*1 P.2d RODGERS, Rodgers, Quentin Evelyn Compa Employers Insurance
American Company Employers
ny, Fire Insurance Compa Insurance American States Plaintiffs-Appellants,
ny, LOVING, Dale Hamilton and OF
CITY Williams, Defendants-Appellees.
James 2897.
No. New Mexico. Appeals
Court 29, 1977.
Nov. Sabin, Thompson,
R. E. Robert E. At- wood, Malone, Cooter, A., P. Mann & Ros- well, plaintiffs-appellants. Stout, Hobbs, and Dick A. Blen-
Lowell den, Carlsbad, defendants-appellees City and Dale Hamilton. Jay Caraway, W. Forbes and John M. Forbes, Carlsbad, for McCormick & defend- ant-appellee, James Williams. OPINION HERNANDEZ, Judge. appeal
This case involves an and a cross appeal. point The second of error on the appeal dispositive cross matter. *2 (d) defendants for the Whether activity sued the is not plaintiffs a mat- buildings their and ter wrongful usage; destruction of of common interruption of consequent contents and (e) Whether activity is inappropri- a verdict returned their business. on; place ate to the where it is carried City Loving of in their favor The defendant Dale Williams. and James (f) activity The value of the by the suit was dismissed from Hamilton community.” issue which will be the Court on an order of The second and third instructions above later. discussed nearly 519(1) are copies verbatim of § Hamilton, (an em- February On (Second) 520 of the Restatement of Torts § Loving) acting while City of ployee of orders, (aided Williams) was burn- under generally The rationale of the rule most grass on the weeds and dead which we question followed on mother, adjoins plain- which of Williams’ following: adopt, elect to is the spread plain- onto property. The fire tiffs’ potentialities of fire dangerous “The resulting in the destruction property, tiffs’ very early. recognized have been seem to interruption their of their of liability for Something approaching strict business. imposed upon land- apparently fire error on point The second * * early common law. holders trial court erred in appeal is that the cross giving the following instruction: [******] engaged “That defendants “The American courts . . have danger- abnormally
what is known as an consistently rejected rule, the older they engaged open activity when ous held, have in the absence legislation, city weeds in the limits of burning of that liability there is no for the escape of vicinity and in the of the build- fire where the defendant was not negli- Quentin Evelyn Rodg- ings owned gent. course, It is recognized, of that fire they strictly liable for ers and that dangerous thing, is a great and a amount if damage resulting therefrom even care required is in dealing with it. . burning care in the they exercised due utility But its great, is so and it is so operation. clearly use, sanctioned by universal [******] strict liability, even on the part of indus- enterprises, is not considered conve- abnormally carries on an “One who Prosser, nient or desirable.” W. The Law dangerous activity liability is (4th 1971) 77, of Torts ed. at 504. § person, harm the land or chattels resulting activity, another from the Even if we were to apply the rule of exercised the utmost care although he has liability strict as stated in 519 and § prevent such harm. (Second) Torts, of the Restatement su- [******] pra, the instant situation does present one of the factors necessary imposi- for the determining activity whether an is “In “inability tion: to eliminate the risk by the abnormally dangerous, following fac- exercise of reasonable care.” The trial tors are to be considered: giving court erred in the instruction on (a) activity Whether involves strict risk harm to the high degree of some others; land or chattels of person, To aid the trial court on the retrial of this (b) gravity of the harm Whether matter we will point comment on the first may likely result from it is to be appeal. error in the cross point This great; the doctrine sovereign immunity (c) elimina- precludes plaintiffs’ Whether the risk cannot be care; Loving. ted the exercise of reasonable 1974; “The February purpose modify of this act is to on fire occurred sovereign their suit the common-law
however, did not file doctrine plaintiffs fire, immunity providing permissive 28,1975. At the time of the July until pub- whereby method the state or a local 14-9-7, 1965 N.M.Laws Ch. body protect lic elect to itself and effect: employees personal officers from lia- be main- personal action shall “No *3 bility arising out of certain acts commit- against of this state any in tained during govern- performance ted the of municipality of any member or officer a mental activities and to proprietary and done, attempted to or any tort or act for compensate wrongfully the individuals done, authority of by the when done be harmed these actions.” of its in execution municipality or the cases, municipali- In all such the orders. 