Svejcara v. Whitman

• Decision Date: 18 June 1971
• Docket Number: No. 558,558
• Citation: 1971 NMCA 93,82 N.M. 739,487 P.2d 167
• Parties: Michael SVEJCARA, Jr., and Matilda Svejcara, his wife, Plaintiffs- Appellees, Cross-Appellants, v. Lyman Jimmie WHITMAN, Defendant-Appellant, Cross-Appellee.
• Court: Court of Appeals of New Mexico

Page 167

487 P.2d 167

82 N.M. 739

Michael SVEJCARA, Jr., and Matilda Svejcara, his wife Plaintiffs- Appellees, Cross-Appellants, v. Lyman Jimmie WHITMAN, Defendant-Appellant, Cross-Appellee.

No. 558.

Court of Appeals of New Mexico.

June 18, 1971.

Richard L. Gerding, Tansey, Rosebrough, Roberts & Gerding, Farmington, for appellant.

James L. Brown, Farmington, for appellees.

OPINION

HENDLEY, Judge.

Defendant appeals an adverse decision whereby plaintiffs recovered for property damage, personal injuries and punitive damages. Defendant's appeal concerns (1) punitive damages, (2) punitive damages after a statutory violation fine was paid as being double jeopardy and (3) admission of defendant's liability policy for purpose of assessing punitive damages. Plaintiffs' cross-appeal concerns the measure of the punitive damage award in that it did not (1) make plaintiff whole or relate to the enormity of defendant's conduct, and (2) the award was grossly inadequate in view of the extreme anti-social implication of driving while intoxicated.

PUNITIVE DAMAGES.

Defendant contends that in the '* * * case at bar, the evidence produced was that of an ordinary intersectional accident.' We review the facts as established by the record.

Plaintiffs were traveling east on Broadway in Farmington at a speed of less than 10 miles per hour. They were approximately in the center of the intersection of Broadway and Orchard when they were struck by defendant's car. The impact of the collision spun plaintiffs' car almost 90 degrees and caused it to strike a light pole on the median. The force of the impact blew out the left rear tire, bent the left rear wheel, ruptured the gas tank, and bent the left rear door and fender for a total damage exceeding $1,000.00. Both plaintiffs received considerable personal injury some of which are permanent and disabling.

Defendant, prior to this trial, pleaded guilty to driving under the influence of intoxicating liquor and reckless driving. Defendant testified that at the time of the accident he was traveling at a speed of three miles per hour and also explained the reasons for pleading guilty.

The trial court found that 'The proximate cause of the accident was defendant's negligence, which under the circumstances amounted to wilful and wanton misconduct.'

Defendant's position is that his admission of guilt to driving while intoxicated and reckless driving without other evidence is insufficient to allow imposition of punitive damages. We decide adversely to defendant.

'* * * Section 70.26 of the Ordinances of the City of Farmington provides:

"Reckless Driving.

Any person who drives a vehicle carelessly and heedlessly in wilful or wanton disregard the rights of safety of others, and without due caution and circumspection, and at a speed or in a manner so as to endanger or be likely to endanger any person or property is guilty of reckless driving * * *"

This Ordinance is substantially the same as § 64--22--3, N.M.S.A.1953 (1969 Supp.).

Proof of a plea of guilty and conviction based thereon is admissible under circumstances where the same act is involved in both criminal and civil proceedings. Vargas v. Clauser, 62 N.M. 405, 311 P.2d 381 (1957). Such admission is substantial evidence of the truth of the matter and will support a finding. Ward v. Ares, 29 N.M. 418, 223 P. 766 (1924). The guilty plea supports a finding of wilful and wanton misconduct which is a prerequisite to an award of punitive damage.

Defendant states that he adequately explained away his admission. This is not for us to decide. We do not weigh the evidence or decide on the credibility of the witness. That is the function of the trial court. We only review the evidence in the light most favorable to the successful party to see whether there is substantial evidence to support the findings. Martinez v. Sears, Roebuck and Co., 81 N.M. 371, 467 P.2d 37 (Ct.App.1970).

Having found support in the record for wilful and wanton misconduct we need not consider defendant's cases and discussion on intoxication as a basis for awarding punitive damages. A finding of wilful and wanton misconduct will support an award of punitive damages. As stated in Bank of New Mexico v. Rice, 78 N.M. 170, 429 P.2d 368 (1967):

'* * * The rule is stated in the disjunctive in Stewart v. Potter, 44 N.M. 460, 104 P.2d 736 (1940), and Loucks v. Albuquerque National Bank, 76 N.M. 735, 418 P.2d 191 (1966). Loucks says:

'* * * Punitive or exemplary damages may be awarded only when the conduct of the wrongdoer may be said to be maliciously intentional, fraudulent, oppressive, or committed recklessly or with a wanton disregard of the plaintiffs' rights."

PUNITIVE DAMAGE AWARD AND STATUTORY VIOLATION FINE AS BEING DOUBLE JEOPARDY.

Defendant contends that the recent United States Supreme Court cases of Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970); Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970) changes the rule in Colbert v. Journal Publishing Co., 19 N.M. 156, 142 P. 146 (1914).

Colbert stated:

'As stated by the Supreme Court of Wyoming: 'Where the act is punishable criminally, the judgment for the act as an offense against the criminal laws is for the wrong done the public, while the damages awarded in a civil action, although punitive and inflicted by way of example and punishment, are for the offense committed wantonly or maliciously against an individual sufferer.' Cosgriff v. Miller, 10 Wyo. 190, at 236, 68 P. 206 at 217.'

Defendant contends that Ashe and Waller changed that rule when the doctrine of collateral estoppel was used in those criminal cases as a part of the Fifth Amendment's guarantee against double jeopardy.

Ashe defined collateral estoppel as it applied there as:

"Collateral Estoppel' is an awkward phrase, but it stands for an extremely important principle in our adversary system of justice. It means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. Although first developed in civil...