{ "id": 2871870, "name": "John Dee READ, Plaintiff-Appellant, v. WESTERN FARM BUREAU MUTUAL INSURANCE COMPANY and Dwight M. Mazzone, individually and as agent for Western Farm Bureau Mutual Insurance Company, Defendants-Appellees", "name_abbreviation": "Read v. Western Farm Bureau Mutual Insurance", "decision_date": "1977-04-12", "docket_number": "No. 2785", "first_page": "369", "last_page": "377", "citations": [ { "type": "official", "cite": "90 N.M. 369" }, { "type": "parallel", "cite": "563 P.2d 1162" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "83 N.M. 316", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5340589 ], "weight": 2, "pin_cites": [ { "page": "319" }, { "page": "536" } ], "opinion_index": 0, "case_paths": [ "/nm/83/0316-01" ] }, { "cite": "84 N.M. 38", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2772521 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/84/0038-01" ] }, { "cite": "82 N.M. 355", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5331724 ], "weight": 2, "year": 1971, "pin_cites": [ { "page": "358" }, { "page": "61" } ], "opinion_index": 0, "case_paths": [ "/nm/82/0355-01" ] }, { "cite": "72 N.M. 80", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2855463 ], "weight": 2, "year": 1963, "opinion_index": 0, "case_paths": [ "/nm/72/0080-01" ] }, { "cite": "43 N.M. 348", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1568238 ], "weight": 2, "year": 1939, "opinion_index": 0, "case_paths": [ "/nm/43/0348-01" ] }, { "cite": "59 N.M. 492", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1589309 ], "weight": 2, "year": 1955, "pin_cites": [ { "page": "503" } ], "opinion_index": 0, "case_paths": [ "/nm/59/0492-01" ] }, { "cite": "81 N.M. 600", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5367350 ], "weight": 2, "year": 1970, "opinion_index": 0, "case_paths": [ "/nm/81/0600-01" ] }, { "cite": "68 N.M. 175", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2719711 ], "weight": 2, "year": 1961, "pin_cites": [ { "page": "186", "parenthetical": "Justice Moise, dissenting" }, { "page": "379", "parenthetical": "Justice Moise, dissenting" } ], "opinion_index": 0, "case_paths": [ "/nm/68/0175-01" ] }, { "cite": "71 N.M. 364", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5347111 ], "weight": 2, "year": 1963, "pin_cites": [ { "parenthetical": "driving or riding" }, { "parenthetical": "driving or riding" } ], "opinion_index": 0, "case_paths": [ "/nm/71/0364-01" ] }, { "cite": "80 N.M. 224", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5358560 ], "weight": 3, "year": 1969, "pin_cites": [ { "parenthetical": "all only while contained in or attached to such buildings or structures" }, { "parenthetical": "all only while contained in or attached to such buildings or structures" } ], "opinion_index": 0, "case_paths": [ "/nm/80/0224-01" ] }, { "cite": "84 N.M. 550", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2762179 ], "weight": 2, "year": 1973, "pin_cites": [ { "parenthetical": "accidental" }, { "parenthetical": "accidental" } ], "opinion_index": 0, "case_paths": [ "/nm/84/0550-01" ] }, { "cite": "84 N.M. 779", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2764926 ], "weight": 2, "year": 1973, "pin_cites": [ { "parenthetical": "practicing" }, { "parenthetical": "practicing" } ], "opinion_index": 0, "case_paths": [ "/nm/84/0779-01" ] }, { "cite": "68 N.M. 162", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2720279 ], "weight": 2, "year": 1961, "pin_cites": [ { "page": "171-72" } ], "opinion_index": 0, "case_paths": [ "/nm/68/0162-01" ] }, { "cite": "69 N.M. 336", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2787029 ], "weight": 2, "year": 1961, "pin_cites": [ { "page": "343" }, { "page": "524" } ], "opinion_index": 0, "case_paths": [ "/nm/69/0336-01" ] }, { "cite": "77 N.M. 118", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2807299 ], "weight": 2, "year": 1966, "pin_cites": [ { "page": "120" } ], "opinion_index": 0, "case_paths": [ "/nm/77/0118-01" ] }, { "cite": "76 N.M. 261", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8501763 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/76/0261-01" ] }, { "cite": "235 S.W.2d 726", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10211204 ], "weight": 2, "pin_cites": [ { "page": "729" } ], "opinion_index": 0, "case_paths": [ "/sw2d/235/0726-01" ] }, { "cite": "317 P.2d 123", "category": "reporters:state_regional", "reporter": "P.2d", "weight": 2, "year": 1957, "pin_cites": [ { "page": "124" } ], "opinion_index": 0 }, { "cite": "84 N.M. 211", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2766687 ], "weight": 5, "year": 1972, "pin_cites": [ { "page": "260" } ], "opinion_index": 0, "case_paths": [ "/nm/84/0211-01" ] } ], "analysis": { "cardinality": 1018, "char_count": 20738, "ocr_confidence": 0.79, "pagerank": { "raw": 2.246336391685977e-07, "percentile": 0.7807026587264354 }, "sha256": "87132bce67eb42443811560e363b0b95f97130c343d0627492a12d345d85471c", "simhash": "1:c024fdef50c4cdfb", "word_count": 3482 }, "last_updated": "2023-07-14T21:34:48.706767+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HERNANDEZ and LOPEZ, JJ., concur." ], "parties": [ "John Dee READ, Plaintiff-Appellant, v. WESTERN FARM BUREAU MUTUAL INSURANCE COMPANY and Dwight M. Mazzone, individually and as agent for Western Farm Bureau Mutual Insurance Company, Defendants-Appellees." ], "opinions": [ { "text": "OPINION\nSUTIN, Judge.\nPlaintiff sought reformation of a general farm liability insurance policy issued by Western Farm Bureau Mutual Insurance Company (Western Farm) to include therein family medical insurance coverage. In addition, plaintiff sought damages based on negligence, breach of contract and fraudulent misrepresentation. Summary judgment was granted Western Farm and plaintiff appeals. We reverse.\nA. On the claim for reformation, a genuine issue of material fact exists.\nPlaintiff contends, on his claim for reformation of the Western Farm insurance policy, that the doctrine of reasonable expectation applies as stated in Pribble v. Aetna Life Insurance Company, 84 N.M. 211, 501 P.2d 255 (1972). Western Farm contends that plaintiff had no reasonable expectation because a check of the face sheet would alert any layman that he did not have medical coverage. It is Western Farm\u2019s position that the policy in question, particularly the face sheet, is clear, plain and without ambiguity; and, therefore, plaintiff is chargeable with knowledge of its terms.\nThe question for decision is:\nIs there a genuine issue of material fact on whether the insurance policy issued by Western Farm was clear, plain and without ambiguity?\nOn April 24, 1974, Dwight M. Mazzone (Mazzone), a sales agent for Western Farm, discussed various insurance coverages with plaintiff. Plaintiff asked for a liability insurance policy that included family medical coverage, and specifically told Mazzone that plaintiff wanted coverage that would pay medical expenses for accidental injury to himself and members of his family.\nMazzone assured plaintiff that the policy purchased would contain family medical coverage without limitation as to the amounts of benefits payable thereunder. Plaintiff relied on Mazzone, purchased the insurance and paid the premium.\nPlaintiff received the insurance policy by mail. Plaintiff examined the policy and noted paragraph III of section , one, which was \u201cCOVERAGE D \u2014 MEDICAL PAYMENTS (Premises and Employees)\u201d. This paragraph provided for medical payments \u201cto or for each person who sustains bodily injury caused by accident; while such person is: 1. on the insured premises with your permission\u201d. Plaintiff believed that this described the type of insurance requested, and plaintiff assumed that the policy had been issued in accordance with Mazzone\u2019s assurance.\nParagraph IV of section one was \u201cCOVERAGE E \u2014 Medical Payments (Named Insured and Family)\u201d. From the affidavit and depositions of plaintiff and his wife, we have no knowledge whether plaintiff read this paragraph.\nOn the face sheet of the policy, plaintiff noticed the word \u201cNIL\u201d typed several times under all coverages specified, except \u201cGeneral Farm Liability.\u201d The premium for this coverage was $37.20. Under \u201c5. FAMILY MEDICAL PAYMENTS \u2014 E. LIMITS E\u2014 PREM.\u201d appeared the word \u201cNIL\u201d.\nPlaintiff was 19 years of age with a high school education. He swore that he could not find a definition of \u201cNIL\u201d in the policy. He had no idea what it meant and no one had explained it to him.\nAfter plaintiff suffered an accidental injury, Western Farm denied liability.\nThe word \u201cnil\u201d is a contraction of \u201cnihil\u201d, and \u201cnihil\u201d means \u201cnothing\u201d.\nWe have discovered only two cases that discuss the use of the word \u201cnil\u201d in an insurance policy. Treadwell v. Pacific Indemnity Company, 154 C.A.2d 853, 317 P.2d 123 (1957); Alamo Cas. Co. v. Richardson, 235 S.W.2d 726 (Tex.Civ.App.1950).