*1 351 1081 291 P.2d purchasers and- protect designed not acquir- encumbrancers, persons but other COMPANY, a AMERICAN INSURANCE faith good ing property, an interest in Pennsylvania Insur Corporation, Fire and value, subsequent and claims Plaintiffs-Appel Co., Corporation, ance husband, their woman, such married her lants, Thus, heirs, assigns. representatives or v. property recipiency of an interest Co-Partnership BURSUM, FOUTZ AND the married virtue dealings Bursum, indi and J. L. Foutz Holm and woman, application of, is essential to Defendants, thereof, vidual members n ap- provision; presumption the exclusive Third-Party Appellees, Plaintiffs and pellant in that class. See 10 is not Cal.Jur.. Company, Corporation, Southern Union Gas 2d, 43 44. Community .Property, and §§ Third-Party Defendants. No. 5902. prosecuted Every action shall except other in interest party the real Supreme Mexico. Court of New statute, 21-1-1(17), provided § wise Dec. 17(a), Rule our Rules of Civ Comp., Dissenting Opinion 6, 1956 Jan. however, concluded, Having il Procedure. community prop property Overton, it T.
erty appellee Helen and com appellee, head
follows in interest party
munity, the real State the action. proper bring 401; 51, 178 Barker, P.2d 51 N.M.
v. 439, 62 40 N.M. Dougherty,
Reagan v. Gurley, supra. Also see Brown
P.2d 810. for a reversal questions urged
Other considered been judgment will merit. without
found ordered. affirmed, McGHEE, SADLER, KI-
LUJAN, .
KER, JJ., concur.
brought by plaintiffs subrogees of J. Vemon Bloomfield and Bloomfield to Jessie paid recover the amounts each of two companies insurance insured under to their policies damages for a house and its Farmington, contents New Mex- located Foley, Albu- Adams, H. Quincy D. James ico, explosión September caused appellants. querque, brought The action is Bursum, defendants, copartner- Foutz & Aztec, Daugh- H. A. Jeffries, Johnston Bursum, ship, and L.' Foutz and Holm J. Farmington, appellees. erty, thereof, individual members who were en- gaged City as contractors for the of Farm- SADLER, Justice. pipes. ington laying of sewer It was appellants 'below) having (plaintiffs alleged they negligently struck service line damages their suffered paid house, insured for connected to the Bloomfield break- explosion, subrogees under the gas ing causing escape, gas ig- issued, ap- policies sued the terms of the exploded. nited pellees through negli- (defendants) whose *3 Damages were by Pennsyl- demanded gence explosion charged the to have Company, vania Fire Insurance of one the plaintiffs occurred for reimbursement below, plaintiffs in the action in the sum paid by the reason of of amounts so them $10,000 paid of by the amount it for explosion. damages said the suffered in damage to damages the house and were jury and resulted The cause was tried to a sought by Company, American Insurance upon verdict defendants in a in favor of the plaintiffs below, of one the in the sum of judgment duly which entered. This $2,455.68, by as the paid amount it for dam- prosecuted by plaintiffs appeal is the for age to the contents of the house. An an- by en- judgment review us of the the by swer was filed denying the defendants against them. tered negligence party and later a third com- plaint by filed them Southern A brief proceedings statement of be- the Company, Unión seeking Gas reimburse- point give low will at made be ment from it of amount which might be general understanding the case from of plaintiffs. recovered the them the outset be followed later an am- plified plaintiffs’, statement At the of the facts more im- close of case the third defendant, argument party connection with mediate be- Southern Union Gas Com ing made at the time. The action for pany, moved a directed verdict one and the
354 -more,, plaintiffs or no to-'such and whether objection interposing defendants single joined.” or shall be defendants dismissal motion, granted court proceeded The trial then prayed for. This for construc- statute us was before plaintiffs and between' N.M. Cartwright, tion in Morris v. in favor resulted verdict and in a plain- 258 P.2d 721. In that case duly en judgment was upon latter which operator of jointly tiff and sued owner .the obstante non judgment for tered. A motion passenger taxicab in which she was a a new for veredicto, in the alternative dr the- and the owners a truck with by the trial, having filed been damages for taxicab collided to recover hearing thereon (appellants), after injuries The re- suffered in the collision. for much same. .So denied the court truck spective and owners of the taxicab time proceedings-up to the represented separate were counsel. through to this court the cause transfer trial, coun- When the case was called for plaintiffs. appeal by de- sel for both their defendants announced ground aas point presented The first requested antagonistic fenses be ac- court’s the trial out' of grows reversal the court to allow them five additional" peremptory allowing five tion being peremptory challenges. The court n like and a original defendants two to -the opinion that it its was matter within defendant, party third number discretion allowed the two sets of defend- plain-, Gás-Company. Unión Southern peremptory challenges ants five each. We them, insist counsel or their tiffs held this to reversible error and party the third original -defendants said: total of to a- only entitled defendant think the erred in arbi- “We between challenges as’ five trarily extending the statute. appropriate ac- took The defendants them. party’ op- term ‘each the two means cor- for review reserve-' below tion controversy. posing to a Each sides ‘ruling in this court’s trial rectness party constitutes one side alone Heneé, this action particular. peremptory chal- is limited to five if error court, presents reversible trial By employing the term ‘whe- lenges. here contention correct counsel * * * single joined’ ther made. *4 plural, parties, though are re- opposite statute, Comp. 1953 governing '§ per- join in the exercise of quired 19-1-36, follows: as reads ex- challenges. The view emptory may party each civil cases all “In generally finds pressed here accord jurors (5)- peremptorily -five challenge 355 third bring the cases. Northern Mullery may v. Great When defendant 408, Ry. Co., 323; an- party. 50 Mont. his 148 P. “Before the service of Hansen, 62, parte swer, may Mourison v. 128 Conn. 20 move ex defendant or, answer, 84, 413; A.2d 136 Ferron v. after the A.L.R. service of his Co., Transp. plaintiff, Intermountain notice as a Mont. for leave third-party plaintiff a sum- interesting 143 P.2d For an to serve per- upon person not relating complaint mons and discussion rule emptory party may in criminal cases to the action who is Compton, part generally, see State liable to him all or v. plaintiff’s 257 P.2d
N.M. 915.” claim him.” factu- Both sides comfort from we see between the draw what We a distinction case, foregoing plaintiffs Cartwright al said situation in Morris v.