16 provides: Section or member responsible. Any be ty shall “The Li- Employees Public Officers and the may plead municipality of officer the ability apply any Act not does such bar of of this section in provisions against public a aris- employee officer or here- pending is now or whether it action ing before effective of the Pub- the date after commenced.” Employees Liability Act.” lic Officers and N.M.Laws, 3, 333, 1, the Chapter July 1 and The date of Act was effective §§ 1975, after the acts at issue had occurred. states: (The Act repealed Ch. § this act purpose The of 1. “Section N.M.Laws.) recovery a means for provide be shall death, or personal injury damages for of appellants cross contend that the em- damage, resulting from 3, N.M.Laws, Ch. and since §§ negligence, employee’s or ployer’s longer were in supra, no effect when this employ- of during the course occur [sic] suit filed and Public Officers and Em dis- state, county, city, for school ment ployees Liability apply, Act did not the institution, trict, district, public state sovereign law of immuni common doctrine officers, public corporation, or agency ty applied plaintiffs’ and was a bar suit. assistants, agents employ- deputies, not agree. We do ees.” rule, As a if general right is based may be maintained 3. Suits “Section statute, solely upon being no there such state, county, dis- city, the school against law, right at of repeal common institution, trict, district, public state right, the re statute abolishes unless state corporation of the agency, public or saving pealing statute includes clause or negli- involved for the persons has vested. right unless Southern Ser assistants, officers, deputies, gence Angeles County, Los Company vice employees or in the course agents such However, Cal.2d in however, no employment; provided, right litigant state the of a need this not state, run shall have vested but his claim must be contained district, district, city, state county, school IV, pending Article 34 of in a case. institution, agency corpo- public or public provides: New Mexico Constitution of “No liabili- unless there be the state ration right legislature act of the shall affect and cost to cover amount ty insurance remedy party, change of either judgment.” of such procedure, any pend rules of evidence or repealed effective of these sections case.” the 1959 1965 statutes All Since by Chapter repealed this ac July quoted above were before chapter however, the stat same case brought, tion was N.M.Laws. Em meaning Public Officers and within “pending included the not a case” utes 1-17, 1975 Act, when Liability Ch. the Constitution the statutes were ployees §§ purpose provision constitutional does repealed. 2 sets out the N.M.Laws. Section apply saving there is clause in act: of the SUTIN, Employees Judge Li- (specially concurring Public Officers the 1975 dissenting). nonetheless, Act; general rule is ability the new statute contin- where
inapplicable
I specially
judg-
concur in reversal of the
that it
of the old statute
policy
basic
ues the
ment
and dissent on
is,
language
though
even
That
repeals.
judgment against
reversal of the
Williams.
unqualified,
be
statute
repealing
aof
Quentin Rodgers
Plaintiffs are
Eve-
statute is
previous
substance
if the
lyn Rodgers (Rodgers),
owners of
one,
regard-
it will be
the new
continued
fire,
destroyed by
and three insurance carri-
statute, and
of the old
an extension
ed as
who paid Rodgers
proper-
ers
pending
although
not vested or
rights
ty damage and
for loss of earn-
prior
subrogated,
insurers were
ings.
The Public Offi-
will not abate.
in a case
paid,
rights
the amount
to all of the
Liability Act continued
Employees
cers and
recovery
Rodgers against
defendants.
sovereign
limited waiver
policy of
Rodgers sought recovery
in ex-
1 and
Chapter
immunity
§§
found
*4
policies.
limits of the insurance
cess
Haley,
McLain v.
N.M.Laws.
(1949);
Thomp-
Loving (Lov-
City
State v.
defendants
327,
3H place appropriate under sur- were saved an action already stored in an com- existing. then Ote- menced. No rounding proceedings circumstances further can be ro, supra. that an intentional fire had under a We hold statute which has been re- Rich, purpose, pealed.” which is land for a lawful Coffin v. 45 Me. on one’s usage, not “an Am.Dec. 559 activity of common is We do not have to because, activity” determine dangerous repealed whether the statutes abnormally incompatible. then were surrounding They circumstances have been laid under the could have been started rest. existing, the fire reasonable care. Under
and controlled with
We must determine whether POELA was
rule,
was not
Loving
in effect
applicable
to this case.
liability.
doctrine of strict
Section
reads:
5-13-16
palpable
I
it was
concur that
error
apply
any
does not
[POELA]
on strict
instruct the
public
employee
officer or
aris-
ing before the effective date of the [POE-
Loving
liable for
in ex-
B.
is
LA],
coverage.
cess of insurance
important
It is
note that
restric-
Plaintiffs,
legisla-
reason of
claimed
does not apply
public body.”
tion
to “a
It is
entanglements,
contend
tive
limited to “a public
employee.”
officer or
amount in excess of its insur-
liable for an
Gallagher
Metro., Etc.,
Albuquerque
14-9-7,
coverage. They claim that
ance
N.M.
