{
  "id": 1575372,
  "name": "PAINTER v. SUTHERLAND et al.",
  "name_abbreviation": "Painter v. Sutherland",
  "decision_date": "1933-02-06",
  "docket_number": "No. 3696",
  "first_page": "113",
  "last_page": "115",
  "citations": [
    {
      "type": "official",
      "cite": "37 N.M. 113"
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    {
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      "cite": "19 P.2d 188"
    }
  ],
  "court": {
    "name_abbreviation": "N.M.",
    "id": 8835,
    "name": "Supreme Court of New Mexico"
  },
  "jurisdiction": {
    "id": 52,
    "name_long": "New Mexico",
    "name": "N.M."
  },
  "cites_to": [
    {
      "cite": "33 N. M. 626",
      "category": "reporters:state",
      "reporter": "N.M.",
      "case_ids": [
        1554446
      ],
      "weight": 2,
      "opinion_index": 0,
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    {
      "cite": "32 N. M. 431",
      "category": "reporters:state",
      "reporter": "N.M.",
      "case_ids": [
        1553033
      ],
      "weight": 2,
      "opinion_index": 0,
      "case_paths": [
        "/nm/32/0431-01"
      ]
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  "last_updated": "2023-07-14T15:19:46.739107+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "SADLER, HUDSPETH, and BICKLEY, JJ., concur.",
      "ZINN, J., did not participate."
    ],
    "parties": [
      "PAINTER v. SUTHERLAND et al."
    ],
    "opinions": [
      {
        "text": "WATSON, C. J.\nFor an assault committed upon him by one Williams, appellee recovered damages against Williams and against his codefendants, the Sutherlands, copartners by whom both Williams and appellee were employed. The copartners, employers, have appealed. The trial was to the court.\nAs the appeal was originally presented, sole, reliance was upon the proposition that Williams, in assaulting appellee, acted outside the scope of his employment, and that consequently there could be no liability on the part of appellants. This fatal defect in the cause of action is said to appear, first, in the complaint; and, second, in the evidence.\nAppellants are not in a position to urge the insufficiency of the complaint. They answered it and went to trial. They remind us that the insufficiency of a complaint to state a cause of action is not waived by failure to demur or by pleading over, and may be raised at any time. That principle is well known. It is not applicable, however, where, the defect being one of omission, the cause has gone to trial on the merits, and presumptively the defect in the complaint has been cured by evidence. *\nNor can we consider the claim that the defect in the complaint, if it existed, was not in truth cured by the evidence, and that there was no substantial showing that the assault was committed within the scope of employment. The trouble is that we have no findings or requested findings. By motions for judgment, appellants did raise the question. But there is no way by which we could determine the facts essential to the conclusion except by a general review of the' evidence. This is not our function, as we have uniformly held.\nAppellants urge that the trial judge, in overruling their motions, necessarily held that assault was committed in the course of the employment, that we should review the correctness of that holding, citing King v. Doherty, 32 N. M. 431, 258 P. 569, and that a judgment wholly unwarranted by the facts may be reviewed without exception or objection, citing In re Jaramillo\u2019s Estate, 33 N. M. 626, 274 P. 47. Those propositions we cannot accept.\nIn the first place, the court did not necessarily hold as claimed. He may have deemed the judgment supportable without a conclusion that Williams acted in the course of employment.\nIn the second place, the cases cited are not in point. In both of them the facts were fully found. The question was simply what conclusion of law or what judgment those facts required.\nBy supplemental brief, filed long after they had filed their reply brief, appellants seek to present the further point that, assuming Williams to have acted within the scope of his authority, the case is one for workman\u2019s compensation, .not one for damages. Appellee moved to strike this brief as untimely. Appellants in turn moved to strike appellee\u2019s motion. Decision of these motions was postponed until the cause should be taken up on the merits.\nPassing the propriety and policy of considering a question so tardily brought in, N. M. App. Proc. Rule XV, \u00a7 1, we think 'the lack of findings is again fatal to review. Appellants\u2019 last word is that, if Williams acted without the scope of his employment, they are not liable at all; if he acted within such scope, the liability is for compensation. Assuming this to be sound, the determinative question is the very question we find not to have been reserved for review.\nThus we are constrained to affirm the judgment. The cause will be remanded. It is so ordered.\nSADLER, HUDSPETH, and BICKLEY, JJ., concur.\nZINN, J., did not participate.",
        "type": "majority",
        "author": "WATSON, C. J."
      }
    ],
    "attorneys": [
      "Caswell S. Neal, of Carlsbad, for appellants.",
      "Zeb A. Stewart, of Harlan, Ky., for appellee."
    ],
    "corrections": "",
    "head_matter": "19 P.(2d) 188\nPAINTER v. SUTHERLAND et al.\nNo. 3696.\nSupreme Court of New Mexico.\nFeb. 6, 1933.\nCaswell S. Neal, of Carlsbad, for appellants.\nZeb A. Stewart, of Harlan, Ky., for appellee."
  },
  "file_name": "0113-01",
  "first_page_order": 137,
  "last_page_order": 139
}