by reason of the fact that under the situa- that shown here. This distinction we think sepa- existing analogy there we confined the denies case the tion peremp- plaintiffs total of five draw it to rate defendants counsel seek to There, plaintiff pro- tory support. challenges as between them. The their directly against ceeded defendants. their two present draw comfort party defendant in- There no third by pointing out the the case differ- from Cartwright. It wa's existing volved Morris the situation between the ence in par- third parties brought case here on a here, into the arising there and defendant Bursum, & ty complaint filed Foutz any controversy the absence of codefendants, they had themselves after in the case conflict between the defendants complaint. The plaintiffs’ answered at bar. negligence charged had point that while in Their counsel out Bursum, defendants, was the Foutz & Cartwright the Morris v. defenses injury. damage proximate cause of antagonistic may two defendants have been Union complaint making Southern their pro other, yet them was to each neither of defendant, party third Company a Gas that action as ceeding against the other in al- party plaintiffs the defendants third the case here as between defendants on party neg- defendant’s the third leged that party one side and third defendant on proximate cause of the ligence was may quote be well other. damage. portion practice party the third rule pertinent asserted third which is de- this discussion: Rule The defenses 14, N.M.S.A.1953, original plain- 21-1-1 are not (14) fendant §
356
Toomey,
of Ralston v.
the case
We think
plaintiffs
party
third
against the
but
tiffs
309,
308,
is
Tex.Civ.App.,
S.W.2d
246
pleading or
No
defendants).
(the original
facts
on its
this one
nearly the same as
either
is asserted
any kind
claim of
Indeed,
be deemed decisive.
it should
against
party defendant
plaintiffs
third
dealing with
does,
appraise
In
as we
it.
defendants
Hence,
counsel
other.
situation, the court said:
like
inquire:
aptly
plaintiffs)
(third party
“
say
* *
appellants
*
“How, then,
can
stated the
This court
op-
is
party defendant
that the third
Jackson,
S.W.
in Lofland v.
rule
n
plaintiff
can
posed
or how
to the
785,
2d
792:
con-
is a
“
successfully assert
there
established that
rule is well
‘The
parties when
troversy
these
between
having iden-
than one defendant
more
‘allegation
there is no
as between them
common defense
and a
interests
tical
denied
is
fact on one side which
party.
If
but one
in a
constitute
suit
the definition
the other side’ as
antagonism
suggestion
there is no
controversy
forth above?”
is set
word
found
between defendants
of interests
Cart-
and no adverse issues
pleadings
in Morris v.
is
be noted that
they
them,
“each
constitute one
phrase
supra,
pleaded
wright,
we defined
19-1-36,
per-
Snly
six
Comp.
are entitled
party and
party”
in 1953
§
as used
panel
jury
a con-
opposing
emptory
sides
two
to mean “the
Cartwright
rule
But the
is
court.
in Morris v.
in the district
troversy.” While
pleadings
defens-
antagonistic
show
may
if the
have been
different
there
yet
neither
has asked for
defendants
the two
one defendant
es between
in that
defendant.
against
another
proceeding
over
was
bar,
however,
at
Here,
in the case
determined
question then to be
action.
plain-
party
in-
third
became
is conflict
whether
not there
the defendants
deemed co-
in no sense be
In
defendants.
and could
terest between the
tiffs
party
County,
defendant.
the third
with
Nueces
the case of Gussett v.
defendants
controversy
with
Indeed,
sole
the Commission
235 S.W.
connected,
rule:
party
lays
following
defendant
Appeals
down the
the third
whole,
between
each
parties as
Texas that
“It
settled in
viewing
is well
district
plaintiffs)
party
to a civil suit
(third party
six
lat-
be entitled to
party defendant.
shall
itself,
third
parties
ask-
challenges,
defendant
claim
nor even
making ter
against each other
plain-
judgment over
any controversy
ing
interested
” ’ ”
* * *
(cid:127)
the rule.
are within
tiff.
support
position
proceed-
of their
controversy
rate
between Crume and
appellees
ing
here
along
Toomey.”
the same lines as
(Emphasis ours.)
separate
Later,
argued,
that a
showing
246 S.W.2d on page 310 the court
party
controversy exists
the third
succinctly
between
stated:
defendant,
apart
and third
“There existed both in the pleadings
*6
plaintiff
original
from that
between
and in the circumstances of the colli-
defendant,
original
opinion
the
continued:
a jury
sion
issue of potentially serious
significance
Toomey
between
controversy
“In this case a
existed
Crume.”
appellees Toomey
between the
Toomey
party
in
Crume.
his third
The
plaintiffs sup
answer the
complaint
driver,
his truck
against
ply to
Toomey
Ralston v.
as an authori
Crume, alleged
negligent
that the
acts
ty
say
is to
that,
Texas,
Morris v. Cart
Crume,
any,
of
if
were ‘a breach or
wright would have been decided different
Toomey.
duty
violation
aof
owed to’
ly from
way
we determined it. Such
prayed
indemnity
He
against
for full
may
an answer
precedent
weaken it as a
any
Crume for
amount which should
but it in no
destroys
manner
the rationale
him, or,
be adjudged against
in the al-
of
holding,
its
leaving
thus
logic
its
ternative,
prayed
that he be award-
reasoning unimpaired. We find no error
party
ed contribution from the third
in the allowance
party
to third
defendant of
defendant
amount which
five
challenges in addition to
appellants
granted
should
as a
the five
such
allowed the two
result of their suit
him. Thus
codefendants treated
as one
to the
antagonism
there was an
of interests
Saunders,
action. Roberts v.
