Varney v. Taylor

• Decision Date: 02 May 1966
• Docket Number: No. 7704,7704
• Citation: 1966 NMSC 80,419 P.2d 234,77 N.M. 28
• Parties: J. R. VARNEY, Administrator of the Estate of Jackie Raymond Varney, Deceased, Plaintiff-Appellee and Cross-Appellant, v. Dennis Leo TAYLOR and Arrow Gas Service Company, Defendants-Appellants and Cross-Appellees.
• Court: New Mexico Supreme Court

Page 234

419 P.2d 234

77 N.M. 28

J. R. VARNEY, Administrator of the Estate of Jackie Raymond Varney, Deceased, Plaintiff-Appellee and Cross-Appellant, v. Dennis Leo TAYLOR and Arrow Gas Service Company Defendants-Appellants and Cross-Appellees.

No. 7704.

Supreme Court of New Mexico.

May 2, 1966.

Rehearing Denied Oct. 24, 1966.

James L. Brown, Farmington, for appellee.

White & Musgrove, Farmington, for Dennis Leo Taylor.

Botts, Botts & Mauney, Gerald R. Cole, Albuquerque, for Arrow Gas service co.

NOBLE, Justice.

This action for the wrongful death of J. R. Varney arose from a head-on collision between a pickup truck driven by decedent and a butane truck owned by Arrow Gas Company and driven by Dennis Leo Taylor. Arrow Gas and Taylor have appealed from an award of $37,886.00 by the court sitting without a jury. Varney's administrator has cross-appealed.

Appellants attack findings 4 and 7 which in effect found the defendants negligent, and an absence of contributory negligence on the part of Varney. The appeal turns on whether the findings are substantially supported by the evidence. In determining whether the evidence is substantial in support of a finding, we must view it in the light most favorable to the successful party and disregard all contrary evidence and inferences. Thomspon v. Getman, 74 N.M. 1, 389 P.2d 854; Scott v. Transwestern Tankers, Inc., 73 N.M. 219, 387 P.2d 327; Grisham v. Nelms, 71 N.M. 37, 376 P.2d 1. A reviewing court will not weigh conflicting evidence but will examine it only to determine whether it substantially supports the findings. Minor v. Homestake-Sapin Partners Mine, 69 N.M. 72, 364 P.2d 134. The trial court's findings will not be disturbed on appeal unless not supported by any substantial evidence and reasonable inferences growing therefrom, or unless reasonable minds cannot differ concerning a contrary result. Moore v. Armstrong, 67 N.M. 350, 355 P.2d 284. See, also, Ashley v. Fearn, 64 N.M. 51, 323 P.2d 1093; Perini v. Perini, 64 N.M. 79, 324 P.2d 779; Hisaw v. Hendrix, 54 N.M. 119, 215 P.2d 598, 22 A.L.R.2d 285. It is equally well established that if more than one inference can be drawn from the established facts, the reviewing court cannot substitute its deductions for the conclusions of the trier of the facts. Adams v. Cox, 55 N.M. 444, 234 P.2d 1043.

The challenge that these findings lack substantial support in the evidence requires us to determine, as a matter of law, whether the evidence, viewed in the light most favorable in support of the judgment, with all reasonable inferences therefrom, and disregarding all unfavorable evidence and inferences, substantially supports the facts found by the trial court upon which the judgment is based.

Taylor had delivered liquified gas to a well site and was driving the Arrow Gas truck in the single set of tracks in the middle of a 20-foot-wide graded dirt road at a speed of 40 miles per hour. Varney was approaching from the opposite direction in a pickup also apparently driving in the single set of tracks. No eye witness was able to testify to the exact position of the vehicles at the moment of impact and the truck driver said he did not know his exact location.

However, when asked to locate the two vehicles at the instant of impact, Taylor said he was driving in the tracks in the center of the road as he approached a crest over which he could not see until he reached the top. He said he saw the Varney pickup immediately in front of him as he reached the crest of the hill. When asked how much time elapsed between his first seeing the Varney vehicle and the collision, Taylor testified: 'the only thing I had time to do was to swerve. I had no time to do anything more than just jerk at the steering wheel.' The gas truck was seven feet, seven inches wide at the front fenders. The two vehicles overlapped their left front fenders eighteen inches. Mr. Shingler fixed the location of the Varney pickup at the instant of impact by its engine lying on the ground on the Varney side of the centerline and approximately three and one-half or four feet from the Varney edge of the road. He thought the engine had dropped straight down to the ground upon being broken loose by the impact because there were no marks to indicate that it had rolled or skidded. He bought the engine as salvage and installed it in another vehicle. The oil pan, generator, manifold, carburetor, air cleaner and other parts attached to the outside of the motor were not damaged. These were facts from which, by reasonable inferences or deduction, the trial court could have determined that the gas truck was partly on the Varney side of the centerline and that Varney was on his own side of the road at the moment of the collision. We find nothing unreasonable in those inferences, and, accordingly, the findings complained of will not be disturbed. Cardenas v. Ortiz, 29 N.M. 633, 226 P. 418; Trigg v. Trigg, 37 N.M. 296, 22 P.2d 119; American Hospital and Life Insurance Co. v. Kunkel, 71 N.M. 164, 376 P.2d 956.

The appellants point to the testimony of the investigating state police officer and argue that his location of what he thought was a spot of water from the Varney pickup's radiator constitutes a physical condition pointing so unerringly to the fact that the Varney pickup was on the wrong side of the road as to leave no room for a contrary conclusion. They argue that Ortega v. Koury, 55 N.M. 142, 227 P.2d 941 and Bolt v. Davis, 70 N.M. 449, 374 P.2d 648 require our determination that the court's findings lack substantial support. We cannot agree. They argue that because the waterspot was located in the center of the roadway, the collision must likewise have occurred at that point. The officer denied this by his testimony and said that in his opinion the point of impact was some three or more feet to the Varney side of the center. We think this is not the situation where surrounding facts and circumstances make the testimony of the witnesses who located the Varney pickup on its side of the centerline incredible or so inherently improbable as to be unworthy of belief.

The fact that there may have been contrary evidence which would have supported different findings or even that based upon the same evidence the court might reasonably have reached a contrary inference does not require a reversal for failure to adopt appellants' contrary requested findings, nor does it permit a reviewing court to weigh the evidence. State ex rel. Reynolds v. Lewis, 74 N.M. 442, 394 P.2d 593; Adams v. Cox, supra.

The precise question as to the proper measure of damages for wrongful death has not heretofore been presented to this court. The trial court based damages upon the present worth of the amount which the decedent might reasonably be expected to accumulate and leave as his estate had he lived to the end of his life expectancy, finding:

'Based upon the factors of his age, life expectancy, education, experience and demonstrated and probable future earning capacity the deceased could reasonably expect to accumulate in his life time an estate of a value of $150,000.00.'

Applying the present-worth formula of such an estate based upon a three and one-half percent interest table, or .252572 percent of the expected accumulated estate, the court determined its present worth to be $37,886.00 and rendered judgment for that amount. Neither party is satisfied with the damages. Appellee attacks the amount of damages by cross-appeal urging that the correct yardstick is the present worth of the reasonably anticipated prospective earnings of the decedent whose life was wrongfully cut off.

Generally, the decisions of other courts, relied upon by appellants in support of the accumulated estate method of arriving at the damages resulting from such death, construed statutes providing an action for the benefit of the estate of the deceased and declaring that whatever is recovered becomes an asset of the estate. See annotation, 7 A.L.R. 1314. This court however, considered and rejected those decisions in Duncan v. Madrid, ...