*2
PHILLIPS,
BRATTON,
Before
'
HUXMAN,
Judges.
Circuit
among those entitled
maintain an ac-
BRATTON,
Judge.
Circuit
tion. The second and third
sections
(cid:127)
N.M.Comp.St.1929, as
Section
original act were
addressed
the recov-
by chapter
Laws
amended
ery
compensatory
in other
person shall
provides:
“Whenever
wrongful death,
with
cases
certain
*3
from,
oc-
or
any
resulting
injury
from
die
changes
they
are
which
not material here
unskillfulness
by
negligence,
casioned
36-104,
are now
36-Í02
sections
and
N.M.
officer, agent,
any
or criminal
intent of
Comp.St.1929.
running, con-
employee, whilst
or
servant
defendant,
A
by
doing
truck owned
car,
locomotive,
managing any
ducting or
business under
the trade name Cain’s
any
any
driver of
train of
or of
or
Lines,
operated
duly
Truck
and
as a
au-
conveyance,
stage
other
coach or
thorized common carrier for hire between
driver;
charge
the same as
while
City
in-
Angeles,
and
Oklahoma
Los
and
in-
any
from
passenger shall die
and when
points,
an
termediate
and
automobilе
any
from,
by
resulting
jury
or occasioned
operated 'by
owned and
Doctor
M.
L.
railroad,
any
insufficiency in
or
or
defect
Paso, Texas,
Bowlby,
on a.
El
collided
thereof,
any
any part
locomotive or
or
public highway
Lordsburg,
near
New
car,
coach,
pub-
any
or
stage
or
Mexico,
morn-
about four o’clock in the
conveyance,
corporation,
individual
lic
ing.
instantly, and
The doctor was killed
any
individuals,
employ
such
or
officer,
in whose
surviving
brought
suit to
widow
this
employee, engineer
agent, servant,
$7,500
the sum
for the death
recover
driver,
inju-
shall
at the
such
or
be
time
her deceased husband and
for dam-
committed,
any
$800
ry was
or who owns
such
ages
charged neg-
to the automobile. She
car,
railroad,
locomotive,
stage coach, or
operation
ligence in the
of the truck. De-
public conveyance,
other-
at the time
negligence
denied such
and .al-
fendant
from,
received, resulting
is
or oc-
injury
leged contributory negligence.
The
by any
insufficiency
casioned
defect or
plaintiff
$7,500
for
a verdict
returned
for
declared,
pay for
shall
above
forfeit and
for the death of the deceased
every person
passenger
$600
dying,
or
so
damages
to the automobile. Refer-
sum of Seven Thousand
Hundred
Five
parties
made
will be
Dollars,
ence
may
recov-
which
be sued and
designated below.
first,
ered;
by
or
the husband
wife of the'
deceased;
second,
or
if there be no hus-
The
action fоr
cause of
she,
wife,
if
or
fails to sue
band or
or
he
predicated upon
deceased is
death of the
death,
six months after such
within
then
36-101,
penal
The
section
amended.
by
minor
de-
child or children of the
specified
sought,
plain
sum
is
therein
;
third,
or
if such
ceased
deceased be
exclusively upon
tiff
her claim
bottoms
unmarried,
then
minor
the father
Defendant contends that the
section.
mother;
fourth,
be
or
if
deceased
action,
any,
if
is not within
cause
twenty-one years
аge and unmar-
over
comes within section
section but
ried, by
dependent father
or
or mother
under
36-104 it
en
and that
section
is
sister,
dependent
may join
or
brother
who
representa
only by
personal
forceable
suit;
equal
and each shall have .an
By
the estate of
tive of
the deceased.
judgment;
if either of
interest
right
per
action
law a
common
dead,
In
them be
the survivor.
then
extinguished
injuries
with the
sonal
section,
under
suits instituted
this
it shall
person injured;
no civil ac
death .of
competent for the
de-
defendant for his
may
tion
be-maintained for
tort
result
to show that
fense
the defect or insuffi- ing in death. Mobile Life
Co.
Insurance
section,
ciency named in this
Brame,
754,
580;
v.
