, the defendants properly sued have no cause of complaint whatsoever, in any form, on account of the misjoinder; they cannot demur or answer for defect of parties, because there is no ‘defect;’ they cannot demur generally for want of sufficient facts, because sufficient facts are averred as against them; they cannot demur or answer on account of this misjoinder, because that particular ground of objection is not provided for by the codes.” Pomeroy's Code Remedies, 5th Ed., Section 191.

Also see: Palmer v. Town of Blaine, 115 Me. 287, 98 A. 753; Southern Surety Co. v. W. E. Callahan Const. Co., Tex. Civ.App., 283 S.W. 1098; Kelly v. Carmichael, 217 Ala. 534, 117 So. 67; Abrahams v. Abrahams, 219 Ala. 533, 122 So. 625; Reid v. Hennessy Co., 45 Mont. 462, 124 P. 273; Okmulgee Supply Co. v. Ratman, 144 Okl. 293, 291 P. 1.

We stated in Post v. Miles, 7 N.M. 317, 34 P. 586, 590 (cited with approval in Armijo v. Mountain Elec. Co., 11 N.M. 235, 67 P. 726): “Whether the interest of the minors was or was not, under any circumstances, chargeable with a lien, they were, if not necessary, at least proper, parties to a proceeding that sought to subject to a lien property in which they had an interest. But, aside from the question as to whether they were proper parties, this defect in the bill, if defect it was, could be taken advantage of only by them, or by their guardian for them. It did not rest with the adult defendants to complain of the misjoinder. Such misjoinder did not in any manner affect their rights, or embarrass them in their defense. It is a well-settled rule of equity pleading that a misjoinder of parties as defendants can be taken advantage of only by the parties improperly joined, or, at most, by such parties as may be injuriously affected by such misjoinder.”

One of the appellants McDonald's grounds of objection to the amendment was that it would deprive them of a fair and impartial jury trial. That was merely an allegation in opposition to the motion. There is nothing in the record to indicate that said appellants desired a jury trial or that they were deprived of one.

The case was tried to the court, and if we assume that the fact of the existence of the policy might have influenced the trial court's judgment; the answer is that he knew before the trial of the surety company's liability, and that it would be called upon to pay the judgment whether or not suit against the surety company was postponed until after judgment against appellants McDonald.

In any event we are not impressed with the suggestion that jurors are so densely ignorant that at least one out of 12 would not have the knowledge that a public carrier of passengers including those transporting school children are protected by liability insurance. McLaughlin v. Shelton, etc., Co., 139 Wash. 253, 246 P. 575; Milliron v. Dittman, 180 Cal. 443, 181 P. 779; Benn v. Camel City Coach Company, 162 S.C. 44, 160 S.E. 135.

The trial court did not err in sustaining the motion to amend the complaint.

After the surety company was made a party defendant, it attacked the amended complaint by demurrer upon the ground that it was not a necessary or proper party to the suit, in that the policy sued on “is a policy of liability insurance, and provides among other things: ‘No action shall lie against the Company unless, as a condition precedent thereto, the Insured shall have fully complied with all the conditions hereof, nor until the amount of the Insured's obligation to pay shall have been finally determined either by judgment against the Insured, after actual trial or by written agreement of the Insured, the claimant and the Company, ***”’ And, “that the amount of the Insured's obligation to pay has not been finally determined by judgment after actual trial, or by written agreement of the Insured, the claimant and the Company.”

The defect (if it is a defect) in the complaint did not appear upon the face thereof, and therefore it was not subject to attack by demurrer on that ground. Territory ex rel. Baca v. Baca, 18 N.M. 63, 134 P. 212. The complaint charges that the surety company was primarily liable on the policy of insurance and no mention is made of the “no action” clause, if in fact it was a binding condition of the policy. Error if any, was waived by answering over. Baca v. Baca, supra. But in any event, the court did not err in overruling the demurrer as “misjoinder of parties is not a ground of demurrer under...

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