Rael v. F & S Co., Inc.

Decision Date11 October 1979
Docket NumberNo. 3486,3486
Citation612 P.2d 1318,1979 NMCA 128,94 N.M. 507
PartiesRamon N. RAEL, Individually and as Father and Next Friend of Everett Rael, a Minor, Plaintiff-Appellee, v. F & S COMPANY, INC., a/k/a Flaming Arrow Fireworks Company, a New Mexico Corporation, Defendant-Appellant, v. ONDA ENTERPRISES, LTD., Defendant-Appellee.
CourtCourt of Appeals of New Mexico
John J. Carmody, Jr., Kanter & Carmody, Albuquerque, for defendant-appellant
OPINION

ANDREWS, Judge.

Twelve year old Everett Rael was injured by a sudden explosion of a firework. His father filed this action against the fireworks supplier, Onda Enterprises, Ltd. (Onda), and the seller, F & S Company, Inc. (F & S). After the court dismissed cross- claims filed by both defendants in which each sought indemnity from the other, the jury returned a verdict for $7,000 for Everett and $339 for his father against both defendants jointly and severally. On appeal, F & S attacks the judgment on two unrelated grounds; first, it seeks indemnity from Onda, and second, it asserts that the court erred in granting an instruction permitting the award of damages for future pain and suffering. We have considered the facts and law applicable to the first issue and find it to be without merit. However, in our opinion, the court erred in granting an instruction permitting the award of damages for future pain and suffering because there was no evidence for such an award.

The firework which caused the injury was purchased from F & S, but had been manufactured by Gou Chien Fireworks Mfg. Co., Ltd., a Taiwan entity on which service was never effectuated, sold by Gou Chien to Onda, a Japanese corporation, and then sold to F & S, a New Mexico corporation.

In 1973, F & S did some testing of the fireworks received and found some of them to be defective. It then registered a complaint with Onda, which agreed to give F & S full credit, including freight and duties, for the defective batches and asked that the remainder of the batches be destroyed at Onda's expense. F & S agreed, and was given full credit for the batches about which it had complained. However, in July 1974, after taking some steps to remove the defective items from distribution, F & S sold the firework which injured Everett.

Indemnity

F & S argues that Onda, as supplier of the defective firework to F & S, is liable for all damages caused by the defective product, including the damages for which F & S was held liable to the plaintiff. While a rule has been adopted in some jurisdictions which allows indemnity in products liability cases, 1 it is not necessary for us to decide whether New Mexico should follow these authorities; F & S failed to present evidence which would support its cross-claim for indemnity.

The plaintiff's case was submitted to the jury on two theories, negligence and strict liability. F & S's cross-claim alleges only products liability as a basis of indemnity, but even if both theories had been properly alleged, neither theory is supported by the facts as presented at trial.

F & S cannot maintain an indemnity action against Onda on a negligence theory because, even if Onda was negligent, F & S was in pari delicto with Onda. In New Mexico, one tortfeasor may not recover indemnity from another when the two are in pari delicto. Rio Grande Gas Company v. Stahmann Farms, Inc., 80 N.M. 432, 457 P.2d 364 (1969); Lomorri v. Milner Hotels, 63 N.M. 342, 319 P.2d 949 (1957); Morris v. Uhl & Lopez Engineers, Inc., 442 F.2d 1247 (10th Cir. 1971), aff'd after remand, 468 F.2d 58 (10th Cir. 1972).

As stated in Morris v. Uhl & Lopez Engineers, Inc., supra :

The nature and scope of the right are solely a matter of the legal kind or class of negligence which has been involved in relation to the accident. Also, while it is possible for differences to exist in the volume or extent of negligence of the same kind between members of a particular class, this is of no relevance, since this would be a question only in relation to contribution and not to indemnity. Members of a class occupy the same legal position with respect to each other, or in other words are in pari delicto between themselves. 442 F.2d 1247 at 1254.

This is the same as saying that one party may not recover from the other where both are active tortfeasors. See Krametbauer v. McDonald, 44 N.M. 473, 104 P.2d 900 (1940). F & S's conduct was active despite the fact that its negligence arose mainly out of its failure to take remedial action to prevent the fireworks from getting into the hands of the public, and whether or not Onda's conduct was also actively negligent, a fact we need not decide here, F & S had no right of indemnity from Onda.