95 U.S.
24 L.Ed.
negligent
insufficiency.”
defect
199,
140,
Harrisburg, 119
7 S.Ct.
U.S.
30
358;
initially
Martin
&
v. Baltimore
The statute was
enacted in L.Ed.
Ohio
1882,
Co.),
(Gerling
R. R.
v. Baltimore & O. R.
gen-
was the first section of a
311;
673,
533,
14
38
wrong- 151
S.Ct.
relating
eral act
U.S.
L.Ed.
originally
Central
R. v.
Michigan
Vreeland,
death. As
R.
227
ful
enacted if au-
417,
192,
recovery
$5,000.
59, 33
By
thorized the
S.Ct.
L.Ed.
U.S.
Cas.1914C,
Ann.
176;
Louis,
Ry.
St
I. M. &
of 1931 the
sum
S.
amendment
authorized
Craft,
704,
$7,500,
U.S.
deрendent
increased
v.
L.
1160;
Atchison,
dependent
Romero v.
T.
father or mother or
brother or
Ed.
S.
Ry.
an
11 N.M.
37.
sister of
unmarried
the F.
P.
deceased over
Sec
twenty-one years
derogation
age
tion 36-101 is
included
com
759;
strictly
Monticel
N.H.
72 A.
Burton v.
therefore to
mon law
Ky.
Turnpike Co., 162
Atchison,
S.
lo & Burnside
&T.
v.
construed. Romero
144;
Max
Loan 173
Commonwealth
Cattle
Co., supra;
Paso
Ry.
El
F.
well,
825, 16 A.L.R.
271 Pa.
114 A.
157, 228 P.
Hunt, 30 N.M.
v.Co.
1134;
Buck,
N.
Ind.
Gaiser
part of the
pertinent
Tp.
Equality
Star
E.
A.L.R.
person dies
in which
limited
cases
In
Tp.,
re
200 Minn.
274 N.W.
by the
or occasioned
injury caused
Barnes,
Ac
212 N.C.
194 S.E.
in
criminal
negligence,
unskillfulness
Cooper, 168 Okl.
me Oil & Gas Co. v.
em
officer,
agent,
tent of an
.servant
Cooper, 47
33 P.2d
Pellish Bros.
op
company while
ployee
a railroad
H.
Wyo. 480,
In
P.2d
Jerome
loco
managing a
conducting or
erating,
*4
Remick &
American Automobile
Co. v.
a driver
motive,
or
of
car
train
411,
Co., Cir.,
A.
40
Accessories
6
5 F.2d
convey
public
other
stagecoach “or
of a
556,
denied,
1511,
269 U.S.
L.R.
certiorari
as such
charge thereof
in
ance” while
409,
19,
was held that
46 S.Ct.
70 L.Ed.
it
language “or
general
the
driver. Does
broadcasting by
profit
a
radio for
of
truck
conveyance” cover a
public
other
infringed
copyrighted
composition
musical
freight?
carrier of
engaged as a common
statutory copyright
though
even
ra
designated classes
enumerated or
Where
developed
dio was
after
enactment
fol
in
statute are
persons
things
a
of
Act.;
Copyright
Fox Film
of the
in Re
words,
must be
latter
by general
lowed
461,
514,
Corporation,
145
64
295 Pa.
A.
reasonably
things
persons or
confined
499,
requiring
A.L.R.
a statute
that
well-recog
That is the
kind.
of
same
.the
approval of
the state board of censors
generis. Grafe v.
ejusdem
nized rule of
picture
applied
display a motion
film
“to
150,
Max
228 P.
Delgado, 30 N.M.
spoken
production
language,
of
al
562,
Connelly, 34 N.M.
well Lumber Co.
processes
pro
though
of
the Movietone
others,
many
it
64. But
like
287 P.
spoken
ducing
language films
in
were
be used
construction to
merely
rule
of
statute;
in
vented aftеr enactment of
legislative
ascertaining
in
an aid
Lines,
Stage
N.
Haselton
Interstate
82
283,
Anaya,
210
28 N.M.
State v.
intent.
218,
451,
327, 133 A.
that
H.
47 A.L.R.
Ornelas,
42 N.M.
74
State v.
