{ "id": 1584739, "name": "ROSE et al. v. GRISOLANO", "name_abbreviation": "Rose v. Grisolano", "decision_date": "1952-01-05", "docket_number": "No. 5398", "first_page": "25", "last_page": "31", "citations": [ { "type": "official", "cite": "56 N.M. 25" }, { "type": "parallel", "cite": "239 P.2d 719" } ], "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": "55 N.E. 322", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "174 Mass. 586", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 17553 ], "opinion_index": 0, "case_paths": [ "/mass/174/0586-01" ] }, { "cite": "46 N.M. 421", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1563059 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/46/0421-01" ] }, { "cite": "55 N.M. 231", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582939 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/55/0231-01" ] }, { "cite": "164 A.L.R. 989", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 } ], "analysis": { "cardinality": 611, "char_count": 12647, "ocr_confidence": 0.664, "pagerank": { "raw": 6.087085966315723e-08, "percentile": 0.37699997181302847 }, "sha256": "ab4cbe3f03052c7ce5aa080340ca8ed8a67e455ca76cffc32005e5d608d070d1", "simhash": "1:bcf2eae026582d45", "word_count": 2151 }, "last_updated": "2023-07-14T17:57:58.477413+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "LUJAN, C. J., and McGHEE, COMPTON and COORS, JJ., concur." ], "parties": [ "ROSE et al. v. GRISOLANO." ], "opinions": [ { "text": "SADLER, Justice.\nThe appellants, who were plaintiffs below, appeal from a judgment entered by the district court of Bernalillo County in favor of appellee (defendant) Grisolano as cross-complainant- against -appellant Rose, as cross-defendant in the sum of $400. The recovery was for damages growing out of an automobile collision between cars owned by the plaintiff, Rose, and driven by him, with his coplaintiff, Murry, as a guest passenger and that of Grisolano, which was driven by an agent of his with whom he rode as a passenger at the time.\nSince counsel for appellees (plaintiffs) adopt appellants\u2019 statement of the case as set out on pages 1 to 6 of their brief in chief and as much of page 4 as sets out a colloquy between the Court and the jury upon the return of their verdict into court save the last paragraph which we shall add in order to make the colloquy complete, we shall employ appellants\u2019 recital substantially as our own statement of the case, supplementing it when necessary for completeness.\nOn the 19th day of July, 1950, plaintiffs C. E. Rose and O. L. Murry filed their complaint for damages, arising out of an automobile, accident which occurred on the 5th day of June, 1950. Suit was instituted in the district court of the County of Bernalillo, State of New Mexico, the same being docketed as Civil Action No. 44922.\nAppellant C. E. Rose prayed for One Thousand Five Hundred Dollars ($1,500) damages for personal injuries, all alleged to have been proximately caused by a collision with an automobile owned by defendant John B. Grisolano. It was alleged that Murry was a guest in the automobile driven by the plaintiff Rose, and that the defendant Grisolano\u2019s automobile, in which he was a passenger, was being driven by Arlene Ames. Thereafter, defendant, on the 8th day of December, 1950, through his attorneys, Waldo H. Rogers and Vance Mauney, of Albuquerque,, and Paul B. Palmer and James L. Brown, of Farming-ton, New Mexico, filed his answer denying plaintiff\u2019s allegations except as to the date and occurrence of the collision; setting up his first, second and third defenses, to-wit: failure to state a cause of action, contributory negligence of plaintiff C. E. Rose, and imputed contributory negligence as against plaintiff O. L. Murry. Further, defendant counterclaimed against both plaintiffs, asking for Eight Hundred Dollars ($800) in \u2022damages.\nOn the 20th day of September, 1950, plaintiffs and counter-defendants Rose and Murry, filed an answer of general denial to \u2022defendant and counter-claimant Grisolano\u2019s counter-claim. On September 20, 1950, defendant Grisolano filed a notice of waiver \u2022of jury trial, and thereafter, on the 26th \u2022day of September, 1950, plaintiffs filed their demand for jury trial. On the 2nd day of November, 1950, defendant filed his supplemental answer entitled Fourth Affirmative Defense, alleging contributory negligence on the part of plaintiff O. L. Murry. The issues were tried to a jury commencing \u2022on the 2nd day of November, 1950, and aft\u2022er the Court instructed the jury, five (5) .blank forms of special verdicts were submitted to the jury on the 3rd day of No.vember, 1950.\nAfter the reading of the verdict by the foreman and before discharging the jury, appellants\u2019 counsel approached the 'bench and pointed out the defects of the verdict to the Court, whereupon the Court inquired of the foreman as to the grounds and principle on which the verdict was based. The i Court\u2019s questions and the answers given by the foreman of the jury are set out in full as follows:\n\u201cThe Court: Mr. Sherer, you were foreman of the jury?; Mr. Sherer: Yes, \u2022 sir.