Switching to its products liability theory, F & S argues that responsibility should trace back to the originally responsible party since the manufacturer should not be able to escape liability merely because the injured party fortuitously selected the immediate seller as a defendant. We disagree. The same considerations of "active" and "passive" conduct discussed in regard to negligence pertain to a claim for indemnity based upon a products liability theory.

F & S asserts that this case is analogous to that in which an employer who is found liable to an injured person has a right to indemnity from his employee who negligently caused the injury, the employer's conduct being "passive" and the employee's being "active". This is an oversimplification. An employer has a right to indemnity solely because of his employee's negligence. But in most products situations where indemnity is allowed, the indemnitee's liability to the injured party is not based solely on the indemnitor's conduct. 3A Frumer & Friedman, Products Liability (1978) § 44.02(1). A retailer is not "secondarily" liable because he is a retailer he is secondarily liable if his conduct was passive and that of his supplier was active; if the conduct of both was active then the liability of both is primary and indemnity is not allowed. See Oregon Farm Bureau Insurance Company v. E. L. Caldwell & Sons, Inc., 306 F.Supp. 835 (D.Or.1969); 3A Frumer & Friedman, Products Liability (1978) § 44.02(3)(b). Thus, it is not one's place in the chain of supply which allows him a right to indemnity; rather it is his conduct in relation to the conduct of others in the chain which allows or disallows him the right to indemnity. See Wallner v. Kitchens of Sara Lee, Inc., 419 F.2d 1028 (7th Cir. 1969); Caruloff v. Emerson Radio & Phonograph Corporation, 445 F.2d 873 (2d Cir. 1971). As stated above, F & S was an active tortfeasor, and as such is precluded from recovering indemnity from Onda.

We have considered other arguments presented by F & S in regard to this issue and find them similarly unpersuasive.

Future Pain and Suffering

Next, F & S argues that the trial court erred in granting an instruction which permitted the award of damages for future pain and suffering. While it is clear that under New Mexico law damages can be recovered for mental pain and suffering as a consequence of physical injuries, Rutledge v. Johnson, 81 N.M. 217, 465 P.2d 274 (1970), F & S asserts that there was no evidence that any future pain and suffering would exist, nor was there any evidence as to the extent or duration of the future pain and suffering. Thus, whether or not the evidence supports the use of U.J.I. 14.5, is the question presented here. That instruction provides:

Damages: Pain and suffering, past and future.

The pain and suffering experienced (and reasonably certain to be experienced in the future) as a result of the injury.

The guide for you to follow in determining compensation for pain and suffering, if any, is the enlightened conscience of impartial jurors acting under the sanctity of your oath to compensate the plaintiffs with fairness to all parties to the action. (Emphasis added.)

As summarized by plaintiff from the evidence presented at trial, it is quite apparent that the plaintiff had a permanent scar on his eye, that he had powder particles buried underneath the surface of his cornea, that it is necessary that he have regular checkups because of the increased risk of infection, and that there is a possibility of infection occurring as much as ten or fifteen years in the future; and that prior to this accident his eyes were essentially healthy except for a slight nearsightedness, whereas at the time of trial he had permanent scars over the cornea of his eyes and his uncorrected visual acuity in each eye was 20-50 or 20-60. It is also clear that he had suffered headaches periodically since the time of the accident and was continuing to suffer them up until the time of trial. However, neither this evidence, nor the assertion, without proof, that Everett had become "extremely frightened" of fireworks is sufficient to establish that future pain and suffering would exist as a result of this accident.

Damages based on surmise, conjecture or speculation cannot be sustained. Damages must be proved with reasonable certainty. Hebenstreit v. Atchison, Topeka & Santa Fe Ry. Co., 65 N.M. 301, 336 P.2d 1057 (1959); Winder v. Martinez, 88 N.M. 622, 545 P.2d 88 (Ct.App.), cert. denied 89 N.M. 6, 546 P.2d 71 (1976). There is no exception to the above rule for future damages. The ultimate fact which the plaintiff has the burden of proving is future damages reasonably certain to occur as a result of the original injury. Carpenter v. Nelson, 257 Minn. 424, 101 N.W.2d 918 (1960); 22 Am.Jur.2d, Damages § 106 (1965).

The trial in this case took place approximately three and one-half years after the accident. The only evidence presented as to pain in plaintiff's eye was that he suffered for a period of less than two months following the accident. His mother testified that he was no longer suffering at the time of...

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