P.
relating
person engaged
in
a statute
P.2d 723.
applied
transportation by
motor vehicle
companies operating
high-powered
enactment of
the time of the
At
capacious
catering
long
unknown.
busses
dis-
statute in 1882 trucks were
transportation, despite
legisla
that
tance
the fact
It
therefore
manifest
transportation
specifically
at
such
was unknown
could not have had them
ture
statute;
And
was amended in time of
enactment of the
in mind.
the statute
Iowa,
Johnston,
Transfer
had
and were a in Bruce
Co. v.
trucks
become
after
carrier,
providing
type of
and the amend
that a statute
common
287 N.W.
expressly
might
brought against any
include them or
rail-
ment did not
an action
corporation,
stages,
of
change the kinds or classes
the owner of
road
otherwise
recovery
any county
had.
coaches or
in
for which
could be
line of
cars
torts
passed
matters.
road or line
through
was concerned with other
which such
It
prospective
operated applied
company engaged
in char
to a
statute is
was
But
scope
operation
comprehensive
freight
in
in re
of
in the
trucks
semi-
acter and
damages
type upon
recovery
for
a fixed
spect
trailer
schedule and
operation
regular
although
in
route
kind
resulting from tort
over a
-cars,
lоcomotives,
stagecoaches
transportation
being long
or oth
came into
Moreover,
conveyances.
general
it is
was
And
the statute
enacted.
er
after
Mallory
statutes that
v. Pioneer
Southwestern
construction of
in
rule in the
general
Stages,
in
and com
this court reviewed
enactments
F.2d
legislative
oper
terms,
prospective in
and said that a motor
en-
prehensive
statute
bus
this
transportation
persons, subjects
passengers
and busi
ation, apply
gaged in the
public conveyance
general purview and
was a
within
their
hire
nesses within
meaning. Motor busses were unknown
scope, though coming into existence aft
its
enacted,
language
but
fair
time the statute was
passage, where the
at
their
er
manifestly
Arthur,
concluded that
ly
them. Newman v.
the court
includes
stagecoaches
sufficiently similar
L.Ed.
Pick
3 S.Ct.
were
U.S.
scope.
Merritt,
fairly
within its
That
U.S.
come
hardt v.
upon
Noyes,
placed
the statute
McMillan v.
was
construction
L.Ed.
transportation
passengers
hire
legislature
ago.
years
ten
almost
upon
thoroughfares.
in-
regular
property
used
has convened
New Mexico
predominant part
was
has neither The
of the business
then, and it
tervals since
passengers,
property also
transporting
indi-
but
nor otherwise
amended the statute
transported.
into
was
their
construction.
Since
advent
disapproval
such
its
cated
transportation,
have
field of
trucks
taken
original
transportation
engaged
been
in
Atchison, T.
Romero v.
Missouri.
upon
property
highways
thor
hire of
Emphasizing
Co., supra.
Ry.
S. F.
oughfares. That
the business of de
upon
fact,
lays
the case
stress
defendant
fendant and was
to which the
it
the use
Depot
R.
Drolshagen v. Union
question
put.
though
Even
held
it was
which
Mo.
penal
-and in
the statute is
in character
motorman
a streetcar
tort of
derogation of the common law
re
thus
scope
stat
within
did not come
construction,
gen
quiring
being
strict
its
the time of
that at
ute for the reason
comprehensive
to the
eral
recovery
motormen
streetcars
enactment
for death caused
long
was decided
That case
unknown.
locomotive, car,
operation
tort
of a
adopted New
been
after
had
the statute
public conveyance,
stagecoach, or other
re
entitled to
therefore is
Mexico.
spectful
ap
being prospective
operation,
and
plies
control
consideration
*5
by
wrongful
tо death occasioned
the
where
stat
ling
that
a
the doctrine
under
operator
engaged
the
act of
of a truck
as
will
adopted
another state it
from
ute is
may
carrier
a common
for hire.
It
previ
presumed
construction
that the
suggested
sound
in this connection
no
that
upon
by
courts of that
ously placed
it
the
liability
limiting
exists
the
of
reason
adopted.
case
The
of Whit
is also
state
mer
engaged
truck
com
the owner of a
as a
Cir.,
Co., 5
W.
