{ "id": 2799106, "name": "T. Earl GARRISON, Plaintiff-Appellee, v. NAVAJO FREIGHT LINES, INC., a corporation, and Argene Putman, Defendants-Appellees, and Carlsbad Transit-Mix Cement Company, a corporation, and Lawrence E. Williford, Defendants-Appellants", "name_abbreviation": "Garrison v. Navajo Freight Lines, Inc.", "decision_date": "1964-05-11", "docket_number": "No. 7383", "first_page": "238", "last_page": "243", "citations": [ { "type": "official", "cite": "74 N.M. 238" }, { "type": "parallel", "cite": "392 P.2d 580" } ], "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": "67 N.M. 189", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2716293 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/67/0189-01" ] }, { "cite": "57 N.M. 253", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8841652 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/57/0253-01" ] }, { "cite": "66 N.M. 201", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2846032, 2846315 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/66/0201-02", "/nm/66/0201-01" ] }, { "cite": "49 N.M. 157", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8841502 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/49/0157-01" ] }, { "cite": "60 N.M. 166", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1590422 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/60/0166-01" ] }, { "cite": "67 N.M. 10", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2715080 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/67/0010-01" ] }, { "cite": "117 A.2d 675", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1953, "opinion_index": 0 }, { "cite": "37 N.J.Super. 529", "category": "reporters:state", "reporter": "N.J. Super.", "case_ids": [ 424938 ], "year": 1953, "opinion_index": 0, "case_paths": [ "/nj-super/37/0529-01" ] }, { "cite": "110 A.2d 24", "category": "reporters:state_regional", "reporter": "A.2d", "opinion_index": 0 }, { "cite": "17 N.J. 67", "category": "reporters:state", "reporter": "N.J.", "case_ids": [ 1341754 ], "opinion_index": 0, "case_paths": [ "/nj/17/0067-01" ] }, { "cite": "285 F.2d 939", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2003016 ], "opinion_index": 0, "case_paths": [ "/f2d/285/0939-01" ] }, { "cite": "211 F.2d 361", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 550208 ], "opinion_index": 0, "case_paths": [ "/f2d/211/0361-01" ] }, { "cite": "30 L.R.A.,N.S., 1088", "category": "reporters:federal", "reporter": "L.R.A.N.S.", "opinion_index": 0 }, { "cite": "110 P. 571", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": 0 }, { "cite": "15 N.M. 431", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 206023 ], "opinion_index": 0, "case_paths": [ "/nm/15/0431-01" ] }, { "cite": "91 A.2d 245", "category": "reporters:state_regional", "reporter": "A.2d", "opinion_index": 0 }, { "cite": "47 Del. 343", "category": "reporters:state", "reporter": "Del.", "case_ids": [ 451623 ], "opinion_index": 0, "case_paths": [ "/del/47/0343-01" ] }, { "cite": "8 Terry 343", "category": "reporters:state", "reporter": "Terry", "opinion_index": 0 } ], "analysis": { "cardinality": 534, "char_count": 9797, "ocr_confidence": 0.671, "pagerank": { "raw": 1.7832667433994128e-07, "percentile": 0.7137892981405479 }, "sha256": "55177afac014fc8c80b953f56e89cd82e459f8f219169f8c0bf3b40fa0d5eb7e", "simhash": "1:9384908fd1ae0010", "word_count": 1580 }, "last_updated": "2023-07-14T17:26:44.283414+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "COMPTON, C. J., and CHAVEZ, J, concur." ], "parties": [ "T. Earl GARRISON, Plaintiff-Appellee, v. NAVAJO FREIGHT LINES, INC., a corporation, and Argene Putman, Defendants-Appellees, and Carlsbad Transit-Mix Cement Company, a corporation, and Lawrence E. Williford, Defendants-Appellants." ], "opinions": [ { "text": "NOBLE, Justice.\nPlaintiff, Garrison, brought action for personal injuries sustained in an automobile accident against Navajo Freight Lines, Inc. (hereinafter termed Navajo) and Putman, its driver; Carlsbad Transit-Mix Cement Company (hereinafter termed Cement Company) and Lawrence E. Williford, its driver.\nNavajo and Putman settled plaintiff\u2019s claim against them for $75,000 taking a release, and a dismissal of the complaint against them. Cement Company had filed a cross-claim against Navajo and Putman which remained. The jury returned a verdict against Cement Company and Williford fixing plaintiff\u2019s damages at $63,000 after giving credit for the $75,000 received from Navajo and Putman. Judgment was entered pursuant to the verdict and thereafter the cross-claim was dismissed. Cement Company and Williford have appealed from the judgment entered pursuant to the verdict and from dismissal of their cross-claim.