118 N.J.L.
appellees,
Toomey
between the
since
548,
matter pipes. lay such premises their in which to insured. plaintiffs’ damages suffered trench sufficiently engaged digging While thus evidence review the shall We Farming- along North Auburn jury Street presented to determine whether ton, Mexico, September New on evi- issue, thereby affording substantial property question, in front of the returned. dence' for verdict pipe gas machine struck underneath evidence, of all conclusion At the street, gas which with a. was connected interposed mo- two for defendants counsel containing gas main natural .which verdict, fol- second tions for directed piped gas directly the house into ap- seems lowing a of the first. denial occupied plaintiffs’ insured. title time to state propriate at by' striking pipe’ gas stood was the house on which real estate point digger gas trench bent the line at the tenancy, circumstance joint held in impact produced tüat but at occasion leak appear, the later explains, as will point. gas digger The trench struck the motion. alternative second or for the p.m. line about o’clock Mr. and Mrs. 2:00 put forward motion latter estate; house, Bloomfield, occupants that, real since the theory advanced *7 were absent from home all afternoon. tenancy, if joint in held was ' They p.m.' returned about negligence caus- 6:30 be- of guilty to be found were Just' explosion, son, though their the fore went damage, even and ing the loss Gary, upon returning found to' to the basement down and insured should of husband neg- his contributorily negligent, gas. stated that he smelled Bloom- Mrs. have been imputed to her a informed not be field her husband of the infor- could ligence become, then would she mation from and him 'to the son asked joint tenant the amount of one-half check the He fofihd to recover did entitled .furnace. - joint ten- as her pilot light burning. extent still He started sued for trial The scarcely an interest. into the bathroom and had arrived ancy established mo-, explosion denied both argument and there when the occurred heard at 7:00 p.m.- working crew had off- cut work tions. n prior day just explosion. : for-the the material recitation of Now, a To understand the location of the noted, service already the defendants As facts. digger, by the trench line struck one City should laying contractors originally mind that as in bear ihs'talifed plain- on the street on pipes sewer ‘ to the gas connected meter was excavating lived and were located insured tiffs’
359/ n (cid:127) near .the corner of rear the Mr. northwest Bloomfield ran down into the base- (cid:127) ran the street in house toward ment saw . bedding thence some cotton bum- .and - , house straight alongside ing line to a on the a floor. The northeast corner point the northeast corner the house .alt the house investiga- was also In an afire. premises, then tion next directly morning, front of the service line was in. southeasterly up off a direction dug at and a veered crack found in was it at the angle 45-degree point across the where apprpximately burning the fire the night prop- front premises before. The large enough front line crack was .the permit gas street where erty escape get It there line.. entered into the house point through at a sandy main gas connected with the soil and cause the ex- it. plosion. of where the approximately feet south No other leaks were found in gas line reached the service service would have line. There seemed to be no *’ direct line doubt about explosion main if connected or laid the fact that main, as is cus- gas gas through caused escaping from the meter to the this leak. tomarily done. The service line mentioned had been in- place . highly this unusual That property, stalled the owner him- ;the gas demonstrated find service line is self, through plumber a local who testi- superin- Trosper, testimony of C. M. fied as witness in the case and gave it job. Among construction tendent opinion that, considering as his the amount things, he testified: displacement line, the service the im- to lo- “Q. you had occasion Had pact of trench digger the service or other lines that cate service caused line the leak or crack in it at the project in connection with streets northeast corner of the house. morning? to that prior plaintiffs rely strongly most yes. morning, Prior to “A. claiming they were entitled to a directed lines those service “Q. How were on certain verdict admissions made at or ? located ' the trial before the defendants and also same man- good A deal “A. pre-trial confer-., the memorandum of the
ner!” formally ence. The defendants admitted:-. existed in situation unusual Another point occurring at the leak, instead of employees, That one of their acting *8 or located some 50 impact, was feet employment operated in the course . of his , that, point following gas the line digging from: the trench engaged machine meter, house gas the the premises where toward front the Bloomfield on the /Immediately explosion,- 26, after the September afternoon of 1952. located. ing machine as machine the same or similar the operating the
2. That while so occasion, digger on had the trench used underneath line gas it struck service pipe snagged gas or other lines in gas main struck to a was connected street which City Farmington, causing the Bloomfield leaks. the conveying into gas house. request facts, the On admission of by defend- given
3. That no notice they the defendants denied that “made no or Bloomfield agents or their ants attempts themselves find the location of Company, prior to Gas Southern Union line, gas pipe said than to ask J. had line gas service explosion, that Bloomfield, prop- owner of Vernon hit said machine. been erty.” However, proof there is that no defendants be- anything did in this further made specific request That no 4. half than to make inquiry of the owner Un- agents their to Southern or defendants property service gas to where explosion, Company, prior to ion Gas line was located and to be furnished gas serv- locating the or assist to locate supposed the information him in ques- leading the house into ice line straight gas continued in a line from the tion. meter gas to the main. This was custom- agents or their 5. That the defendants arily true. knew, prior the machine struck to the time line, pipe gas line, facts, that there was gas plus is on these an admission line, leading ordinarily pipe a service striking called after the street prior they main underneath line and gas explosion, gave from the they although thereof, did question, to the house notice either and Mrs. to Mr. Bloomfield, house, of the service occupants exact location not know the or to plain- Company, until it was struck. Southern Union line Gas tiffs jury must rest their claim to have time the service prior to the 6. That instructed law de- as matter of that the machine, by the was struck line mentioned fendants were negligent neg- and that such employees their nor the defendants neither ligence explosion caused the and conse- request any specific had made agents quent damage. Company to locate Gas Union Southern which was later struck. pipe line gas presented We the evidence September justify prior upon rely their That upon right work to an instructed engaged same claim of verdict while defendants, project, negligence. their favor on issue of At construction employees, operat- argument their challenging while the outset of agents their
361 for plaintiffs to a directed verdict which in the re- foregoing this claim of cases we a much like versed merely counsel cite case it for men- doing. their favor This is tioned, facts, an action being incidentally, obviously one on it this its for can Tulsa, City Oklahoma, for have of no bearing on whether the court in present building a as result of an the burning of case should not have or should explosion City given line gas plaintiffs. which the directed verdict for of allegedly had broken in construction Admittedly, already indicated, gas utility reversing ditch. In service line was found in a highly to be un- court had sustained a of the district usual irregular place, 20 about feet plaintiffs’ close of evi- motion to dismiss at conditions, south of where under normal dence, Supreme of Oklahoma in Court might expected one have been to find it. Okl., City Tulsa, of P.2d Farmer v. 264 Asked whether he had ever found 299, long rule adhered to in affirmed instances, Trosper, C. M. construc- state, paragraph third this as shown of superintendent tion job, on the testified: counsel, syllabus, quoted as follows: any, sir, “I don’t recall of right no not off minds “Where of reasonable men I think hand. there though.” were some whether might differ as to evidence factor, Another presenting an unusual plaintiff is adduced sufficient to feature ordinarily arose on the fact that part negligence on of defendant show when a service snagged line was relationship proximate thereof to digger, instance, trench as in this if a leak complained of, question injuries is occurred, would be at inor the immedi- by jury.” resolved to be one vicinity point impact ate where pipe exposed; affirmed this rule in whereas We almost instance, possibly due language time and again. time circumstances identical presently mentioned, Olguin few late cases see leak Thyge- For a 377, 585; point 60 feet 143 P.2d some 50 or removed from sen, 47 N.M. McMul- impact. Sisters, Order of first time Ursuline 56 N.M. in Tros- len v. experience had 1052; per’s he ever 570, City found a leak 246 P.2d .Williams v. Hobbs, 765; point impact. far removed from Thomp- so 249 P.2d N.M. phase situation, Touching this Dale, son v. 59 N.M. 283 P.2d most, all, cases, testified: foregoing if not now, “Q. Well, your prac- was it erroneously we the trial reversed court part examine that having tice directed in favor of the verdict exposed Here, pipe that was to see whether are defendant. we asked reverse a leak there? there was the trial. done having that would, Well, bedn be- been the case if the line had ordinarily “A. service customary man- part