\nIn Treadwell, the insured argued that the typewritten word \u201cnil\u201d should apply to limits of liability, rather than to coverage. The Court said:\nIn more technical approach, the word \u201cnil,\u201d a contraction of nihil, means \u201cnothing\u201d (Webster\u2019s New International Dictionary, 2d ed.). To state that \u201cThe liability of this Company shall not exceed nothing\u201d is by no means to say that the liability is unlimited. We are aware that it is hardly realistic to apply standards of good English usage to the language of an insurance policy. Policy jargon is at least as painful to the purist as the language of judicial opinions. Nonetheless, we are convinced that the word \u201cnil\u201d in its context here cannot be given the meaning urged by appellant. [Emphasis added.] [317 P.2d at 124]\nIn Alamo Cas. Co., cited in Treadwell, the Court held that the word \u201cnil\u201d as used in a clause of the policy which read \u201c $ Nil On automobiles being driven over road to point of destination selected by the insured as the place of storage of such automobiles\u201d, would be construed to mean that the policy did not insure against such loss, and not as meaning that no limitation as to amount was imposed on liability for such loss. The Court said:\n(A) The test of the constructions proposed by the parties is the intention expressed in the policy, and the only evidence of this intention now before us is the language of the policy. The parties did not pray for equitable relief, and they did not attempt to prove that language in the policy had a meaning different from the meaning which would ordinarily be attributed to it. [Emphasis added.] [235 S.W.2d at 729]\nWe gather from the above cases that in an equitable action, if the insured attempts to prove that the word \u201cnil\u201d is of doubtful meaning, an ambiguity may exist in the insurance policy.\nIn the instant case, the claim for reformation of the insurance policy was an equitable proceeding. Buck v. Mountain States Investment Corporation, 76 N.M. 261, 414 P.2d 491 (1966).\nThe question that presents itself is whether the use by Western Farm of \u201cNIL\u201d, the meaning of which plaintiff did not understand, renders the policy vague and ambiguous.\n\u201cLanguage is ambiguous when its meaning is doubtful or when it has a double meaning.\u201d Foundation Reserve Insurance Co. v. McCarthy, 77 N.M. 118, 120, 419 P.2d 963 (1966). In an insurance policy, language used is a means of communication, and a word used in an insurance policy is often a \u201cbone of contention\u201d. This is a metaphor taken from two dogs fighting for a bone. Decade after decade, with regularity, the insured and the insurer fight for a bone, which includes the meaning of a word, a phrase or ap provision of the insurance policy.\nIn each case where a \u201cbone of contention\u201d exists over a word in an insurance policy, that word has different meanings to the insured and insurer, because \u201c \u2018A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.\u2019 \u201d Quoted in Jernigan v. New Amsterdam Casualty Company, 69 N.M. 336, 343, 367 P.2d 519, 524 (1961); Harp v. Gourley, 68 N.M. 162, 171-72, 359 P.2d 942 (1961). In each case, we take the word or phrase and construe it liberally to protect the insured. Mountain St. M. C. Co. v. Northeastern N. M. Fair Ass\u2019n, 84 N.M. 779, 508 P.2d 588 (1973) (practicing); King v. Travelers Insurance Company, 84 N.M. 550, 505 P.2d 1226 (1973) (accidental); Foundation Reserve Insurance Co., supra (struck; by); Ivy Nelson Grain Co. v. Commercial U. Ins. Co. of N. Y., 80 N.M. 224, 453 P.2d 587 (1969) (all only while contained in or attached to such buildings or structures); Fowler v. First National Life Insurance Co. of America, 71 N.M. 364, 378 P.2d 605 (1963) (driving or riding).\nThe reason is that the insurer prepares the policy. Its sales agent, generally, is schooled in the art of salesmanship. The insured most often is a layman, the average man or woman on the street, who is not a college graduate or a student of insurance law. These insureds are persons who do not seek legal advice to determine whether insurance coverage has been afforded when the coverage and the premium paid are modest. They cannot, ordinarily, read and understand the complex, complicated and intricate provisions of an insurance policy in words of fine print that ambles along the way. They rely on the representations of the sales agent.