\nAppellants, Cement Company and Williford, argue that dismissal of their cross-claim against Navajo and Putman was prejudicial error because they assert that plaintiff\u2019s release failed to comply with an essential condition of the Uniform Contribution Among Tortfeasors Act. (\u00a7\u00a7 24\u2014 1-11 to 24-1-18, N.M.S.A.1953)\nSection 24-1-15 provides the conditions under which the injured person\u2019s release relieves a joint tortfeasor from liability for contribution, as follows:\n\u201cA release by the injured person of one [1] joint tortfeasor does not relieve him from liability to make contribution to another joint tortfeasor unless the release is given before the right of the other tortfeasor to secure a money judgment for contribution has accrued, and provides for a reduction, to the extent of the pro rata share of the released tortfeasor, of the injured person\u2019s damages recoverable against all the other tortfeasors.\u201d\nThe right of a tortfeasor to secure a money judgment for contribution does not accrue until he has either, (1) discharged the common liability of the joint tortfeasors by payment, or (2) has paid more than his pro rata share thereof. Section 24-1-12, N.M.S.A.1953. In this instance, Navajo and Putman paid plaintiff and took the release before Cement Company\u2019s right to secure a money judgment for contribution from Navajo and Putman accrued. Appellants, however, urge that plaintiff only released his \u201cclaim for damage\u201d to the extent of the pro rata share of the liability of Navajo and Putman, but did not expressly reduce his \u201cdamages recoverable\u201d as the act requires in order to release a settling tortfeasor from liability for contribution. We cannot agree.\nThe purpose of \u00a7 24-1-12 is to prevent the injured person from relieving one joint tortfeasor of the obligation of contribution except where he has also released the other tortfeasors from the pro rata share of the common liability. 9 Uniform Laws Annotated 245.\nGarrison\u2019s release recites:\n* \u201c * * * First Party does hereby reduce his claims for damage to the extent of the prorata share of the liability of Navajo Freight Lines, Inc., a corporation, and Argene Putman, their agents, servants and employees, for First Party\u2019s injuries and resulting . damages recoverable against all other tortfeasors.\u201d\nUnder express language of the Uniform Act, .the effect of the release of one joint tortfeasor upon the injured person\u2019s claim against remaining tortfeasors is to reduce it in an amount at least as great as the consideration paid for the release, and to a larger amount if the release so provides. This provision prevents a double recovery by the injured person. However, the Uniform Act protects the right of a non-settling joint tortfeasor to collect contribution from the one released unless the release provides for a reduction, to the extent mentioned in \u00a7 24 \u20141-14, N.M.S.A.1953, of the damages recoverable from the remaining tortfeasors. 9 Uniform Laws Annotated 163; Raughley v. Delaware Coach Co., 8 Terry 343, 47 Del. 343, 91 A.2d 245.\nThe release must, of course, be read as a whole and the intent of the parties gathered from the entire instrument and not from separate portions. Colorado Tel. Co. v. Fields, 15 N.M. 431, 110 P. 571, 30 L.R.A.,N.S., 1088; Phillips Petroleum Co. v. McCormick, (C.C.A.10) 211 F.2d 361; Fanderlik-Locke Co. v. United States, (C.C.A.10) 285 F.2d 939. When so read, we think it is clear that plaintiff intended to and did by the language employed, provide for a reduction, to the extent of the pro rata share of Navajo and Putman, of plaintiff\u2019s damages recoverable against Cement Company and Williford. Indeed, the legislature appears to have interpreted the terms \u201cclaim\u201d and \u201cdamages recoverable\u201d synonymously. In \u00a7 24-1-14, it is said that the release, under certain circumstances, has the effect of reducing the \u201cclaim\u201d of the injured person against other tortfeasors, while in \u00a7 24-1-15, the same right is spoken of as \u201cdamages recoverable.\u201d\nAppellants\u2019 contention that plaintiff\u2019s release of the joint tortfeasors Navajo and Putman had the effect of reducing the verdict against the remaining tortfeasors by the pro rata share of the settling tortfeasors does not require any change in the verdict for damages against appellants in this instance. We have discussed the provisions of statute and of the release executed by plaintiff to the settling tortfeasors. It was pointed out that the release specifically reduced plaintiff\u2019s claim against appellants by the pro rata share of' the liability of Navajo and Putman. The jury was so instructed and the verdict, under the court\u2019s instructions, was in the amount of $63,000 \u201cafter allowing for all sums paid by other defendants.