you expect laid and constructed in the be dam- exposed argue strong- we, naturally aged and ner. Counsel for is examine, ly expected fore- you yes, one could be and that what and condition's. see these unusual situations sir.” entitled, they say, to The trial court whs When was struck the service line *10 question defend- the of whether consider pipe practice, the in accordance with usual light of these negligent in the ants were in for leaks. both directions examined ‘ ' ¡ conditions. torches or applying was made test pipe. Find- exposed struck matches the accident, operatpr the the At time of the. leaks, of the trench digging the ing proceeding at on- digger was of the trench Trosper testified: was continued. speed, the lowest of ly one-third normal * ** case, per- I “A. operated and speed at it be which could pipe saw sonally examined the This, the kept notwithstanding in motion. pipe the in no fracture that there was had been lo- if the service line that fact part was ex- in that immediate thought was and Bloomfield it cated where we went on about posed, and therefore crew, as cus- the work informed everything work, thinking that our laid, i.e., in lines were tomarily such okay.” gas meter to the from the straight line might in evidence Another factor line, they justi- have been gas main the bearing on some deemed to speed the at operating machine full in fied negligence, or question of defendants’ 20 feet north before slow- for some ahead ' n testimony concern- it, arose on the of want line. for the service ing down n < the connections in which the manner ing having circumstance sig- Another some leading from line the service made in were appears. Shortly as- nificance before gas meter. line to the property the front the, from Bloomfield certaining location at north- 45-degree turn By reason line, of the service the defendants’ con- house, it became neces- corner east superintendent lo- struction asked him .for pipe point at joint sary to install cation of the water line and correctly type of connection turn. exactly proved pointed out where it in- plumber in by Bloomfield’s joint used and the machine did strike water the. link weak in joint constituted stalling the (cid:127) inquire counsel, Is it line. wonder, sus- line, rendering it more service having that after verified his information particular point, damage at ceptible ,the¡ strain, line, location than would have water exposed to as.to cr.ew when even, his, may relying point on. cate the line justified service in have-felt ofr ditch., gas putting questions suggesting as to where believed he. statement least, say hand, say pick could dug using line have been to be? service To ' counsel, jury entitled consider shovel methods. The. time stich were sto this, to, along appeared, with others method was resorted circumstance was. passing upon defend- question power whether when the driven trench digger" negligent. were neared established location of a ants serv.- line, it was resorted pre-: ice to as an extra practice, before As a matter common n against damage. caution The testimony' . de-. operations the commencing digging com-, disclosed, however, utility 'service, endeavoring fendants in to locate pany always locating; was not correct ordinarily employed methods: lines two such lines and made its share of mistakes-' Com by asking Union Gas (1) Southern was,' pointing supposed out locations. help pany' in the location of the service also disclosed that scientific and mechani- of, line; inquiries (2) through cal devices to always- locate lines were not instance, they property' In this owners. helpful, one of them the “Doodlebug” on latter, practice, and a common pursued the This, “going every occasions direction.” Hence, inquiry property owner. : presence old,, was due to many of so Trosper Mr. Bloomfield told he- when streets, dead lines under the of which there directly in front thought the line was many Farmington. meter, naturally the latter believed gas *11 witness, Trosper, testified correct because that the further as this to be was practice the usually pipe' to of lines were defendants where a place where such found. connection, was struck. After Trosper examining a testified: struck' In this line, leaks, if there practice were the was’ why you Then did assume that “Q. utility ,at notify company the If once. where Mr. Bloomfield as- the line was found, and, leaks hence, no were gas no it was? sumed escaping, something usually was ascer- Being gas where the meter is “A. by applying fire given tained to a area was, reasonably certain that impact, point quite naturally around of the. be, be where the line would would that practice was assume the line had not is what we took into con- injured and trench digging been was con- operations.” in our sideration occasions, however, On tinued. after ex- line, through amining though a struck even . was made no gas An effort cross-ex Trosper they notify escaping, to show that gas of other was the amination employed company, occasionally have been since there would should lo methods 364 through, in- stoppage gas flowing job,
be a of if on the believe did not conditions pipe up.” the had become “kinked dicated break elsewhere in the service line, any damage, or that than a pipe Ordinarily, mere bend the was in slight pipe point im- bend in the at the of reported. pipe not the striking of Eaves, fact, pact, had resulted. neither point the here had it at bending resulted Trosper nor the line was a knew struck impact. up testimony the of To sum on believed, utility they they line. Had reports practice particular, in this would forthwith have notified Southern detected, made were were when fractures prac- Company, Union Gas as standard found, stoppages in were or where gas flow job. tice custom on escaping. In actually found to gas was however, witness, Trosper, case, perhaps of instant after one the While important defendant, exposed pipe with a most one for be- had workmen point superintendent ing area of in the construction with more shovel hand years experience a frac- ten no evidence of than in this line of impact, there was work, gas testimony found his pipe, in the corroborated ture Eaves, none, respects by test indicated material the oiler on escaping and torch Little, stoppage operator power obviously job, was no of and, there Furthermore, nothing there was machine. We have considered the material flow. might they have occurred in the as and other witness- fracture facts case indicate a presented Strangely, the bend in removed from them feet es evidence. some dispute Incidentally, one workmen not much between the there is too pipe. pipe had seen bent experience parties as when it comes to the material facts. long causing a frac- without two feet is evidenced number formal This much dictated into the admissions ture. portion early and set out record positive, Actually, workmen were opinion. our pipe point, at this examining but aftetf Unfortunately, do not have a former we line, of which they struck a dead had precedent aid for our decision serve Accord- many Farmington. there resolving decisive on the issue facts. cautiously point they ingly, City, Town Silver The case Snider top foot of soil about removed perhaps 247 P.2d comes N.M. machine, diggers while the hand on its facts than to this one nearer the service line place where dug around *12 called to our attention. But aside be, according to Bloom- other supposed to being damages , action which are Eaves, field, oiler from' shovels. with hand par- in that theless, negligence to explosion, result- even as gas sought reason of important ticular, which becomes less through a leak in a gas escaping ing from was no jury’s finding there little view of pipe, it furnishes but aid. snagged particular charged, basic negligence major problem deter Our is to as a matter of we think it could not said testimony as we mine whether under negligent. law that the defendants were it, reviewed court have have taking warranted the case from been So much for the claim of a matter ruling as of law that jury go there was not sufficient evidence to to guilty were of actionable jury upon neg- the defendants defendants’ the issue of give single can but a an negligence. We ligence. It would been error for the have and that is that it would have swer been jury trial the defend- instruct the Obviously, the court to rule. error for negligent as a matter ants were of law. all proper But, counsel, under the evidence and inferenc they say their even if therefrom, flowing es minds negligence was rendered negligent, reasonable negli would differ on whether there was by contributory innocuous and neutralized gence part on the of defendants. part on the of one of the megligence own- occupants of the house belonging ers and Indeed, particular pleaded as wife, joint V. Bloomfield and ten- J. to which most of the evidence was ad- ants, which the broken gas line served. duced, namely, operating that in the motor negligence That was said on in- to arise powered trench digger, the defendants given formation defendants’ work crew “negligently caused said machine strike gas V. Bloomfield as to location of J. gas pipe underneath said street” on service line. It is claimed misinformation which operated, the machine being given Trosper, was said to been C. M. obviously there was an issue of fact on the Superintendent defendants, Foutz and question of negligence. defendants’ Bursum, morning explosion of the As ground viz., negligence, another gas to location service line. It was notify failure to Southern Union Gas ordinarily in evidence em- Company, promptly, of striking ployed two methods of ascertaining loca- pipe, specification negligence gas tion of before excavating line service importance defendants did not consider of particular property line, along viz., eith- enough plead, yet which was made an property owner er from himself or proof here, issue in the argued company. inquiry,of .gas In this question in- is narrower on whether there was enough go jury. former method evidence Never- stance the was chosen.