\nThese facts are also the reasons why a word, a phrase, or a provision in a contract of insurance is not what the insurer intended the language to mean, but what a reasonable person in the position of the insured would have understood them to mean, and any ambiguity will be construed liberally in favor of the insured. Ivy Nelson Grain Co. v. Commercial U. Ins. Co. of N. Y., supra. The trial court below and this Court understand the meaning of the odd contracted Latin word \u201cNIL\u201d as used in the policy, and we know that coverage of medical payments, limited to premises and employees, does not cover medical payments for the named insured and family, but we must not impose this knowledge on the public. When we say that a word will be given its ordinary meaning, we do not include \u201codd\u201d words, peculiar words, contracted words, Latin words, or words that are not a part of speech or writing. We mean words ordinarily used in the common speech of men and women. Black\u2019s Law Dictionary 1195 (Rev. 4th ed. 1968) defines NIHIL:\nLat. Nothing. Often contracted to \u201cnil.\u201d The word standing alone is the name of an abbreviated form of return to a writ made by a sheriff or constable, the fuller form of which would be \u201cnihil est\u201d or \u201cnihil habet,\u201d according to circumstances.\nWe must recognize the admonition of Justice Moise sixteen years ago when he said that \u201c. . . the better rule is to not require of an insured something we know as a practical matter is not ordinarily done, namely, that he read and understand the terms of his policy. ... To hold otherwise puts every insured at the mercy of the company in its fine print, and sets an unrealistic standard of conduct. I venture the opinion that before long the court will be faced with trying to distinguish later arising cases on their facts . . . .\u201d\nPorter v. Butte Farmers Mutual Insurance Company, 68 N.M. 175, 186, 360 P.2d 372, 379 (1961) (Justice Moise, dissenting).\nA later case, Pribble, supra, said:\nWe will not simply mechanically charge Mr. Pribble with the duty of reading and understanding the policy and certificate and then bar him from recovery by a literal application of its terms and provisions. Rather, based on the facts before us, we hold that Mr. Pribble, himself was only bound to make such examination of such documents as would be reasonable for him to do under the circumstances; that he will only be held to that which he would be thereby alerted; and if the language is such that a laymen [sic] would not understand its full impact were he to attempt to plow through it, the documents will yield the maximum protection consistent with their language and the reasonable expectation of Mr. Pribble. [Emphasis added.] [84 N.M. at 216, 501 P.2d at 260]\nFrom an examination of the policy, plaintiff mistakenly believed that he was covered for medical expenses incurred in an accidental injury due to the representations of Mazzone. The word \u201cNIL\u201d did not communicate to plaintiff that medical expense coverage was omitted. A word that an insured cannot understand is a word of doubtful meaning and ambiguous, and if an insured accepts the policy under these facts and circumstances, a genuine issue of material fact exists whether the insured\u2019s conduct was that of a reasonable person, such as an ordinary lay person.\nFrom the admonition given in earlier years, from the liberal construction given to words and phrases in insurance contracts for the benefit of the insured, and from the relaxation of the rule that an insured must read, know and understand the contents of a policy before he accepts it, we have adopted a realistic doctrine. An insurance company has a duty to make policy provisions and words therein, especially those related to coverage, plain, clear and prominent to laymen. Otherwise, if the language is such that a layman would not understand its full impact, the insurance contract will be interpreted to yield the maximum protection consistent with its language and the reasonable expectation of the insured. Furthermore, on summary judgment, we must view the matters presented in the most favorable aspect they will bear in support of the right to trial on the issues. Jacobson v. State Farm Mutual Automobile Ins. Co., 81 N.M. 600, 471 P.2d 170 (1970).