\u201d Under the instructions and the verdict, the jury necessarily found'the damages to be $138,000. Appellants were given credit for more than the pro rata share of the settling tortfeasors of the total damages found by the jury. Since the pro rata share of the settling tortfeasors was less than the consideration paid for them for the release, the total damages found by the jury was reduced by the amount of the consideration paid in accordance with the provisions of \u00a7 24-1-14, N.M. S.A.1953.\nAppellants complain of the fact that the jury was advised of the $75,000 payment, the instruction that credit must be given for such sum, and that the jury could only return a verdict against Cement Company and Williford for such amount as they determined would compensate plaintiff after crediting the sum of $75,000. They rely strongly upon Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 110 A.2d 24, said to be the landmark decision on the amount by which a judgment against a non-settling tortfeasor should be reduced, and upon Smootz v. Ienni, 37 N.J.Super. 529, 117 A.2d 675. The New Jersey decisions are clearly distinguishable because the New Jersey Joint Tortfeasors Contribution Law of 1952 did not include in its statute sections 4 and 5 (\u00a7\u00a7 24-1-14 and 24-1-15, N.M.S.A. 1953) of the Uniform Contribution Among Tortfeasors Act, 9 U.L.A. 156.\nHaving determined that the release, in this case, was taken pursuant to the statute, \u00a7\u00a7 24-1-11 to 24-1-18, N.M.S.A. 1953, appellants\u2019 contention that the release of one joint tortfeasor releases all joint tortfeasors is without merit.\nAppellants argue that the court\u2019s refusal to give their requested instruction No. 21 constituted error, and rely on Lucero v. Torres, 67 N.M. 10, 350 P.2d 1028; Hanks v. Walker, 60 N.M. 166, 288 P.2d 699; Clay v. Texas-Arizona Motor Freight, Inc., 49 N.M. 157, 159 P.2d 317; Terry v. Biswell, 66 N.M. 201, 345 P.2d 217; and Stewart v. Oberholtzer, 57 N.M. 253, 258 P.2d 369, where we held it to be prejudicial error to refuse to instruct specifically on a litigant\u2019s theory of the case, provided such theory is pleaded and there is evidence to support it. The request would have instructed the jury that the driver of the cement truck was not negligent if his truck became disabled and he was making every effort to drive it off the traveled portion of the highway so as to leave a clear view and all possible width of the highway for the free passage of other vehicles. ' The tendered instruction, however, quoted \u00a7\u00a7 64-18-49 and 64-20-52, N.M.S.A.1953, both of which relate to disabled vehicles stopped on the highway. No evidence has been pointed out to us that the cement truck was stopped at the time of the accident. On the contrary, it appears uncontradicted that it was still moving slowly and did not come to a stop until some distance beyond the point of impact. We find no error in refusing the tendered instruction.\nFinally, appellants urge error by reason of the court\u2019s refusal to vacate the setting of the case for jury trial on August 20, 1962 and continuing the cause until after January 1, 1963. In Houston Fire and Casualty Insurance Co. v. Falls, 67 N.M. 189, 354 P.2d 127, we said that:\n\u201c * * * the matter of the continuance of a cause rests within the sole discretion of the trial court and will not be interfered with upon appeal, unless it appears that the trial court has abused its discretion. * * * \u201d\nFrom a review of the record, we cannot say that the trial court abused its discretion.\nIt follows that the judgments appealed from should be affirmed. It is so ordered.\nCOMPTON, C. J., and CHAVEZ, J, concur.", "type": "majority", "author": "NOBLE, Justice." } ], "attorneys": [ "McCormick, Lusk, Paine & Feezer, Carlsbad, for T. Earl Garrison.", "Atwood & Malone, Bob F. Turner, Roswell, for Navajo Freight Lines and Argene Putman.", "Keleher & McLeod, Russell Moore, Albuquerque, for appellants." ], "corrections": "", "head_matter": "392 P.2d 580\nT. Earl GARRISON, Plaintiff-Appellee, v. NAVAJO FREIGHT LINES, INC., a corporation, and Argene Putman, Defendants-Appellees, and Carlsbad Transit-Mix Cement Company, a corporation, and Lawrence E. Williford, Defendants-Appellants.\nNo. 7383.\nSupreme Court of New Mexico.\nMay 11, 1964.\nRehearing Denied June 16, 1964.\nMcCormick, Lusk, Paine & Feezer, Carlsbad, for T. Earl Garrison.\nAtwood & Malone, Bob F. Turner, Roswell, for Navajo Freight Lines and Argene Putman.\nKeleher & McLeod, Russell Moore, Albuquerque, for appellants." }, "file_name": "0238-01", "first_page_order": 290, "last_page_order": 295 }