{ "id": 5326983, "name": "William K. HAMILTON, Administrator of the Estate of Tom Frank Hamilton, a Minor, Deceased, and William K. Hamilton, Individually, Plaintiff-Appellant, v. Rusty WOODWARD, Individually and as Fire Chief of the City of Lovington, New Mexico, and the City of Lovington, New Mexico, Defendants-Appellees", "name_abbreviation": "Hamilton v. Woodward", "decision_date": "1968-01-08", "docket_number": "No. 8305", "first_page": "633", "last_page": "634", "citations": [ { "type": "official", "cite": "78 N.M. 633" }, { "type": "parallel", "cite": "436 P.2d 106" } ], "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": "188 P. 1110", "category": "reporters:state_regional", "reporter": "P.", "year": 1920, "pin_cites": [ { "page": "1111" } ], "opinion_index": 0 }, { "cite": "26 N.M. 66", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8841354 ], "year": 1920, "pin_cites": [ { "page": "68" } ], "opinion_index": 0, "case_paths": [ "/nm/26/0066-01" ] }, { "cite": "77 N.M. 531", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2807201 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/77/0531-01" ] }, { "cite": "61 N.M. 3", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5317016 ], "weight": 2, "year": 1956, "opinion_index": 0, "case_paths": [ "/nm/61/0003-01" ] }, { "cite": "71 N.M. 31", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5349242 ], "weight": 2, "year": 1962, "opinion_index": 0, "case_paths": [ "/nm/71/0031-01" ] }, { "cite": "74 N.M. 263", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2802737 ], "weight": 3, "year": 1964, "opinion_index": 0, "case_paths": [ "/nm/74/0263-01" ] }, { "cite": "76 N.M. 52", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8500382 ], "weight": 3, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/76/0052-01" ] }, { "cite": "78 N.M. 411", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5320508 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/78/0411-01" ] } ], "analysis": { "cardinality": 306, "char_count": 4306, "ocr_confidence": 0.635, "pagerank": { "raw": 1.1870160721898311e-07, "percentile": 0.5904633822280758 }, "sha256": "ae26f07650786912ac2279a5b76f62086b85f8de58ce2736b9163f4760e64ef3", "simhash": "1:8bc9e19020ba0924", "word_count": 724 }, "last_updated": "2023-07-14T21:27:10.359171+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "CHAVEZ, C. J., and COMPTON, J.,. concur." ], "parties": [ "William K. HAMILTON, Administrator of the Estate of Tom Frank Hamilton, a Minor, Deceased, and William K. Hamilton, Individually, Plaintiff-Appellant, v. Rusty WOODWARD, Individually and as Fire Chief of the City of Lovington, New Mexico, and the City of Lovington, New Mexico, Defendants-Appellees." ], "opinions": [ { "text": "OPINION\nANGEL, District Judge.\nThis suit was brought in the district court of Lea County to recover damages for death by wrongful act. Plaintiff\u2019s intestate, Tom Frank Hamilton, seven years of age, was killed in a vehicle-pedestrian accident in Lovington, New Mexico, during a Christmas parade. The case was tried to the court without a jury. At the termination of plaintiff\u2019s case, the court granted defendants\u2019 motion to dismiss the complaint on \u25a0the ground that the evidence was insufficient to entitle plaintiff to recover.\nPlaintiff appeals, raising two points as grounds for reversal: (1) that the evidence was sufficient to establish a prima facie .case of negligence against defendants and the court erred in determining that the evidence was insufficient; and (2) that, as a matter- of law, the undisputed facts establish the negligence of defendants and judgment should have been entered by the trial court accordingly.\nNo findings of fact and conclusions of law were made by the trial court and none were requested by plaintiff.\nSection 21-1-1(41) (b), N.M.S.A.1953, provides that, in an action tried by the court without a jury, the court, as trier of the facts, may then determine them and render judgment against the plaintiff. It further provides that, if the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in Rule 52(a) (\u00a7 21-1-1(52) (B) (a), N.M.S.A.1953).\nUnder the circumstances in the instant case, is the trial court under a duty to make findings of fact and conclusions of law?\nSection 21-1-1(52) (B) (a), supra, provides under subsection (1) that \u201cthe court shall find the facts and give its conclusions of law pertinent to the case.\u201d Subsection (6) states that findings are waived unless a party makes \u201cgeneral request therefor in writing, or if he fails to tender specific findings and conclusions.\u201d\nEven though Rule 52(B) (a), supra, is stated in mandatory language, a party who has not requested the trial court to make findings on any given point may not obtain a review of the evidence on that point in this court. Kipp v. McBee, 78 N.M. 411, 432 P.2d 255; DesGeorges v. Grainger, 76 N.M. 52, 412 P.2d 6 (1966); Edington v. Alba, 74 N.M. 263, 392 P.2d 675 (1964); Gillit v. Theatre Enterprises, Inc., 71 N.M. 31, 375 P.2d 580 (1962); Owensby v. Nesbitt, 61 N.M. 3, 293 P.2d 652 (1956).\nWe said in Edington v. Alba, supra:\n\u201c* * * [T]his court, on appeal, will not consider whether the trial court erred in failing to make separate findings and conclusions where, as here, the complaining party neither tendered specific requests nor made a general request in writing. * * * \u201d\nWhere findings are waived under Rule 52(B) (a) (6), supra, this court will not consider whether the trial court erred in failing to carry out the mandatory language of Rules 41(b) and 52(B) (a) (1), supra. Guidry v. Petty Concrete Co., 77 N.M. 531, 424 P.2d 806 (1967).\nSection 21-1-1(52) (B) (a) (7), N.M. S.A.1953, provides that where the ends of justice require, the cause may be remanded to the district court for the making and filing of proper findings of fact and conclusions of law.\nIn the instant case, we do not have a question of a general public nature affecting the interest of the state at large, so as to make subsection 7, supra, applicable. DesGeorges v. Grainger, supra; Sais v. City Electric Co., 26 N.M. 66, 68, 188 P. 1110, 1111 (1920).\nPlaintiff-appellant\u2019s appeal is predicated on a review of the evidence, which we are precluded from doing, there being no facts or conclusions before us. Also, since plaintiff waived findings of fact and conclusions-of law by not requesting them in the trial court, he may not obtain a review of the-evidence in this court.\nThe judgment is affirmed, and it is so ordered.\nCHAVEZ, C. J., and COMPTON, J.,. concur.", "type": "majority", "author": "ANGEL, District Judge." } ], "attorneys": [ "Neal &-Neal, Tom W. Neal, Hobbs, for . plaintiff-appellant.", "- Lowell Stout, Hobbs, for defendants-ap-pellees." ], "corrections": "", "head_matter": "436 P.2d 106\nWilliam K. HAMILTON, Administrator of the Estate of Tom Frank Hamilton, a Minor, Deceased, and William K. Hamilton, Individually, Plaintiff-Appellant, v. Rusty WOODWARD, Individually and as Fire Chief of the City of Lovington, New Mexico, and the City of Lovington, New Mexico, Defendants-Appellees.\nNo. 8305.\nSupreme Court of New Mexico.\nJan. 8, 1968.\nNeal &-Neal, Tom W. Neal, Hobbs, for . plaintiff-appellant.\n- Lowell Stout, Hobbs, for defendants-ap-pellees." }, "file_name": "0633-01", "first_page_order": 673, "last_page_order": 674 }