\nBy following the precepts that govern this case, we cannot say as a matter of law that the word \u201cNIL\u201d is plain, clear and unambiguous to plaintiff. It is a question of fact so that a genuine issue of material fact exists in the claim for reformation of the policy.\nB. On the claim for damages, a genuine issue of material fact exists.\nOn the issue of damages, plaintiff\u2019s position on appeal is that a genuine issue of material fact exists whether Mazzone had authority to make representations that would be binding upon Western Farm. In Pribble, supra, it was held that actual or apparent authority was usually an issue of fact.\nWestern Farm claims that Pribble had nothing to do with the issues in the case at bar. This is one way to confess the validity of plaintiff\u2019s contention. Pribble was directly in point.\nThe trial court denied Mazzone\u2019s motion for summary judgment. This means that genuine issues of material fact exist with respect to Mazzone\u2019s negligence and fraud. Western Farm did not challenge these findings by cross-appeal. Neither did Western Farm establish that Mazzone, as its agent, was not acting within the scope and authority of that agency. Accordingly, genuine issues of material fact are present on the liability of Western Farm for the claimed misdeeds of Mazzone. Pribble, supra; Appleman, 22 Insurance Law and Practice \u00a7 12854 (1947, and 1976 Supp.).\nC. Plaintiff is relieved of payment of costs and expenses charged by the court.\nMazzone disqualified the judge of the Fourth Judicial District and the judge of the First Judicial District was appointed to hear this case. The appointment required the judge to travel to Las Vegas for trial.\nOn March 19, 1976, Western Farm filed a motion for summary judgment. This motion was set for hearing on April 9, 1976. On April 9, 1976, in open court, Western Farm filed an amended answer. The record is silent on what occurred but summary judgment was not entered. No further notice of hearing was given.\nThe case came on for jury trial in Las Vegas four months later, on August 9, 1976. During oral argument plaintiff\u2019s attorney claimed that he received a telephone call from the court two days before trial saying that the motion for summary judgment had been overruled and to appear for trial. Western Farm claimed that the office received a call to appear for trial. All parties appeared for trial.\nA conference of attorneys was held in the court\u2019s chambers. The court granted Western Farm\u2019s motion for summary judgment and denied Mazzone\u2019s motion for summary judgment. Plaintiff did not want to proceed on his claim against Mazzone and requested a continuance pending an appeal of the summary judgment. The court orally granted plaintiff a continuance on condition that plaintiff pay the costs of the jury, and the expenses of the court and the court reporter incident to vacating the trial setting. Under protest and objection, plaintiff agreed to pay the costs and expenses incurred.\nSection 16-3-10, N.M.S.A. 1953 (Repl.Vol. 4) reads:\nDistrict judges and district court employees shall be allowed per diem and shall be reimbursed for their necessary travel expenses incurred while absent from their principal offices upon official business . . . . These expenses shall be paid from the funds of the district court of the judicial district for which the business is transacted.\nThe expenses incurred by the district judge and his court reporter \u201cshall be paid from the funds of the district court\u201d of the Fourth Judicial District.\n\u201cCosts are a creature of statutes and may not be imposed in the absence of clear legislative authorization.\u201d Reck v. Robert E. McKee General Contractors, 59 N.M. 492, 503, 287 P.2d 61 (1955). We find no statute or rule of court that imposes upon litigants in a civil case the burden of paying per diem and travel expenses incurred by a district judge and his court reporter. In the absence of a statute or rule of court, such expenses cannot be properly taxed as costs. State ex rel. Stanley v. Lujan, 43 N.M. 348, 93 P.2d 1002 (1939).\nIn 1963, in a criminal case, following conviction of defendant for driving a motor vehicle while under the influence of intoxicating liquor, the expense incurred by a nonresident judge was properly taxed as costs because it had a direct relation to the case being tried. City of Portales v. Bell, 72 N.M. 80, 380 P.2d 826 (1963). However, the statute relating to the reimbursement of such expenses was repealed and in 1968 the present \u00a7 16-3-10, supra, was adopted. Payment by the Fourth Judicial District is mandatory. City of Portales is not applicable.