Tauch v. Ferguson-Steere Motor Co.

• Citation: 1957 NMSC 39,62 N.M. 429,312 P.2d 83
• Decision Date: 14 May 1957
• Docket Number: No. 6156,5847,FERGUSON-STEERE,5817,5959,6156
• Parties: Grace H. TAUCH, Ancillary Executrix of the Estate of John Stanton Meyer, deceased, Plaintiff, Consolidated Lloyds, a corporation, Intervenor, James Levi Cunningham, Ancillary Administrator of the Estate of Stewart James Cunningham, deceased, Plaintiff, Henry W. Ryan, Ancillary Administrator of the Estate of Clyde Dale Brittan, deceased, Plaintiff, Appellees, v.MOTOR COMPANY, a corporation, Defendant, Appellant.
• Court: Supreme Court of New Mexico

Page 83

312 P.2d 83

62 N.M. 429

Grace H. TAUCH, Ancillary Executrix of the Estate of John

Stanton Meyer, deceased, Plaintiff,

Consolidated Lloyds, a corporation, Intervenor,

James Levi Cunningham, Ancillary Administrator of the Estate

of Stewart James Cunningham, deceased, Plaintiff, Henry W. Ryan, Ancillary Administrator of the Estate of Clyde Dale Brittan, deceased, Plaintiff, Appellees, v. FERGUSON-STEERE MOTOR COMPANY, a corporation, Defendant,

Appellant.

No. 6156, 5817, 5847, 5959.

Supreme Court of New Mexico.

May 14, 1957.

Rehearing Denied June 20, 1957.

Merritt W. Oldaker, Roy F. Miller, Jr., William H. Oldaker, Albuquerque, for appellant.

John H. Lawless, Jr., Alamogordo, Andress, Lipscomb, Peticolas & Fisk, El Paso, Tex., for appellees.

SADLER, Justice.

We are asked to decide whether the personal representative of a decedent, suffering wrongful death within the purview of 1953 Comp., Sec. 22-20-4, who was over 21 years of age at the time of his death, unmarried, and left surviving him no wife, child or children, or other named and described dependent person (kindred) enumerated in said section, may recover the stipulated damage therein authorized.

The accident out of which arose the three causes of action involved on this appeal occurred in Otero County, New Mixico, on November 22, 1953, in a collision between a tractor-trailer combination owned and operated by defendant (appellant) Ferguson-Steere Motor Company, a corporation, and a Ford convertible occupied by the three decedents and another young man all of whom suffered instant death in the collision.

The four young men in the convertible had been skiing at Ruidoso and were en route back to El Paso via Alamogordo when the collision took place, on Highway No. 70, as the Ford was ascending and the tractor-trailer descending the steep and winding grade into what is known as Dark Canyon, about 8 miles south of Ruidoso. The condition of the road was hazardous at the time, not alone because of the sharp grade and curves but, as well, due to the presence of iced conditions on the highway. With this brief background, we will add mention of the fact that Ferguson-Steere Motor Company, at the time of the accident, was a common carrier within the meaning of the statute mentioned.

Accordingly, we shall proceed with a discussion of the question posed in the opening paragraph of this opinion. As may be inferred from the three separate docket numbers given above, the appeals are consolidated before us for consideration and decision.

The statute under which recovery is sought is 1953 Comp., Sec. 22-20-4. It reads, so far as material to our decision, as follows:

'Whenever any person shall die from any injury resulting from, or occasioned by the negligence, unskillfulness or criminal intent of any officer, agent, servant or employee, whilst running, conducting or managing any locomotive, car, or train of cars, or of any driver of any state (stage) coach or other public conveyance, while in charge of the same as driver; * * * the corporation, * * * in whose employ any such * * * driver, shall be at the time such injury was committed, or who owns any such * * * public conveyance, at the time any injury is received, * * * shall forfeit and pay for every person or passenger so dying, the sum of ten thousand dollars ($10,000), which may be sued and recovered; first, by the husband or wife of the deceased; or second, if there be no husband or wife, or if he or she fails to sue within six (6) months after such death then by the minor child or children of the deceased; or third, if such deceased be a minor and unmarried, then by the father and mother; or fourth, if the deceased be over twenty-one (21) years of age and unmarried, by a dependent father or mother or dependent brother or sister, who may join in the suit; and each shall have an equal interest in the judgment; or if either of them be dead, then by the survivor. In the event there are no such persons entitled to sue or in the event suit is not brought by any such persons within nine (9) months after such death, suit may be brought by the personal representative or representatives of such deceased person.' (Emphasis added.)