(Ct.App.1977),
cert.
3) and
(Repl.Vol.
5-6-20
N.M.S.A.1953
§§
den.,
the common
support
jury’s
damages
verdict on
recovery against a
munity by permitting
$10,000.00?
the inadequate amount of
as well as
body
governmental
public
answer is
It
“no.”
provided
permissive
acts.
proprietary
whereby
public
the state or a local
method
(b) If substantial evidence sustains an
so,
if it desires to do
elect to
body may,
damages
$10,000.00,
award of
in excess of
itself from
5 — 13—
protect
Section
appellate
can the
grant
additur? The
2.
“yes.”
answer is
itself,
body
protect
may
To
local
elect
purchase liability
insurance or it
(a) There was no substantial evidence to
liability,
elect to
itself to
otherwise
support
inadequate jury
verdict
insurance,
(1) filing a
apart
from its
$10,000.00.
written notice of its election with
de-
Rodgers
suffered loss
fire of a build-
superintendent
and the
partment of finance
antique
and the contents of a bar and
insurance,
(2) by fixing
the actual
shop, together
earnings.
with loss of
liability up
to a maximum of
amount of
presented
evidence on the issue of
negligent
conduct. Section
5-13-8(B)
5-13-5(B).
judg-
“When a
by plaintiffs
and defendants
took four
.
.
.
sufficient
ment becomes final
forms:
budg-
shall be
money
pay
evidence,
Plaintiffs
introduced in
eted,
judgment ex-
if the amount
objection,
without
the General Alarm Fire
of the local
coverage
the insurance
ceeds
Report
Loving’s
Fire Chief.
It showed
body has
public body
public
or if the local
building
an estimated
loss of
subjected
liability pursu-
itself to
otherwise
$6,000.00.
an estimated interior
5-13-7.
Section
ant
[POELA].”
report
This
by Loving
an admission
[Emphasis added.]
*7
that
the estimated loss was twice the
pur-
It
Loving chose the first elective.
amount of the verdict of the jury.
$25,000.00
liability insurance.
It
chased
of
(2) Rodgers testified as to the value of
liability.
If
subject
elect to
itself to
did not
fire,
building
the
before and after the
the
$25,000.00 Loving
the
exceeds
inventory
value of the
and fixtures of the
excess amount.
budget
pay
the
shall
fire,
Loving bar before and after the
the
sovereign im-
grant Loving
POELA did
inventory
antique shop
value of the
of the
amounts in excess of
munity for all
fire,
after the
the
before and
value of the
legislature did not
coverage. The
insurance
personal property
premises,
stored on the
body from
public
to relieve a local
intend
$37,929.02.
which
The
all of
totaled
insur-
amounts of insurance
liability where small
companies paid Rodgers
ance
for the actual
legislature
If the
coverage were obtained.
loss,
$29,100.00,
the
the sum
an
value of
of
intended,
have re-enacted
so
it would
had
amount almost three times the amount of
repealed.
provided
Act
It
5-6-21 of the
jury
the
verdict.
that:
earn-
(3) Rodgers proved loss of business
The
companies
insurance
were subrogat
$4,343.95, $4,000.00 which was
ings of
ed to rights
Rodgers against
defendants
companies.
one of the insurance
paid
$33,100.00.
in the sum
“Subrogation
is a
cleaning and
proved consequential
He also
device
one party
is substituted for
re-
costs of
guarding
$762.27
$510.32
another.” Fireman’s F.A. Ins. Cos. v. Phil
spectively.
Carter,
A., Inc.,
lips,
&R.
tax
Rodgers’ income
(4) Loving produced
(1976).
P.2d 72
The insurance companies
val-
depreciated
the
that established
return
had an independent
claim
de
the
$14,000.00. Depreciat-
building at
the
ue of
$33,100.00
fendants in the amount of
paid
was not an
is not cash value.
It
value
ed
Rodgers. They
were entitled to recover
because
by Rodgers of cash value
admission
if they produced
defendants
sub
tax returns were unrelated
the income
support
stantial evidence to
their claim.