\nThe expenses of the district judge and his court reporter were not properly taxed as costs.\nWith reference to the taxation of jury fees as costs, \u00a7 21 \u2014 1\u2014l(38)(h), N.M.S.A. 1953 (Repl.Vol. 4, 1975 Supp.) reads:\nCosts. In civil cases the fees of a jury of six [6] shall be taxed as a part of the costs of the case against the party losing the case. The fees of a jury of twelve [12] shall be paid by the party demanding the same and no part thereof may be taxed as costs.\nUnder this rule of court, we can find no basis for taxing costs against the plaintiff because no jury was selected to try the case.\nIn the instant case, a jury panel was in attendance at court. Persons summoned for jury service shall be compensated for their time in travel and attendance. Section 19-1-15, N.M.S.A. 1953 (Repl.Vol. 4). No provision is made for the taxation of these costs. Section 21-l-l(54)(d), N.M. S.A. 1953 (Repl.Vol. 4) reads in part:\nCosts. Except when express provision therefor is made either in a statute or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs. . . . [Emphasis added.]\n\u201cTo the prevailing party\u201d means the party who wins the lawsuit. The taxation of costs must await the final determination of the case. The costs of jury attendance in court were not properly taxed against plaintiff.\nIn the instant case, costs and expenses incurred were conditioned on the grant of a continuance to the plaintiff.\n\u201cThe granting or denying of continuances is a matter within the sound discretion of the trial court, and such actions will be reviewed only where palpable abuse of discretion is demonstrated.\u201d Schmider v. Sapir, 82 N.M. 355, 358, 482 P.2d 58, 61 (1971). We believe there was a palpable abuse of discretion in denying the continuance, and by conditioning the continuance on plaintiff\u2019s payment of costs and expenses.\nPlaintiff was ready for trial and plaintiff did not seek a continuance merely for vexation or delay. He was caught by surprise the morning of trial.\nWe construe the motion provisions of our Rules of Procedure in that way which will effect the simplification of litigation. We seek to avoid technical road blocks in order to provide a speedy determination of litigation upon its merits. Maxey v. Quintana, 84 N.M. 38, 499 P.2d 356 (Ct.App.1972). \u201cWe do not condone the practice of attorneys permitting motions to rest in peace. The disposition of motions is an important aspect of civil procedure and some reasonable time and place for hearing and disposition should be established by district courts. Section 21-1-1(78), N.M.S.A. 1953 (Repl.Vol. 4).\u201d Atol v. Schifani, 83 N.M. 316, 319, 491 P.2d 533, 536 (Ct.App.1971).\nPlaintiff had a valid reason for a continuance. He did not want to try an agent and principal separately in the event summary judgment was reversed. Western Farm says the trial court gave plaintiff his choice: Go to trial or pay the costs and expenses incurred. Plaintiff made his choice, so make him abide by it. Western Farm adopts the operatic maxim: \u201cLet the punishment fit the crime.\u201d To punish plaintiff for a crime not committed by him is not a doctrine acceptable in appellate courts. It does not comport with reason and fairness.\nPlaintiff is relieved of the payment of costs and expenses incurred by the presence of the jury, the court and its reporter the morning of trial.\nReversed.\nIT IS SO ORDERED.\nHERNANDEZ and LOPEZ, JJ., concur.", "type": "majority", "author": "SUTIN, Judge." } ], "attorneys": [ "Phil Krehbiel, Toulouse, Krehbiel & De-Layo, P.A., Albuquerque, for plaintiff-appellant.", "Frank H. Allen, Jr., Modrall, Sperling, Roehl, Harris & Sisk, Albuquerque, for defendant-appellee Western Farm Bureau Mut. Ins. Co." ], "corrections": "", "head_matter": "563 P.2d 1162\nJohn Dee READ, Plaintiff-Appellant, v. WESTERN FARM BUREAU MUTUAL INSURANCE COMPANY and Dwight M. Mazzone, individually and as agent for Western Farm Bureau Mutual Insurance Company, Defendants-Appellees.\nNo. 2785.\nCourt of Appeals of New Mexico.\nApril 12, 1977.\nPhil Krehbiel, Toulouse, Krehbiel & De-Layo, P.A., Albuquerque, for plaintiff-appellant.\nFrank H. Allen, Jr., Modrall, Sperling, Roehl, Harris & Sisk, Albuquerque, for defendant-appellee Western Farm Bureau Mut. Ins. Co." }, "file_name": "0369-01", "first_page_order": 405, "last_page_order": 413 }