Trujillo v. Romero

• Decision Date: 15 February 1971
• Docket Number: No. 9046,9046
• Citation: 82 N.M. 301,1971 NMSC 20,481 P.2d 89
• Parties: Felix TRUJILLO, Plaintiff-Appellant and Cross-Appellee, v. Julius ROMERO, d/b/a Julius Car Sales and Service, Defendant-Appellee and Cross-Appellant.
• Court: New Mexico Supreme Court

Page 89

481 P.2d 89

82 N.M. 301

Felix TRUJILLO, Plaintiff-Appellant and Cross-Appellee, v. Julius ROMERO, d/b/a Julius Car Sales and Service,

Defendant-Appellee and Cross-Appellant.

No. 9046.

Supreme Court of New Mexico.

Feb. 15, 1971.

Donald A. Martinez, Las Vegas, for appellant

Roberto L. Armijo, Las Vegas, for appellee.

OPINION

STEPHENSON, Justice.

Plaintiff-Appellant (Trujillo) brought this replevin suit against Defendant-Appellee (Romero) seeking possession of an eight-wheeled-tandem trailer and damages for having been wrongfully deprived of its possession and use. Romero answered and counterclaimed for $186.16 as towing charges for the trailer and a tractor, claiming a lien on the trailer to secure payment. The trial court, sitting without a jury, found the issues in favor of Romero, but reduced his claim to $159.00 and ordered each party to pay his respective costs.

Trujillo appealed from the judgment and Romero cross-appealed from the court's failure to make an award to him of attorney's fees.

Trujillo first asserts that Romero failed to prove that he held a certificate of convenience and necessity from the Corporation Commission, or its 'class' if he held one. New Mexico statutes require that Romero be certificated in order for him to lawfully furnish wrecker service. Sections 64--27--4 and 64--27--8, N.M.S.A., 1953

Romero's counterclaim alleged that at all

Romero's counterclaim allged that at all times material to this lawsuit, he was engaged in the wrecker service business 'operating under License No. 3662 of the State Corporation Commission * * *.' This allegation was admitted and no proof was therefore required. License No. 3662 is not described in the pleadings as to its 'class,' nor is it alleged that the towing service in question was covered thereby. We believe the fair intendment of the pleadings to be that Trujillo had a certificate of the proper class. The pleadings were so treated by the trial court. There was no evidence during the trial that Romero did not hold a certificate which covered the services rendered.

But, says Trujillo, the evidence at the trial drew the class of license into question, and Romero should have then domonstrated that he was properly certificated, which he failed to do.

It is true that a good deal of testimony was elicited concerning 'classes,' but in regard to the rate that should be applied, rather than in relation to types of licenses. That testimony could have been reasonably so understood in both this court and the trial court. The rates increase as the weight of the towed vehicle increases, and a point of controversy was whether the towed tractor and trailer combined weighed slightly less than 25,000 pounds or slightly more. If the former, the lower Class C rate would apply rather than the higher Class D rate applied by the trial court.

Because the class or type of Romero's certificate was not directly and specifically raised in the trial court, this issue will not be considered here. Perry v. Staver, 81 N.M. 766, 473 P.2d 380 (Ct.App.); Barnett v. CAL M, Inc., 79 N.M. 553, 445 P.2d 974; Supreme Court Rule 20(1) (§ 21--2--1(20)(1), N.M.S.A., 1953 Comp.) This settled principle, coupled with Trujillo's admissions in his pleadings regarding Romero's certification which we have previously described, impels us to resolve issues relative to Romero's certification in his favor.

Trujillo next asserts that the state police officer who called for Romero's wrecker service lacked authority to do so. It is undisputed that Trujillo's tractor-trailer was involved in a collision and came to rest in the highway headed away from Las Vegas, about fifteen miles distant, and a state police officer summoned Romero to the scene to tow the vehicle away, which he did. Other pertinent facts are less clear. The trial court found that the state police officer authorized Romero 'to tow Plaintiff's Tractor-Trailer from the scene of the collision.' Thus the trial court has resolved the conflicting testimony by its findings. The fact that there may have been evidence which would have supported different findings does not require a reversal for failure to adopt Trujillo's requested finding. Measday v. Sweazea, 78 N.M. 781, 438 P.2d 525 (Ct.App.); Varney v. Taylor, 77 N.M. 28, 419 P.2d 234. And certainly there was substantial evidence to support the court's finding that the officer authorized the tow. It is fundamental that if there is substantial evidence in the record to support a finding, we are bound therey. In deciding whether a finding has substantial support, we must view the evidence in the light most favorable to support the finding, and any evidence unfavorable to the finding will not be considered. Kerr v. Schwartz, 82 N.M. 63, 475 P.2d 457; Jones v. Anderson, 81 N.M. 423, 467 P.2d 995.

Although the court made no specific finding as to the destination of the tow authorized by the officer, it is, in support of the judgment, easily inferred to be Las Vegas from the court's award based on mileage to that town. Kerr v. Schwartz, supra; Jones v. Anderson, supra.

In construing and applying the statutes to which we now turn, we will consider that the police officer and no one else directed the tow be made from the point of the collision to Law Vegas.

Sections 64--18--49 and 64--18--50(a), N.M.S.A., 1953 Comp. are not, under the circumstances, applicable to this case, because the Trujillo vehicle was to disabled as to not be in violation of the former, and the latter does not in terms authorize the officer to call a wrecker. We agree with Trujillo that the officer's authority is not to be found in these two statutes.

The same is not true, however, of § 64--18--50(c), N.M.S.A., 1953 Comp. That section provides:

'No driver of any vehicle shall permit said vehicle to remain unattended on or adjacent to any public road, highway, or highway right of way of the state for a longer period than 24 hours without notifying the state police or sheriff's office of the county where said vehicle is parked or said vehicle shall be deemed abandoned. The state police or sheriff's officer may cause all such abandoned vehicles to be removed and the owner of the vehicle shall be required to pay all costs incident to the removal of said vehicle, Provided that wrecked vehicles may be removed at any time and without regard to the 24 hour period hereinbefore provided.'

Trujillo asserts that the quoted section confers no authority on the police officer in this case because the vehicle was not left 'unattended.' He is contending that the provisions of the first sentence of the quoted statute concerning abandoned vehicles being 'unattended' as a prerequisite for peace officers being authorized to see to their removal by the provisions of the second sentence, also restrict the authority of such officers under the proviso relating to wrecked vehicles. We do not agree. It is true that the evidence was to the effect that Trujillo 'left a boy there, flagging there after the wreck' while he went for help. There is no indication that the vehicle was ever left unattended. The trial court's findings are silent on this subject.

Violation of the...