Mertens,
damages.
Law of Fd.
issue
The
that
jury found
Williams was negligent
23.04,
Taxation,
p. 13
Vol.
Income
strict
To recover
event,
any
depreciated
In
value
(1968).
for the
payments
Rodgers, the insurance
Even if
jury
excess of the
verdict.
was in
companies
establish
must
the extent
cash value
value showed a
depreciated
damage.
Casualty
Hardware Mut.
Co.
$14,000.00,
the con-
the value of
less than
Baldus,
Ill.App.
N.E.2d
business
building,
the loss of
tents of
consequential
costs would es-
earnings,
statutory
to be in excess
form of
tablish
a
fire
standard
jury verdict.
policy
provides
company
“.
.
Rodgers
insures
.to
the extent
support
there
Was
substantial evidence
cash
property
actual
value of the
at
$10,000.00?
only
verdict of
jury
a
”
loss,
the time of
.
.
Section 58-8-
property
qualified
to ex-
Owners
10(f),
2).
(Repl.Vol.
pt.
N.M.S.A.1953
opinion
property.
as to the
press an
value of
paid Rodgers
insurers
for
Ackerman, 82 N.M.
City Albuquerque
property destroyed
actual cash value of the
However,
opinion
P.2d 63
fire,
with
together
for loss of
expert
lay person
of a
or an
evidence
payments
earnings. These
were the maxi-
disregarded by the
or in
jury
be
in whole
coverage
mum
the insurance policies.
Phillips
if uncontradieted.
part even
payments
not made as an act of
Smith,
(Ct.App.
mistake,
compromise,
or in collusion with
Heesen,
1974); Lopez v.
Rodgers.
On his own claim dam-
conclusive,
Rodgers’ testimony is not
ages,
proved
also
by Rodgers
insurers
controlling
It is to be
binding
jury.
on a
fire,
the value of the
destroyed by
credibility.
testi-
weighed
Rodgers’
for its
together
consequential damages
with
standing alone would allow
mony
earnings,
loss of
exceeded the
paid
amount
$10,000.00on the
only
a verdict of
to return
Rodgers. Rodgers’
them to
tes-
opinion
loss.
timony, in the context of
independent
However,
in-
presented
where evidence is
insurance companies,
stands
establish a
opinion
evidence to
dependent
a different
It
position.
was sufficient
fact, and the
figure as a matter of
damage
support
recovery by
the insurers
uncontradicted,
wide lati-
evidence
paid.
amounts
arriving
granted
at
tude
Opinion evidence is a weak link
disappears. Undisputed evidence
figure
*8
necessary
chain of
evidence
to establish
accepted as true. Morris
Cart-
must be
fact when the claim is made by
party
the
It
wright,
314 mistaken, (authorities damage was has been It confirmed stand alone. not
does omitted). made insurers by payments corroborated testimony When the value. cash of actual A consistently applied like rule has been corroborated, the is adequately a witness by us where a remittitur or a new trial is impeachment to even is not witness sought upon a excess claimed award. on a statements made though untrue yet not awarded Additur has been v. Industrial Com- matter. Fish collateral New appellate Mexico court. mission, Ariz.App. inadequacy or Excess of the award alone does improper not reflect an motive the Rodgers that contention Defendants’ jury. evi- widely Verdicts differ where the tax return does by his income impeached damage precisely dence of the same. testimony as to value the not discredit his Jurors, per- though conscientious in their property. the err; they can over- formance of duties companies established The insurance damage fig- or estimate underestimate $33,100.00. This fact can- figure damage say ure. Were we to the verdict that itself jury being as doubt- be discarded motive, improper an every indicated case Plaintiffs in- speculative. nature or ful in susceptible would be a remittitur or addi- policy insurance evidence troduced tur But on reversal. in the instant case $25,000.00. coverage of Loving that showed to support jury’s there is no evidence at a jury arrived reasoning By what damages. compe- verdict on Yet there is plain- for all figure damage persuasive tent and that merits evidence an cannot because we remains a secret tiffs increased award. by the processes of the mental used inquire Unfortunately, court did not in- jury. jury “subrogation.” struct the on The jury that the insur- evidence is substantial position plaintiffs did not know $33,- companies suffered ance in this case. The trial record does not re- 100.00, damages of suffered Rodgers jury Rodg- flect knew that before earnings $1,616.54 for loss of above damages exceeding ers recover for could his reimbursement, costs, cleaning insurance