El
& S.
Paso
$7,500
wrongful
сarrier for
death to
mon
as the court
does
defendant
F.
not aid
the owner of
truck
while
otherwise used
respect
in
to a
merely
railroad
held that
damages in such
liable for compensatory
confined
ac
company the statute
to
was
jury may
court or
sum as the
fix.
op
in
by
tort
the
tions for
caused
proffer
suggestion
its own answer.
seems to
or car or
and
eration of
locomotive
legisla
question
policy
is a
of
for the
That
application where death was
had no
ture, not the courts.
through
by falling
hole in
rail
caused
bridge or trestle. And
road
Farmers’
Defendant contends
is not
that he
Hanks,
National Bank v.
Mechanics’
liable
the reason
at
of
that
the time
1120, Ann.Cas.1914B,
Tex.
operated
being
the accident the truck was
clearly distinguishable.
There the by
person.
an unauthorized
In violation
providing
that
court held
that an
defendant,
agent
the
of
rule
in
of
the
maintained
action could be
charge
brought
truck
of the
driver
one
by
negligence
death was caused
where
Angeles
from
Knight
permitted
Los
and
proprietor, owner,
or carelessness of
operate
part
Knight
it
him to
of the time.
railroad,
of
charterer or hirer
steam
at
wheel when the
was
took
accident
boat, stagecoach, or other vehicle for the
charge
place,
agent in
asleep.
and the
was
passengers,
conveyance
goods
of
did
operated
being
the truck was
But
for the
recovery
nоt
for death
authorize
caused
of
agent
defendant. The
benefit
was in
operation
negligence in the
an ele
charge
and was
it on
it
the business
privately
building.
vator in a
owned
But
principal.
supervise
his
He failed
to
pointed out that
it
statute was
was
or control the conduct of his substitute
agencies
apply
and
to
to
carriers
meant
transporting
prior
immediately
to the accident. He did
goods
passengers
and
from
action, protest
with
not intervene
origin to a
point of
more or
dis
direc
some
tant
less
destination,
might
and
when
point
that
either
have
there
tion
avoided the
did not come
merely
fore an elevator
within it.
had
If he
abandoned
collision.
asleep
fallen
or had
driving
wheel
while
“locomotive”, “car”,
The words
gone
had
the truck
left side
and
“stagecoach”
words of
and
are
well-known
and thus caused the
the road
accident de
They refer to and
signification.
include
clearly be
would
fendant
liable. Thеre is
corporations
agencies
quasi public
and
en
difference
substantial
between that sit
no
public in
gaged
serving
the trans
point
liability.
and this
passengers
De
goods.
uation
portation
Stage
and
pioneer days
escape
cannot
engaged
be heard
liabil-
coaches
were
in fendant
ity
ground
Knight
on
approached
was at the
truck
keep
it did
seem to
not
wheel
agent
charge slept
while the
be
straight
course
meandered
City weaved;
side him in thе
Geiss
Twin
cab.
lights
its
bobbed
dimmed;
Taxicab
120 Minn.
N.W.
not
deceased dimmed
Lozier,
L.R.A.,N.S.,
195 lights
pulled
right;
that as the
Jones
Knep
Iowa
approached
N.W.
Grant
pull
she told him to
far-
per,
245 N.Y.
54 A.L.R.
156 N.E.
right
ther to
give
the truck all the
Miller,
Creamery
Hendler
Co. v.
possible;
room
that he did so but
Md.
Daley,
A.
Gates v.