\n\u201cThe Court: There seems to he some confusion. I wish to ascertain if the jury intended to hold in favor of the defendant in this case against both plaintiffs. Mr. .Sherer: We felt that both were partially to blame.\n\u201cThe Court: Your verdict was in favor of the defendant, Mr. John B. Grisolano, against the plaintiff, C. E. Rose, and assessed the damages in the amount of Four Hundred ($400.00) .Dollars. Did you intend to find against both plaintiffs and in favor of the defendant? Mr. Sherer: That is right.\n\u201cXhe Court: In order to clear up the matter, I will hand you a verdict to that effect. Mr. Sherer: We figured according to the evidence that' there , should be no penalty, it didn\u2019t show any cause or anything against the defendants, which we claimed were partially to blame.\n\u201cThe Court: Did you intend to hold against both plaintiffs in this case? Mr. Sherer: No, I beg your pardon ?\n\u201cThe Court: Did you intend to find that both of the plaintiffs -be denied from recovering anything, both of the plaintiffs? Mr. Sherer: Well, we figured if we found entirely against defendant that it would \u25a0show that he was not to- blame. We figured that Four Hundred ($400.00) Dollars was a fair figure of their percentage of blame.\u201d\n(Off the record discussion among Court and Counsel at the bar).\n\u201cThe Court: I will ask you in this case whether you found both the plaintiffs and the defendant were guilty of negligence? Mr. Sherer: We thought they were both guilty.\n\u201cThe Court: You thought both plaintiffs and defendant were guilty of negligence? Mr. Sherer: Yes, sir. Your Honor, not Mr. Murry. I understood that Mr. Murry wasn\u2019t to blame for that accident, but the drivers of the other two cars were.\n\u201cThe Court: I will take a poll o^each of the jurors. \u2018We, the Jury, find the issues in favor of the defendant and counter-complainant, John B. Grisolano, as against the plaintiff and counter-defendant, C. E. Rose, and assess his damages in the sum of \u25a0$400.00.\u2019 This, of course, means that the defendant, Mr. Grisolano, is entitled to a judgment against the plaintiff', Mr. Rose. You all understand that? As I call your names, answer yes if this is your verdict, and no if it is not.\u201d\n(Poll was taken, and all of the jurors answered in the affirmative with the exception of George P. Geake, who answered in the negative).\n\u201cThe Court: The Jury will be excused.\u201d\nCounsel for appellee also accept the statement of the case made by appellants. Accordingly, it is employed by us and is contained i'n the paragraph immediately following this one.\nAlthough evidentiary facts are not essential for a decision by this Court on the issues presented, such facts as appellants believe to be undisputed will be briefly summarized. Appellant C. E. Rose, on the 5th day of June, 1950, was driving his 1950 model Oldsmobile automobile in a northerly direction on Madeira Drive in the City of Albuquerque, New Mexico. Appellee John B. Grisolano, through his agent, Arlene Ames (Grisolano), was driving his 1950 Pontiac sedan, in which he was a passenger, in a westerly direction on East Central Avenue. Appellant O. L. Murry was a guest in plaintiff Rose\u2019s automobile and allegedly sustained permanent injuries as a result of the collision between the Rose and Grisolano automobiles, which collision occurred at the intersection of Madeira Drive and East Central Avenue in Albuquerque, New Mexico. Both cars were damaged.\nAt the conclusion of the evidence, the trial judge instructed the jury at length,, closing his instructions by submitting five possible verdicts as follows:\n\u201cI hand you five forms of verdict\u2014\n\u201cThe First: \u2018We, the Jury, find the issues in favor of the plaintiff, C. E. Rose, as against the defendant, and assess his damages in the sum of $-.\u2019 His damages could not exceed $1500.00, which is the amount he sued for.\n\u201cThe Second: \u2018We, the Jury, find the issues in favor of the plaintiff, O. L. Murry, as against the defendant, and assess his damages in the sum of $ \u2014 \u2014\u2014.\u2019 His damages could not exceed $15,000.00, which is the amount he sued for.\n\u201cThe Third: \u2018We, the Jury, find the issues in favor of the defendant.\u2019\n\u201cThe Fourth: \u2018We, the Jury, find the issues in favor of the defendant and counter-complainant, John B. Grisolano, as against the plaintiff and counter-defendant, C. E. Rose, and assess his damages in the sum of $-.\u2019 His damages could not exceed $800.00, which is the amount he sued for.\n\u201cThe Fifth: \u2018We, the Jury, find the issues against the plaintiffs and defendant.