coverage, compa- the insurance security expenses. payments nies must first be reimbursed for support evidence There Rodgers. made on instruction dam- $10,000.00. only Defend- verdict of jury’s ages plaintiffs entity. as one treated produced any nor no argument ants made 1 on Instruction No. the issues of the case contrary. to the evidence out, phrases yet has and sentences inked Perhaps clear readable. the instruc- case, appellate can (b) an In tions were not sent room. grant additur. The verdict of the 10 to stood corollary is a theory “additur” plaintiffs. Perhaps favor of the the jury “remittitur,” the former to increase compromised damage figure in order to verdict, inadequate the latter to decrease an conclude the case. applicable rule verdict. excessive through Whether improper motive or It is the same. additur and remittitur on damages, mistake in the measure of Blackwell, 77 so stated in Hammond jury’s palpable verdict was error. P.2d as there believes is a vast difference follows: between reduction an excessive verdict will not be dis- inadequate award An of an inadequate and an increase verdict appears unless it appeal turbed on Schiedt, on Dimick v. relies U.S. passion, prejudice, have resulted from cor- 55 S.Ct. L.Ed. A.L.R. influence some partiality, undue motive, The court under where there has held that cause rupt or the measure of Seventh Amendment the Constitution of palpable error been
315
States,
court, finding
the United
a federal
a manent injury
health,
or the value of a
inadequate
personal
verdict
in an action for
life. The damages are not liquidated and
injuries
negligence,
power
is
due
without
there can be no fixed measure of damage.
by refusing
grant
plain-
to add to it
This Court
step
cannot
in and take the
accept
tiff a new trial if the defendant will
place of
jury.
Wide latitude is allowed
suffi-
an increase which the court deems
the fact finder in fixing the amount of the
cient.
Baca,
734,
award. Baca v.
(Ct.App.1970);
997
Campbell,
Powers v.
79
binding
Amendment
is not
Seventh
302,
(1968).
jury’s verdict is
they
a number of cases
recognized
plaintiff
in
believe the
deserved more.
held or
in-
power
has the
to
damages
liquidated
appellate court
Where the
are
the
figure.”
higher
to the
verdict
proven,
crease the
discretion is
allowed. The
267
Court’s
duty
A.L.R.2d
have
Annot. 56
court and
Court
to award
or
amount of verdict
proven
increase
power
plaintiffs
grant
to
the amount
to
fail-
parties refusal or
over either
judgment
inadequate.
when
verdict is
An
additur
addition,
56 A.L.R.2d
power
consent to
act
appellate
ure to
court has
same
Vt.
Raleigh, 128
Quesnel v.
court,
In
judgment
as the trial
render
(1969),
said:
the court
A.2d
or
have
which the trial court could
should
capa-
Papertsian,
v.
309 N.Y.
liquidated
are
rendered. O’Connor
damages
When
465, 131
by accurate measure-
N.E.2d
jury could This case should be remanded to the trial provided than plaintiff judg- court with directions amend the the additur. Rodgers ment award plain- plaintiffs’ position, support $33,100.00. In insurance carriers following discussed tiffs cited and Angerman, Colo.App. Cole cases: D. against Cross-claims defendants su- (1972); Manger, Fisch each other were not decided below. Co., supra; Pacific pra; Jehl Southern against filed a cross-claim Williams Lov- Coopera- v. Mid-West Growers Drummond ing seeking indemnity for all loss or dam- authorities Corp., supra. tive Additional ages Loving primarily suffered because were cited. that allowed additur liable for loss or suffered response was that only Williams’ Rodgers. plaintiffs’ motion for denial of
granting or filed a cross-claim Wil- of the trial in the discretion additur rested indemnity liams for the alternative for that no clear abuse urged court and contribution. had on Reliance is was shown. discretion These cross-claims not submitted (1958) in Appeal and Error § 5A C.J.S. nor otherwise decided the trial there “Ordinarily, it is stated court. fore, by an verdict will not be disturbed ground that the dam court on the appellate yet Williams seek relief Lov- especially inadequate, ages awarded are on his cross-claim. approved by has the amount been
where refusing set court as
the trial This rule inadequacy.” aside for
verdict has
applies in those cases where fixing amount of dam
wide latitude Nei wants more.
ages, plaintiff and the appellate nor trial court
ther the