366': Bloom-, (cid:127)
n It
part
the
negligence on
tributory
defend-
when
the noon
was near
hour
impute
as a
to his wife
same
field
to
of the Bloomfield
in front
arrived
ants
prop-
ownership
the
equip- joint tenant
digging
their ditch
property with
totally
question.
it
inade-
erty in
But
is
fact, that Mr. Bloomfield-
So near
ment.
very
purpose invoked. The
for the
quate
luncheon
his noon
home for
reached
had
apprise
to
sufficed
sequence of his answers
work crew
shortly, following arrival
ignorant of
lo-
he was
he arrived defendants
as
property. As soon
his
at
He
gas line.
answered as to-
whether cation
Trosper asked him
Superintendent
He
it
water line first.
“knew” where
water and the
him where
could show
he
immediately
property. Mr.
But when
there-
his
located.
lines came into
gas
gas
he knew
where the
by stating that
he was asked
service
replied
after
Bloomfield
“assume,”
proceeded
according
he
could
line was and
line was he
the water
where
was,
Trosper,
“guess,”
as was
as
exactly
it
or
Bloomfield tes-
him
where
to
to show
Truly,
to
case, according
tified,
it
action-
be the
where was located.
found to
later
contributory,'
the time
ground
primary
at
markings made on
or
able negligence,
word,
by Bloomfield.
pointed out
not
on
could
rest
a
whichever
it was
used,
as
so uncertain and indefinite
asked where
Thereupon,
latter was
meaningless.
and, leading
Tros-
gas
line
service
gas
where
of the house
his
per
the rear
Contributory
parr
in another
negligence
out,
pointed
located,
meter was
ticular,
pleaded
perhaps,
litigated,
but
said,
Trosper:
according to
Bloomfield
theory
hav-
arises
that Bloomfield
right along
runs
“I assume
through
his
a
ing installed
own service line
(Emphasis
house.”
part
north
plumber
years
local
some
earlier was re-
ours).
therein,
sponsible
link
ne-
a weak
according to Bloomfield himself:
cessitating
joint
use of a
in the line in a
at
the meter was
“A.
I stated
departure
straight
reaching
from a
line
guess
the house and I
side of
north
gas
properly
main. Whether
raised
there,
straight
come out
out
must
line
wholly
not the claim is
without merit.
say it
the meter.
I didn’t
Idid
line
convey
The service
was made to
guess.’
T
said
only,
substance
gaseous
not to withstand
you
“Q.
are sure
used
You
pressure
power
of a
shovel.
‘guess’?
word
Yes,
“A.
sir.”
The conclusion that
there was
contributory negligence places
the trial
testimony
on such
this
that de-
error,
course,
seek make out a case
of con- court
submitting that
fendants
ex-
tory
negligence,
occasion
appellees seek
we find no
The defendants
issue.
press
question.
denying de-
view on the
effect of the error
avoid
failure
through their
of it
fendants benefit
close our
might
good reason
We
request
so that
special interrogatories,
opinion
point
at
but
view
ver-
whether
it could
ascertained
case, we
possibility
of another trial of
of no
finding
dict for defendants rests on
something
say
may
justification
with some
part,
contributory
their
negligence on
presented
a few
as to
claims of error
part.
giv-
Bloomfield’s
negligence on
second
avoid the occasion for a
possibly
*14
special interrogatories is discretion-
ing of
One
of error is that
appeal.
such claim
court, subject
ary
trial
to review
with the
its instruc-
giving
the trial court erred in
Bliss, 43 N.M.
abuse. Larsen v.
for
5, reading:
tion No.
811;
Johnston, 43 N.M.
P.2d
Crocker v.