Cal.
straight
truck came
at
them and bore
App. 654, 202 P.
upon them;
down
and that deceased did
apply
his brakes.
was
There
oth-
no
It
urged
that the court commit
er direct evidence
respecting
whatever
ted error in refusing
jury
to submit to the
speed of
automobile,
or the manner of
question
contributory negligence
operation except
its
given
Knight
operation
deceased in the
the au
effect that
wrong
was on the
contributory
tomobile. Two elements of
road,
ju'ry rejected
side of the
and it.
negligence were pleaded driving the au
—
there
And
no
testimony
wrong
high
tomobile on the
side of the
the distance between the
vehicles
two
at
way,
driving
it at an
rate of
excessive
thе time the truck crossed
the left side
speed. The
inwas
conflict
evidence
road,
deceásed had time to
whether the truck
automobile
stop
slow or
the automobile
the truck
after
on
wrong
side of the
The court
road.
danger
apparent.
crossed
became
spe
submitted that issue in the
of a
form
driving
cannot be said that the
au-
interrogatory1
cial
inquiring on which side
forty
forty-five
tomobile
miles
place.
the.
took
an
collision
per
presented
hour under
thе conditions
swered that it
on
occurred
north side.
safety
here
inconsistent with the
*6
right
That was the
side of the automobile
proper
highway,
use of
that the
the
de-
or
and
left
the
side of
truck. Thus the
Jhe
ordinary
failed to exercise
ceased
care in’
issue of
the
operating
automobile on the
slowing
stopping
not
or
the automobile.
highway
wrong side of
squarely
the
was
words,
In other
there
no substantial
was
against
and
submitted to the
resolved
evidence from which it could
reasоn-
be
defendant.
ably
speed
inferred that
auto-
the
the
respect
In
driving
to the
of the
safety
mobile was inconsistent
the
with
speed,
automobile at an excessive rate of
proper
any
and
use
the road or had
pertinent part
chapter
the
of section
accident, or
connection with the
causal
Laws of
section
N.M.
ordinary
by
care and
that
the exercise
Supp.1938, provides
passenger
that
auto
should have slowed
prudence deсeased
or
may
operated
speeds
mobiles
be
at such
the
it became
automobile after
stopped
as shall be consistent
all
times with
at.
use of the roads.
crossing
to
apparent
that
the
was
safety
proper
and the
wrong
of the road.
follows
side
upon
.Defendant relies
the time consumed
properly refused to submit
the court
that
Paso,
coming
in
from El
the extent of
jury.
the'issue to the
damage
automobile,
to the
or
marks
gashes
highway,
Defendant
furthеr
contends
circumstances in
plaintiff
to sue
dicating
distance the
was
authorized
automobile went
collision,
capacity
damage
physical
after
her individual
for the
and
con
in
daugh
ditions
circumstances
automobile. Plaintiff and a
tending
as
to estab
to
oil-top
negligence.
highway
lish
sole heirs of deceased. He
was ter
wide;
making
bequest
cash
eighteen feet
had
a will. After
it
shoulders each left
rest,
wide,
bequeathed
he
daughter,
from
to four feet
two
and white tо
center;
its
and
and remainder of his estate
line down
there was
residue
slight
curve
he named her as inde
point
double
in
at the
of his wife. And
pendent executrix with direction that no
the accident. The
evi
uncontradicted
per
security
required
dence
that the automobile
in
or other
was
was
bond
condition,
her,
county
any
only
and the
and that
court or
fect mechanical
relating
speed
probating
in
will
direct
its
court
should
evidence
was other
respect
going
forty
between
no action in
it was
estate ex
take
forty-five
per
require
cept
making
miles
hour. Plaintiff testi
and return of
line;
inventory, appraisement
she saw the white
fied that
an
list of
probated
right
it;
were on. the
side of
as the
The will
in
claims.
Texas;
County,
any person
shall die
“Whenever
county
Paso
court of El
from,
any injury
or
qualified
resulting
in-
occasioned
appointed
plaintiff
' executrix;
by
negligence,
or crimi-
inven-
unskillfulness
she filed an
dependent
claims,
any officer, agent, servаnt or
and nal intent of
appraisement,
list
tory,
employee,
conducting or
September,
running,
whilst
approved them
the court
locomotive, car,
any
or train of
paid
managing
all debts
in full
she has
cars,
any
any stage coach
bequest
driver
or of
and the cash
estate
public conveyance,
inwill
while
making of such a
or other
daughter. The
* *
driver;
expressly
charge
statute.
