Theresa SAIZ, a Minor, by Her Mother and Next Friend, Emma Saiz Waite, and Emma Saiz Waite, Individually, Plaintiffs-Appellants, v. CITY OF ALBUQUERQUE and Frederick Ford, Defendants-Appellees.
No. 603.
Court of Appeals of New Mexico.
June 25, 1971.
487 P.2d 174
It follows from what has been said that the judgment of the court below must be reversed and remanded with instructions to dismiss the complaint.
It is so ordered.
SPIESS, C. J., and HENDLEY, J., concur.
Richard A. Bachand, Smith, Ransom & Deaton, Albuquerque, for plaintiffs-appellants.
William S. Dixon, James C. Ritchie, Rodey, Dickason, Sloan, Akin & Robb, Albuquerque, for defendants-appellees.
OPINION
HENDLEY, Judge.
Theresa Saiz, a minor, was injured when an automobile, driven by an Albuquerque policeman, collided with the automobile in which she was riding. The Mother, as next friend, brought suit against the city and the policeman. On a motion for summary judgment the trial court dismissed the suit as to the City of Albuquerque on the ground that
We affirm.
At oral argument the constitutionality of
Our opinion considers the relationship of
”Actions for injuries by state vehicles against operator—Provisions of policy—Waiver of governmental immunity—Release of claim in excess of policy limit.—No action shall be brought or entertained in any court of this state against the state or any of its institutions, agencies or political subdivisions for injury or damage caused by the operation of such vehicles, but the action for any such injury or damage shall be brought against the person operating such vehicle at the time of the injury or damage. Every policy of insurance upon such vehicles shall contain a provision that the defense of immunity from tort liability because the insured is a governmental agency or an employee of a governmental agency, or because thе accident arose out of the performance of a governmental function, shall not be raised against any claim covered by such policy. Provided the claimant, or plaintiff in the event suit is instituted, shall file with the insurеd and the company issuing such policy of insurance a release in writing of any amount of such claim in excess of the limit stated in the policy, and a further statement that any such release shall not be construed as an admission of liability, nor may it be offered in evidence for any purpose, and that no attempt may be made in the trial of any case to suggest the existence of any insurance which covers in whole or in part
any judgment or award in favor of the claimant.”
Because the constitutionality of
For purposes of our discussion we also assume the еxistence of liability insurance coverage for this accident. If there was no coverage there could be no suit against a political subdivision of the State. Montoya v. City of Albuquerque, 82 N.M. 90, 476 P.2d 60 (1970); Chavez v. Mountainair School Board, 80 N.M. 450, 457 P.2d 382 (Ct.App.1969). With the assumption that there was liability coveragе, the issue of this case is whether the City of Albuquerque may be joined as a party with the policeman.
We think not.
It is plaintiffs’ position on appeal that in enacting
We do not agree. Repeals by implication are not favored and are not resorted to unless necessary to give effect to an obvious legislative intent. Buresh v. City of Las Cruces, 81 N.M. 89, 463 P.2d 513 (1969); State v. Lujan, 76 N.M. 111, 412 P.2d 405 (1966). At issue is the effeсt of those provisions which deal with general liability of the State and its subdivisions, and the one provision which deals solely with vehicular liability. We are committed to the rule of statutory interpretation that a general aсt later enacted does not affect an earlier special act. State v. Blevins, 40 N.M. 367, 60 P.2d 208 (1936). In these situations the specific provision is considered an exception to the general act. State v. Lujan, supra.
Another approach taken by plaintiffs is that
Conceding arguendo that in fact
Plaintiffs query “why should the state and its municipalities be immune from suit in only actions involving negligence arising from the operation of motor vehiclеs.” Our answer is that there is nothing unreasonable per se in such classification and the Legislature is vested with wide range discretion in selecting and classifying. Romero v. Tilton, 78 N.M. 696, 437 P.2d 157 (Ct.App.1967).
We need not consider these, for, as we have discussed above, those sections are general provisions which do not cover the fact situation before us.
Affirmed.
It is so ordered.
WOOD, J., concurs.
SUTIN, Judge (dissenting).
I respectfully dissent.
The City of Albuquerque relied upon
Section 64-25-9 is unconstitutional. The title of the Act, Laws 1941, ch. 192, reads as follows:
An Act Authorizing the State Board of Finance to Dirеct the Purchase of Public Liability and Property Damage Insurance Upon All Cars Owned and Operated by the State of New Mexico
The title only authorized the purchase of insurance upon all cars owned and оperated by the state of New Mexico.