“You
that
in this
are instructed
proper
If
for
case
fine except opinion per- concur in I improper and argument as this was emptory challenges. If been countenanced. should not *15 easily warrant the in, could persisted opinion majority The the makes the But there mistrial. following a declaration clear: .of by the trial ipotion action no named Southern Union Gas Defendants likely will and it is occur court party having defendant after Co. as third a retrial. again complaint: plaintiffs’ answered defendants, Foutz charged Plaintiffs complain rightly plaintiffs and The Bursum, partnership, individual the and of the issue of submission unavoid-. joined as were defend- members-of-which to It could serve de accident. able proximately ants, negligent were jurors the minds of the true the tract injury plaintiffs: suffered caused the or not on negligence issue the. and basic party complaint third in the Defendants - It was error to part sub- of. defendants. negligence charged Southern Compare v. Brownlee, Frei the issue. mit proximate Co. cause Union Gas N.M. 677, injury: P.2d 671. "56 any pleading juror accepted by No claim kind was seventh or was called and plaintiffs party asserted either or the third defendants third defendant party jury immediately defendants the other: sworn and the trial plain- proceeded. party third When there jurors were eleven tiffs and could in the peremptory not be considered co-defend- box thirteen challenges party ants with the third defendants: had been exercised above shown. This controversy requires The sole with which the that two challenges for cause had party third defendant was connected was twenty-seventh been exercised before the juror between defendants and itself: was called. With eleven the box challenges and fifteen all told having been party The third making defendant “was made, twenty-seventh juror was called. no any claim even interested in juror, plaintiffs This whom wished to controversy ex- plaintiffs”: clude, a fact made known to parties, In this situation as to request additional challenges, was peremptory trial court allowed five chal- sworn with plaintiffs' eleven and lenges original to the defendants and the case tried to him. If there had been no party same number to the third defendant party defendant, third stranger plaintiffs while were allowed five chal- interest or cause of action stated or at- only. plaintiffs’ attorney lenges ob- tempted plaintiffs, stated jected allowing challenges five to the juror never would have sat in this trial. party third defendant and after having Injury plaintiffs appears to me challenges exercised five allowed to fully established. clients, twenty- a challenge submitted to the juror seventh called to the box for voir dire Our rule as peremptory to the number of examination. party action, allowed to to an plaintiffs that is defendants, or the challenge This was denied. At that time correctly quoted majority opin- original defendants and the party third Plaintiffs, many, ion. however are allowed defendant had peremp- each exercised four peremptory challenges; five and defendants tory challenges. many, however are allowed five party If there had third been no defend- challenges, and no more. The rule reads: ant, jurors if the selection of the had “In civil all cases each may proceeded plaintiffs between and de- peremptorily challenge (5) jurors five fendants, twenty-four no than jurors more more, whether have been called box. This *16 appears from the fact the-twenty- single joined.". that when shall
370 sup- were, Corp. (Emphasis my opinion, in ijuite
1953 19-1-36. unlike the iisu.es § joined plied.) persons here. There all an were tagonistic plaintiffs. Trial in this Texas SAD- majority opinion, Mr. Justice case resulted in judgment in favor of justification for the writing, LER finds its owner, truck Toomey eight for hundred and challenges an- peremptory holding as to fifty Crume, driver, dollars and for in in in case decisions nounced '' thirty-six sum- of dollars. From this Jersey. New only, Texas and courts two appeal an taken Ralston Toomey, is Ralston The Texas case cited and Wilbanks. S.W.2d 308. Of Tex.Civ.App.1952, 246 majority that it it is this case said complaint first appellants, made nearly one its as this the same “is so plaintiffs, to the action of the trial court decisive.” be deemed it should facts was in granting to appellees each of the six Virgil Wil- R. Ralston and In case H. peremptory challenges. further Before in an automobile riding banks were well, discussion of this case would be I by Everett owned truck with a collided think, in to have mind the rule Texas and by Floyd Crume. being Toomey driven something history of its and that which way in involved Toomey has, occurred the state of Texas as to Wilbanks, in cause and Ralston accident. peremptory challenges. truck, Toomey, the owner 1218, sued legislature 1871 the passed Texas resulting from wreck but damages for statute Vernon’s art. suit, Ann.Civ.St. In another cause not sue'.Crume. 'did reading: Toomey Ralston sued Crume the truck damages done Wilbanks party suit “Each a- civil will be injuries sustained personal entitled to six suit filed After this second Crume. trie<j district case court and to in cause answer filed amended Toomey county three in a court.” alleged cross-action in which It- is be observed that the words “and Wilbanks. His Ralston appear no more” do act.' In 1939 contained a third also answer amended legislature took such action as Texas the driver of complaint against his repealing had the effect of just statute answer contained a truck, Crume’s Crume. Wilbanks, Then court rules quoted. adopted ; against Ralston and cross-action plaintiffs. original 233 of the fiules’of Rule No. Civil Proce- language is in the identical dure of the sec- and the facts joined stated The issues just quoted. tion of the‘statute above parties this Texas case by the various
,871
peremptory
had
challenges
.Texas-has
the-matter of
Ke-mp
were allowed.. That
is
many
challenges under consideration
times. and
together
per-
Dodson
allowed
were
six.
Dodson,
Waggoner
emptory
In 1902
v.
challenges
the case of
-Henderson
and
was
6,
813,
993,
Tex.
S.W.,
68
69
opinion I'.quote:
96
S.W.
allowed six. From the
Appeals of Texas.
before the
of Civil
Court
“To this action the first error
is
James,
sued
Hen
Waggoner
In that case
assigned,
the assignment,
think,
and
we
derson,
Dodson,
Kemp
and
F.
M.
A.
and
must be sustained.' At common law
is,
The
defendants.-
plaintiff sued five
peremptory challenges were riot al
controversy
three hundred and
involved
all,
lowed in civil cases at
and
crim
twenty
filed
an
of land.
no
acres
James
inal
right
cases
confined
to' the
complaint
and
plaintiff’s
to
swer
issue,
main
and did not extend to the
two Dodsons
Waggoner.
for
trial of
Thomp.
collateral
issues.' 1
possession and in
to
addition
Trials,
43, 44, 46;
Jury;
Prof.
§§
§§
they
of the action
in defense
pleading
162,
;
353, 396;
163
Bl.Comm.
4
Free
Kemp and
recovery over from
sought a
Denio, N.Y., 9,
People,
man v.
4
47
Kemp adopted the an
Henderson.
from
216;
Hamilton,
People v.
Am.Dec.
and in addition asked
Dodsons
swer'of the
Com.,
107;
2 Rob.,
N.Y.
Brooks v.
in the event
recovery against Henderson
Va.,
Unless, therefore,
right
845.
himself.
victory
of a
Dodson
statute,
exist,
not
it does
given
pleading
guil
not
to
in addition
Henderson
that,
if
which it results
a case
from
petition Waggoner
ty in
answer
which a statute on
arises to
-.sub
on the
plea
war
and a
over
James
applicable,
it must
ject is
treated
not
Kemp
ranty, replied to the cross-action
gives
statute
Our
casus omissus.
special
and with
general
denial
in the
party
civil suit
district
to a
each
merely serv
claiming
he was
answer
challenges,
peremptory
and
court six
property
purchase
Kemp
his
ing
more,
with the
line
construc
conveyed
though
Kemp
Henderson
imiformly given similar statutes
tion
Kemp.
claimed
he had
directly
'He
to
‘party’ has
word
been
elsewhere
convey
no consideration
received
plain
include
several
to
construed
named
The defendants
Kemp.
ance
defendants,
does not
mean
tiffs
they were entitled
claim that
plaintiff made
however,
Where,
distinct
‘person.’
challenges between
peremptory
twelve
against different
of action
de
causes
objected
the request
plaintiff
them.
join
together, such
tried
are
fendants
otherwise,
der, by
for additional
does
consolidation
them,
deprive either of
protest
peremptory
and twelve
denied
without
conflicting evidence,
consent,
peremptory
did
issues
right
his
plaintiff
been
between the
defend-
challenge
he would
to which
separately
not do
hold
ants.
that the
entitled had the causes been
Railway
legislature,
giving
opposing
each
Co. v.
tried.