\u2019 \u201d\nThe'jury returned its verdict into court reading as follows : \u201cWe, the Jury, find the issues in favor of the defendant and counter-complainant, John B. Grisolano, as against the plaintiff and counter-defendant, C. E. Rose, and assess his damages in the sum of $400.00.\u201d\nAs soon as the jury\u2019s verdict was returned into court and read, counsel for the appellants (plaintiffs) moved the Court to return the jury for further deliberation, or in the alternative discharge the jury as unable to agree. The colloquy between the Court and jury set out above then followed at the conclusion of which the motion just mentioned was renewed by counsel and denied. Its denial is the primary ground upon which the appellants seek a reversal. If sustained, there is no occasion to consider and pass upon other claims of error assigned and argued.\nCounsel for both sides seem to agree that upon the return into court of a verdict the trial court may in its discretion inquire of the jury the grounds or principles upon which the verdict is based. Each cites 53 Am.Jur., 739, \u00a7 1067, \u201cTrials\u201d, as well as many cases dealing with the question. However, appellee\u2019s counsel remind us that it is a power to be exercised sparingly and with great caution as stated in the text cited, supra. It also seems clear from merely reading it that inquiries and answers thereto in the course of the present \u25a0 colloquy between the Court and the jury are not to be treated as answers to formal \u25a0 special interrogatories submitted to the \u2022 jury by the Court of its own motion or at \u25a0 the request of either party. We are referred by counsel to an annotation of the subject in 164 A.L.R. 989, in which many . cases are cited and discussed.\nWe are furthermore reminded by appellee\u2019s counsel of our recent decision in State 'v. Reed, 55 N.M. 231, 230 P.2d 966. We there held this Court is entitled to interpret ' the verdict by a reference to the whole record, especially the instructions given. But it would be impossible to aid or clarify this 'verdict by reference to the whole record, since we have only part of it, the entire bill of exceptions being omitted, though the instructions have been brought up.\nIt will profit little, however, to proceed further with a recital of the position of the respective parties on the exact nature of the colloquy which took place between Court and jury, since it discloses on its face so much confusion along with disregard of the court\u2019s instructions in certain particulars as to make it necessary to reverse the judgment rendered thereon and award a new trial. In the first place, it is obvious the jury applied the doctrine of comparative negligence in awarding recovery to defendant Grisolano against the plaintiff Rose on the former\u2019s cross-complaint. We do not recognize the doctrine of comparative negligence in this state, Gray v. Esslinger, 46 N.M. 421, 130 P.2d 24, and under the instructions given the jury could not properly award a recovery based thereon.\nIn the second place, although acquitting Murry, a coplaintiff, of all negliligence, the jury returned no verdict for or against him. He pleads that 'he suffered damages from injuries received in the sum of $15,000. There must have been evidence . supporting his cause of action, although absent before us, since the Court instructed on the issues as between-him and defendant. Hence, the failure to return a verdict as to his complaint cannot rest on the hypothesis that the jury considered him undamaged. We do not presume- to say whether he is entitled to recovery, or if barred by negligence, if any, imputed to him. That .was an issue as we glean from the instructions but the jury\u2019s verdict leaves him and his claim undisposed of, though his complaint is dismissed. It was error for the Court not to require a verdict on issues raised by the complaint and answer as between the plaintiff Murry and the defendant. Lovejoy v. Whitcomb, 174 Mass. 586, 55 N.E. 322; 53 Am.Jur. 719, \u201cTrial\u201d, \u00a7 1039.\nIt follows from what has -been said and in the interest of justice as between the parties that the judgment should he reversed and the cause remanded to the district court of Bernalillo County with directions to award a new trial.\nIt Is So Ordered.\nLUJAN, C. J., and McGHEE, COMPTON and COORS, JJ., concur.", "type": "majority", "author": "SADLER, Justice." } ], "attorneys": [ "Joseph L. Smith, Lorenzo A. Chavez, Albuquerque; for appellants.", "C. Vance Mauney, Albuquerque, Paul B. Palmer, James L. Brown, Farmington, for appellee." ], "corrections": "", "head_matter": "239 P.2d 719\nROSE et al. v. GRISOLANO.\nNo. 5398.\nSupreme Court of New Mexico.\nJan. 5, 1952.\nJoseph L. Smith, Lorenzo A. Chavez, Albuquerque; for appellants.\nC. Vance Mauney, Albuquerque, Paul B. Palmer, James L. Brown, Farmington, for appellee." }, "file_name": "0025-01", "first_page_order": 53, "last_page_order": 59 }