Section 64-25-9 leaves the title of the Act by the wayside. It moves into areas of litigation, immunity, release of excess claims, and evidence.
It does not require citation of extensive authority that under Article IV, Section 16 of the New Mexico Constitution, any subject matter not expressed in the title of the Act is void. Gallegos v. Wallace, 74 N.M. 760, 398 P.2d 982 (1964).
City of Albuquerque v. Campbell, 68 N.M. 75, 358 P.2d 698 (1960), held the statute constitutional, limited to the attack made on it. It held the title of the Aсt, referring to “All cars owned and operated by the State of New Mexico,” was broad enough to include “political subdivisions,” which in turn includes municipal corporations. See State ex rel. State Highway Comm. of New Mеxico v. Town of Grants, 69 N.M. 145, 364 P.2d 853 (1961), which states that the question of immunity was not raised in Campbell.
The only issue is whether the constitutionality of
The only pertinent pleadings in the record are the complaint, defendants’ motion to dismiss, and judgment of dismissal on the basis of
Courts of review are dedicated to the protection of the constitution and dеvoted to the principle that “Justice, Justice shalt thou pursue.” This court has the inherent power to prevent fundamental injustice. Gonzales v. Rivera, 37 N.M. 562, 25 P.2d 802 (1933). The Supreme Court has often chosen to decide cases on theories not fоllowed by the trial courts. “The proper function of this court is to correct an erroneous result rather than to approve or disapprove the grounds upon which it is based.” State Highway Com‘n v. Ruidoso Telephone Co., 73 N.M. 487, 389 P.2d 606 (1963).
There is a consistent rule that “a trial court will not be reversed if the result be correct, even though the result may have been based upon a wrong reason.” Rein v. Dvoracek, 79 N.M. 410, 444 P.2d 595 (Ct.App.1968). On the other hand, we may reverse the trial court if the result of a motion to dismiss is incorrect based upon a wrong reason. Pankey v. Hot Springs National Bank, 44 N.M. 59, 97 P.2d 391 (1939).
Since Law is Justice, we have a duty to determine the constitutionality of
Furthermore, questions of constitutionality of an act creating a crime may be raised for the first time on appeаl. The reason is that “* * *. If the law is void, no crime has been committed and none can be committed under it, and the court has no jurisdiction over the person of the defendant or the subject-matter of
The same rule should аpply to the defense in this civil case. If
There are three exceptions to the rule which allow this court to determine questions of law for the first time on appeal: (1) when jurisdictional questions are involved; (2) when questions are presented of a general public nature affecting the interest of the stаte at large, and (3) when it is necessary to protect the fundamental rights of the party. DesGeorges v. Grainger, 76 N.M. 52, 412 P.2d 6 (1966).
A review of New Mexico decisions cited in DesGeorges, and other citations, will establish that each of these questions are involved here. Exceptions (2) and (3) were added by the Supreme Court in the interest of justice. Mitchell v. Allison, 54 N.M. 56, 213 P.2d 231 (1949). Although plaintiffs come within the three exceptions, a fourth exception should be added.
During trial, there are good reasons for not reviewing matters not passed upon. Fullen v. Fullen, 21 N.M. 212, 153 P. 294 (1915). In the absence of trial, no good or substantial reason has been given for refusing to decide statutory constitutional questions first raised on appeal from a judgment of dismissal based upon a motion.
This situation should constitute a fourth exception to the rule.
Should an aggrieved party suffer the pain of defeat in the motion stage of procedure before trial because a statutory constitutional question was not presented by plaintiffs in somе manner in the trial court? This is a manifest sense of injustice.
State ex rel. Burg v. City of Albuquerque, 31 N.M. 576, 249 P. 242 (1926), says:
Constitutional questions, not raised in the regular and orderly procedure in the trial, are ordinarily rejected * * *, unless the jurisdiction of the court below or that of the appellate court is involved, in which case it may be raised at any time or on court‘s own motion. [Emphasis added].
This rule was followed in some succeeding cases. Miera v. State, 46 N.M. 369, 129 P.2d 334 (1942).
I feel compelled to call this matter to the attention of the public so that lawyers will raise the issuе of constitutionality. If the statute is declared unconstitutional, citizens will find relief under
For the above reasons, I dissent.