&
[Texas
P.]
980;
Stell,
to a suit six
Tex.Civ.App.,
chal-
61 S.W.
[Mu-
Hillmon,
place
plaintiff
lenges,
meant to
at
tual
Co.
Insurance
Life]
disadvantage
such a
36 L.Ed.
selection
145 U.S.
12 S.Ct.
jury
try
A
made
the main issue. more
ruling
been
has
The same
better
interpose distinct
reasonable and
view would be
the defendants
where
*18
plain
the
either
legislature
to the
overlooked
antagonistic defenses
and
cases,
provide
thus
Arm
and
failed to
Rogers v.
tiff’s cause
action.
of
them,
else
them
deemed
ex-
Co.,
The case went that he had no consideration Court recovered cases, Appeals from the because Court Civil for the land. Thus we have two opinion. Supreme a dissenting by plaintiff against Court all suit the —one of Texas the matter and recovery considered an- defendants for rule, land, nounced the same as in our war- Morris v. defendant and another a Cartwright, 57 N.M. 258 P.2d code- against rantee his warrantor upon cases where the contentions of recovery the defend- fendant for war- antagonistic ants are not ranty. one with another In the main all the defend- case and when all have common defeating made cause ants were alike interested against plaintiff; quoted action, but what had their interest towas been said that court in upon earlier cases make common cause the trial. possibility granting greater case, num- subsidiary war- that of the peremptory ber of challenges warrantor, plain- case of an- antee tagonism co-plaintiffs between interest, or co-de- tiff had no but there was fendants. pleadings issue of made fact each two of the defendants as reversed, The lower court was Texas other, plaintiff which in event holding being that the additional challenges required a had have recovered would clearly properly point- It is allowed. jury. determination this lat- If supra, ed Cartwright, out Morris v. one, independent ter action had been an right New Mexico plaintiff each warrantee —the right is not to select but to re- and the warrantor as defendant— ject jurors that we must look peremp- been entitled six *19 our guide statute the state for in the tory challenges, and it clear that is peremptory challenges. matter The important right was to each them as words “no more” in statute our were em- subsidiary in the as would action opinion phasized in that as we have em- an original They have been in suit. phasized quoting them in the statute above. suit, parties and, though to this Supreme said, they Court of had ei common interest to at defeat Texas action, 994: separate S.W. the main was a there controversy themselves, as between one “In before us case de- and, opinion, in our each impleaded should his fendants codefendant case, separate party title, deemed a in warranty upon prayed his and not as two defendants interested against him. His code- action, solely defeating plaintiff’s in liability ground- fendant denied 874; Crume, tiffs’ sue action. Plaintiffs did not party, .within but- one
and;,coíistituting. separate suit only joined-in but Crume not as construed the-statute meaning- the- i>f against consolidat- We which was recited. above the-- decisions by plaintiffs brought ed the suit therefore, conclude, there was by plaintiffs, in filed trial but the cause filed defendants’ allowing two error in Toomey to the cross-action of answer challenges.” peremptory each-Mx together him with a cross action antagonism between the Except 'f:or against plaintiffs Ralston Wilbanks. deféndants,'they with the Crume, were all made So before the issues to exercise been entitled would have up, brought by suit became a to the challenges under the peremptory Texas six plaintiffs. rule as announced in únáer our rulé and interesting "It in case that to note this supra. Cartwright, But Texas Morris v. Toomey because and Crume recovered right court denying the Statute had no plaintiffs, suit “the between number of chal- to increase the proceeded Toomey and Crume no furthér In that any' defendant. Texas lenges' to than pleadings.” Court, S.W.2d Supreme 309.] that which [246 case plaintiffs, appellants, insisted done, my opin- have been could not done Appeals Court of Civil action A ion, ours. stat- a statute under Toomey, owner, against the truck his driver is limit- says that the defendant ute which' One, purposes: was fictitious and for two no more cannot challenges and ed five peremptory challenges, to obtain twelve permit the properly, this be said Two, get the benefit of front in which plain- stranger to bring in a defendant Toomey appeared to asking judgment him of five tiff’s allowance causé "with against Crume. disadvantage of additional disadvantage is plaintiff; and such Toomey Since both and Crume became case. shown thoroughly satisfied with the small ver- they nothing in which received that many in Texas dicts more cases There are by way attempt by Toomey peremptory done of an the number of question agent Crume, sit- of his servant in different factual recover challenges is raised seem to be some uations, persisted has there would merit the rule but Texa.s appellants quoted contention of as to the just in the case from. action as .established Toomey against Crume. Toomey, Ralston Texas case of In the event Crume all defendants were could not supra, it is -found that have had way peremptory challenges plain- connected with under our persons in 'some six stat- *20 quotes, from possible, opinion majority, might be them, as The got unless ute statements Toomey, supra,.sortie! thereby Ralston cross-complaint be- by filing a Jackson, plaintiffs. In in Lofland v. Tex.Civ.App. party against made coming a 785, the case nothing of 237 S.W.2d Jn considering- ¡ are case we Lofland, a-single, wom just one Buna cited kind occurred. an, against R. filed suit E.,.Jackson refer- with may observed further Co., corpora Publishing Gen. Avalanche supra, Toomey, ence to Ralston v. tion, damages for in recover personal, its order refuge for court final took street juries suffered at a intersection following: Texas, Lubbock, claiming an automo will “As a rule a her. It was bile struck driven being in al- error employee court’s reversed for a trial Pub was an who Jackson peremp- additional refusing company lowing Company. publishing lishing complaining- unless the tory challenges seeking filed a cross-action Jackson mater- he has suffered any shows that him for which recovery from .amount He action. by the court’s injury ial favor might be obtained juror objectionable that an any, negli must acts of appellant show because court’s a result of the joined sat on the case as issue gence of Jackson Jackson. , cases.) (Citing by. publishing company filing action.” denial. general permit cases which many the Texas pub permitted, both the six of more than trial court -the allowance suit, Jackson,, -who w.ere parties company challenges lishing- peremp upon defendants, relied as to'have six has been just rule mentioned named each, thereby giving de To that to. for decision. tory challenges, the ultimate basis plaintiff . while objection under stat- no -twelve rule I would have fendants courts, only. cannot has Our Texas but it six (now rule) like that of was allowed ute challenges' in it the to defend application in our case because than five allow more ¿gainst ants make who everything, through his attor- plaintiff common-.cause! did -without plaintiff circumstances under prevent the al- ney, that could be done - the state statute1o'f positive violation peremptory chal- additional lowance- of opposing parties shall says that said, later, and, has been mo- lenges ; mqr.e-. This challenges each and -no. opportunity five tion, to cor- gave the court that'¡statute interpreted' properly grievous my thinking was a rect-what supra Cartwright, Morris v. [57.N.M. error.-' *21 376 Menshaw, ity, writing Bert Davis and W. each Compton O. 721],