It should be stated at this point that the foregoing statute was enacted originally as section one (1) of L.1882, c. 61. The first amendment enacted touching it was by L.1931, c. 19, by which the amount of recovery was raised from $5,000 to $7,500; and, in listing the beneficiaries who could sue for any recovery there was added the italicized portion of the following:

'* * * or fourth, if the deceased be over twenty-one years of age and unmarried, by a dependent father or mother or dependent brother or sister, who may join in the suit; and each shall have an equal interest in the judgment; or if either of them be dead, then by the survivor.'

So this section of the statute stood, as originally enacted, from 1882 until 1931, when the amendment just set out was added. Then, some sixteen years later, the second pertinent amendment was added as L.1947, c. 125, Sec. 1. It raised the amount of recovery authorized to $10,000 and otherwise as is italicized above in the copy of material portions of the section discussed, reading as follows:

'In the event there are no such persons entitled to sue or in the event suit is not brought by any such persons within nine (9) months after such death, suit may be brought by the personal representative or representatives of such deceased person.'

Thus it is that the statute construed, under which recovery was had in the three actions whose judgments are before us for review on these appeals, consolidated, is in the form appearing as Sec. 22-20-4, supra. The amendments mentioned are carried forward into the section as it appears in the 1953 Compilation. So much for a historical treatment of the death by wrongful act statute as applied to common carriers. Counsel for defendant is pleased to refer to it as the 'special' statute to distinguish it from the companion statute enacted originally as sections 2 and 3 of the same act, L.1882, c. 61, Secs. 2 and 3 (1953 Comp., Secs. 22-20-1 and 22-20-3), giving a right of action for wrongful death caused by another, not a common carrier, which the same counsel seem pleased to refer to as the 'general' wrongful death statute.

Keeping in mind that this so-called 'general' statute was enacted as a part or parcel of the same act imposing liability for wrongful death caused by a common carrier, it becomes important to examine these statutes, being separate sections of the same act, which created the cause of action, or, better said, right of survivorship, first mentioned. Sections 2 and 3 of L.1882, chapter 61, first provide for the survivorship of the cause of action where the death by wrongful act was caused by an individual, or by another than a common carrier. As originally enacted the sections read:

'Sec. 2. Whenever the death of the person shall be caused by a wrongful act, neglect or default of another, and the act or neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who, or the corporation which would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured.

'Sec. 3. All damages accruing under the last preceding section shall be sued for and recovered by the same parties and in the same manner as provided in section 1 of this act, and in every such action the jury may give such damages, not exceeding five thousand dollars, as they may deem fair and just, with reference to the necessary injury resulting from such death, to the surviving parties, who may be entitled to sue, and also having regard to the mitigating or aggravating circumstances attending such wrongful act, neglect or default.'

After the enactment of L.1882, c. 61, embracing the two sections just set out, and as well, section 1 providing survivorship of causes of action for death by wrongful act by common carriers, the legislature amended both sections 2 and 3 of L.1882, c. 61. The only amendment of section 2 was by rendering the act applicable 'although such (wrongful) death shall have been caused under such circumstances as amount in law to a felony,' thus placing that section in the exact form we now find it, 1953 Comp., Sec. 22-20-1.

Section 3 of L.1882, c. 61, was amended in much more extensive fashion, however, by L.1891, c. 49. It changed entirely the amount recoverable under the act which previously imposed as a maximum amount the sum of $5,000. In addition, it authorized suit in the name of the personal representative of decedent, exempted the amount of any recovery from liability for debts of decedent, provided he left any one of several named kindred him surviving, then to be distributed to named kindred as a class in varying contingencies; and, finally, if none of the named kin were found, 'then the proceeds of such judgment shall be disposed of in the manner authorized by law for the disposition of the personal property of deceased persons.'

All of the amendments to sections 2 and 3 of L.1882, c. 61, next above mentioned, were accomplished by L.1891, c. 49, Secs. 1 and 2, save and except provision by L.1939, c. 105, Sec. 1, for a further alternative contingency, namely:

'* * * if such deceased be a minor, childless and unmarried, then to the father and mother, who shall have an equal interest in the judgment, or if either of them be dead, then to the survivor; if there be no father, mother, husband, wife, child, or grandchild,' then, etc.

The current form of L.1882, c. 61, Sec. 3, with the amendments noted carried forward, is to be found as 1953 Comp., Sec. 22-20-3. It will be noted that these statutes, all as amended, supra, were in effect in the form found in 1953 Compilation at the time of the...