authorized
same as
Texas is
Statutes,
Civil
Article
Revised
quoted provi-
observed that the
It will be
can
independent executrix
an
And such
persons
(1)
two classes of
sion embraces
—
estate
anything in
to the
do
officer,
servant,
agent,
employee
any
order
do under
administrator
could
an
running, conducting,
managing
while
court,
Lovejoy,
county
Cockrell
of the
car,
locomotive,
any
or train of
affirmed,
Tex.Civ.App., 44 S.W.2d
stage
any
driver of
coach or other
(2)
1009, including
Tex.Com.App., 63 S.W.2d
conveyance
charge
while in
of the
property be-
making
distribution
question pre-
precise
same as
driver.
heirs or devisees
longing
the estate to
sented,
then,
of a
is whether
driver
authority or sanc-
specific judicial
without
tion,
operated
being
freight
truck which was
Knox,
Tex.Civ.App.
Parks
within
a common carrier
hire falls
payment
After
130 S.W.
phrase
any stage
“driver of
coach or other
bequest, plaintiff as
and the cash
debts
public conveyance.”
all
residuary legatee became entitled to
statute,
derogation
being
This
of com-
belonging
prоperty
the estate.
law,
strictly
mon
construed.1
must
independent executrix she had
And as
IV,
Art.
Mexico
of the New
Sec.
her-
authority
convey it to
power
provides:
Constitution
legatee.
individually
Com-
as such
self
amended,
“No law shall be revised or
supra;
Lovejoy,
Parks
pare
Cockrell
provisions
thereof extended
refer-
Knox, supra.
transfer
writ-
No formal
only;
ence to its title
but each section
ing
against defendant
of this claim
revised, amended
extended
thereof as
suit
required. Her assertion
this
set out in full.”
shall be
must be
right
such claim
to enforce
existing
an
statute is
implied
Where
amended
constituting an
as-
(cid:127)construed as
*7
portions
original
act
certain
individually as
signment
herself
thereof to
act, such
carried into the amended
áre
legatee.
regarded
portions
a continuation
are
as
no
remaining contention is that
law and not
a new enact
existing
to
competent
introduced
evidence
ment,
given
are to be
same mean
dаmage
to the
prove the amount of
amendm
ing and effect
had before the
automobile,
finding
jury
1931 amendment
ent.2
It follows
support, and
respect
without
change
meaning
and effect of
did
judgment
for
entering
the court erred
stage
phrase
of any
“driver
coach or
stop
evi-
to delineate the
do not
it. We
conveyance.”
public
other
question.
suffices
It
relating to
dence
phrase
public
enough
agree
in kind
“other
say
it was
that we think
I
to
conveyancеs
conveyance”
to make
is not limited to
enable the
quantum to
original
approximation.
the time the
in use at
and reasonable
fair
.a
enacted,
my
that it should be
is
view
is affirmed.
judgment
conveyances
analogous
like
to
limited to
Judge (dissenting).
PPIILLIPS, Circuit
stage
convey
A
a
stage
coach is
coach.3
a
place
regularly from one
running
36-101, N.M.Supp.1938,
part ance
Sec.
employed chiefly
transpor
for
another
.reads:
456,
Company, 394 N.Y.
Hunt,
1
87 N.
surance
Loan
v.
30
El Paso Cattle
Co.
v.
771; People
Lloyd,
769,
304 Ill.
157,
E.
888.
228 P.
N.M.
536; People
505,
566,
23,
v.
A.
Thompson Mossburg,
2
N.E.
W.
103
136
Ind.
v.
208,
Co.,
310,
Ill.
191
357
N.E.
Wiebolt &
N.E.
Huff
139 N.E.
689, 690,
789.
Fetch,
93 A.L.R.
Ind.
N.E.
Drolshagen
Depot
Chicago
Foley,
City
v. Union
R.
See
335 Ill.
344; Mallory
85 S.W.
Mo.
N.E.
State ex rel.
Stages,
Inc., 10
Pioneer Southwestern
Daues, 321 Mo.
34 S.W.2d
Dean v.
Cir.,
Homnyack
Cain v. Bowlby
114 F.2d 519
10th Cir.1940Check TreatmentAI-generated responses must be verified and are not legal advice.