258 Mr. P.2d Justice police department, dam- employee follows: for Justice, as before he became Chief Bergeron ages by for the death sustained in arbi- court erred think the “We personal injury him- of his wife and for The extending the statute. trarily car was by collision of a self caused a oppos- two party’ term ‘each means City driving police and car owned a controversy. Each side ing sides a captain Menshaw, night operated by and party and one constitutes city of city The of Port Arthur. challenges. peremptory limited to five against Port Arthur filed a action cross ‘whether By employing the term Menshaw, employees, in the Davis and its * * * opposite joined’ the single or A ac- against it. cross judgment event of required to plural, parties, are though and Menshaw also filed Davis tion was peremptory chal- join the exercise of Bergeron. The case appellant expressed here The view finds lenges. upon special jury issues was submitted to Mullery generally in the cases. accord fifty-six jury made answer to Co., Ry. 50 Mont. Northern v. Great they propositions. Among things Hansen, 323; 408, P. v. 148 Mourison appellant, plaintiff, and fixed an found 62, A.2d 136 A.L.R. 128 Conn. damages amount of the loss of because Transp. 413; Intermountain Ferron v. per- his wife and another amount his 388, 143 893.” Co., 115 Mont. P.2d injuries sonal amount for med- and another the Texas rule I cannot again assert ical treatment and another amount for dam- by this Court in this state followed with- age car, jury to his but also found amendment of our stat- judicial out state right way plaintiff yield failed to says parties that the the statute ute. When when where he should and that such action, single joined, shall to an whether proximate was the cause the col- failure peremptory challenges each five have The jury also found certain other lision. exactly I that to mean more take what plaintiff’s part which contribut- failures says. group No defendant or of defend- proximately injuries ed cause allowed ants should event be to have sustained. challenges than the statute more allows legislative change provi- without judg- court sustained a motion for The sion. ground on the that the ment for defendants Bergeron City plaintiff guilty Arthur, jury of various acts Port Tex. found Civ.App.1954, contributory negligence 264 S.W.2d caused suit was .city Arthur, .against municipal- of Port di- the collision and entered Rashti, Saunders, nothing. Harry plaintiff take Plain- Roberts sued recting that grounds Joseph for re- defend- appealed. One of Saunders. All of these tiff joined plaintiff. allowed ants that defendants issue with versal was they challenges when twelve Rashti filed a defendant counter- been allowed six. should property damages against claim for the de- peremptory chal- six having allowed Harry fendant Saunders and the defend- six each plaintiff and lenges to Harry Joseph ants Saunders and Saunders Davis and Menshaw rea- to defendants each filed counter-claims the de- city. brought of the cross-action son fendant Rashti. parties were made defendants these Now plaintiff grounds under our statute could not *22 and Several tor pre- reversal were challenges. additional argued have been'allowed sented and the defendants against whom was entered. The rule, with which coincides The Texas Court held that there were several revers- a group rule where Mexico New ible errors judgment. and reversed cause make common defendants of the One matters to which the court gave antagonistic no interests plaintiff and attention was peremptory that of challen- another, not be control- should one ges. The trial plaintiff court ruled that Mexico, in New persuasive or even ling to challenges n our entitled six and all defendants being so different from the statute together taken were entitled to six challen- statute, one now of the Texas former ges. The appeals court of errors and procedure. civil rules of (cid:127)state’s Jersey quoted the state, New statute of that majority toas reliance of the 1911,p. 220, Laws as follows: n peremptory v. Saun- challenges is Roberts any any issue in ‘Upon trial of “ ters, 118 A. N.J.L. any in court in this . suit or action civil in- plaintiff Roberts was In that case state, party shall be entitled each in At- along a street walking jured while peremptorily gen- six challenge just cross- Jersey. He had City, lantic New panel jurors summoned re- eral an automo- intersecting avenue when an ed ” by the sheriff or other officer.’ turned operated by Rashti ran one bile owned statute the court Considering the held him immedi- upon and struck the sidewalk Rashti was the defendant entitled between Rashti’s .ately following a collision challenges peremptory defend- six by Joseph owned automobile and the (cid:127)car Joseph Harry and Saunders were en- ants by the then driven defendant but Saunders challenges peremptory six between titled Harry Saunders. persons cases, them, two has been shown Texas .the latter It interests per- quoted that at common being, antagonistic. from law no. per- emptory challenges civil cases in require argument It sétem to would many is found in That declaration mitted. Jersqy New whatever .show that cases; in Texas is Roberts v. found interpretation, upon place mi^ht supra; is found in (N.J.), our Saunders .it of, entirely different that state statute supra. necessarily Cartwright, Morris v. . any possible of our stat- .construction statute, in this state unless a follows up At issue made ute. the trial of peremptory provides challenges in civil parties Jersey, contesting New each party cases for third defendants or others peremptory challenges is entitled to six may contesting any who issue collateral Jersey stat- under Our the'.'New statute. plaintiff, joined to .issues there no- peremptory challenges plain- ute allows' right. only, equal and- num- tiffs defendants ber, regardless of the number of brought Third into á or defendants.' this, may separate case such as call for trial. ' my opinion Jersey just the' New case plaintiff’s interest Having no cause of discussed is' Of no value whatever' de- action, person such a probably ap- termining many peremptory challenges how peal favorably trial to a court in requesting parties should be allowed to the in our case. power court exercise that the its under Rule Procedure, Rules of 42(b), Civil passed
Our statute long before a quote trial collateral I issue. third-party defendant was known New n n rule: . legislature Mexico and if has failed to provision make “The court in furtherance of con- *23 third-party any defendants or for others prejudice may venience or to avoid or- might any way who come into suits at separate claim, any der a trial of cross- law, that failure is not corrected claim, counterclaim, third-party, or the courts. (cid:127)claim, separate issue or of 2, chapter Section 2 of the Session Laws -any claims, cross-claims, number of provides, of 1875^6 as follows: counterclaims, claims, third-party ."In-all the courts in this state the issues.” common, recognized as- law- n United n I can America, shall be allowing .States- not concur in -additional practice -rule decision.” 21- peremptory challenges, express I my § dis- N.M.S.A;1953. 3-3, ,, sent. .