SANCHEZ V. MARTINEZ, 1982-NMCA-168,
99 N.M. 66, 653 P.2d 897 (Ct. App. 1982)
HERACLIO DAVID SANCHEZ and
PETRA SANCHEZ, his wife,
Plaintiffs-Appellees,
vs.
SAMMY MARTINEZ, d/b/a SAMMY MARTINEZ AGENCY,
Defendant-Appellant.
COURT OF APPEALS OF NEW MEXICO
1982-NMCA-168, 99 N.M. 66, 653 P.2d 897
APPEAL FROM THE DISTRICT COURT OF SAN
MIGUEL COUNTY, ANGEL, Judge
JESUS L. LOPEZ, Esq., Las Vegas, New
Mexico, Attorney for Appellees.
MICHAEL L. GREGORY, Esq., Las Vegas, New
Mexico, Attorney for Appellant.
Donnelly, J. wrote the opinion.
WE CONCUR: William R. Hendley, Judge, C.
Fincher Neal, Judge (concurring in result only)
{1} The defendant, Sammy
Martinez, appeals from a judgment entered pursuant to a jury verdict which
awarded the plaintiffs, Heraclio Sanchez and Petra Sanchez, damages of
$7,913.27 for negligent failure to procure fire insurance.
{2} On appeal, the defendant
asserts four issues of alleged trial court error: (1) failure to dismiss on the
basis of the statute of frauds; (2) incorrect jury instructions; (3) admission
of improper damages evidence; and (4) failure to grant a mistrial based on the
return of an improper verdict. We reverse.
{3} The plaintiffs purchased
a residence in Las Vegas, New Mexico in 1954. In 1959, the plaintiffs moved to
Albuquerque and began to purchase insurance for their Las Vegas house through
the defendant's agency. The plaintiffs alleged that the defendant agreed orally
to act as their insurance agent, procuring and renewing appropriate fire
insurance from year to year.
{4} On February 16, 1979, the
house was partially destroyed by fire and the plaintiffs requested the
defendant to process their insurance claim for the damage incurred. The
defendant advised the plaintiffs that the house was uninsured and that he had
not acquired insurance on the property. Defendant stated that he had told
plaintiffs that the house could only be insured under an assigned risk policy
because of the property's run-down condition and that coverage could not be
effected unless the premiums were paid in advance. The defendant denied
liability for the loss sustained by the plaintiffs and claimed that the
plaintiffs were aware that there was no policy of insurance in effect at the
time of the loss since they had not paid the premium.
{5} The plaintiffs filed suit
on March 18, 1980, demanding a jury trial, and alleging that defendant breached
a contract to procure insurance on their behalf; in the alternative, they
alleged the defendant negligently breached a contractual duty to obtain a
policy of insurance. The plaintiffs' complaint claimed damages of $12,000.00.
Defendant's answer denied liability and also raised as affirmative defenses the
bar of the statute of frauds and contributory negligence.
{6} The trial court submitted
the case to the jury on the negligence theory only and instructed them to
consider the issues of comparative negligence. The trial court submitted the case
to the jury on special interrogatories rather than general verdict forms.
{7} The answers to the
special interrogatories submitted to the jury and signed by the foreman found
that the defendant was negligent, that the plaintiffs were not negligent, and
that the negligence of defendant was the proximate cause of the plaintiffs'
injury. However, the jury failed to enter in their answer to the
interrogatories submitted the specific amount of damages which they determined
should be awarded. Special interrogatory No. 5, as filled out by the foreman of
the jury read:
Issue No. 5. Without taking into consideration the question
of reduction of damages due to the negligence of the plaintiff, if any, what is
the total amount of damages suffered by the plaintiff, a (proximate) (legal)
cause of which was the (accident) (incident) in question?
{8} The trial court undertook
to poll the jury to clarify the meaning of the verdict and the damage award. In
an apparent reference to plaintiffs' exhibit No. 11, the court asked whether
the jury intended "full amount" to mean the sum of $7,913.27, a
figure which had been testified to by the plaintiff Heraclio Sanchez. Several,
but not all, of the jurors answered in the affirmative. The court's voir dire
of the jury
{*69} raised serious
questions about whether at least ten jurors had concurred in the finding of
liability. Following the questioning of certain of the jury members, the court
concluded, "I find that the intent of the jury was to award the plaintiff
the full amount prayed for in the Complaint -- $7,913.27."
(1) Defense of Statute of Frauds
{9} The defendant asserts
that the trial court should have granted a directed verdict at the close of the
plaintiffs case in chief since the action brought by plaintiffs was based on an
alleged oral contract and was barred by the statute of frauds.
{10} The statute of frauds is
an affirmative defense applicable in actions seeking to enforce oral contracts.
Skarda v. Skarda, 87 N.M. 497,
536 P.2d 257 (1975);
Pitek v. McGuire,
51 N.M. 364,
184 P.2d 647, 1 A.L.R.2d 830 (1947);
Balboa Const. Co. v.
Golden, 97 N.M. 299,
639 P.2d 586 (Ct. App. 1981). This defense, however,
is not effective in actions grounded in tort.
Bynum v. Bynum, 87 N.M.
195,
531 P.2d 618 (Ct. App. 1975);
McNaughton v. Smith, 136 Mich. 368,
99 N.W. 382 (1904);
Burgdorfer v. Thielemann, 153 Or. 354, 55 P.2d 1122
(1936);
Kinkaid v. Rossa, 31 S.D. 559, 141 N.W. 969 (1913); W. Prosser,
The
Law of Torts, § 92 (4th Ed. 1971);
see also Ringler v. Ruby, 117 Or.
455, 244 P. 509, 46 A.L.R. 245 (1926);
cf. Stotlar v. Hester, 92 N.M.
26,
582 P.2d 403 (Ct. App.),
cert. denied, 92 N.M. 180, 585 P.2d 324
(1978).
{11} The case of
Green v.
Hartford Fire Ins. Co., 157 Miss. 316, 128 So. 107, 69 A.L.R. 554 (1930),
relied upon by the defendant, involved the application of the statute of frauds
defense in an action alleging a breach of oral contract to procure insurance.
It is distinguishable, however, from the instant case because there the
plaintiff raised no claim of tortious conduct. Here, the plaintiffs brought
suit under the alternative theories of tort and contract. In the instant case,
as ultimately submitted to the jury, plaintiffs sought recovery solely upon
their claim of tort; the jury received the court's statement of case
instruction (no. 1) based on a negligence theory. The trial court did not err
in denying the motion for directed verdict.
(2) Error in Jury Instructions
{12} The trial court properly
denied the defendant's requested jury instruction on the defense of statute of
frauds. A party is entitled to have the jury instructed on all correct legal
theories supported by substantial evidence.
Sandoval v. Cortez, 88 N.M.
170,
538 P.2d 1192 (Ct. App. 1975). As a general rule, however, determination of
the applicability of the defense of statute of frauds is a question of law for
determination by the court, not the jury.
See Howland v. Iron Fireman Mfg.
Co., 188 Or. 230, 215 P.2d 380 (1950);
Brinser v. Anderson, 129 Pa.
376, 11 A. 809 (1888). A factual question, however, concerning the existence of
a contract may prevent a ruling as a matter of law on the applicability of the
statute of frauds.
Sierra Blanca Sales Co., Inc. v. Newco Industries, Inc.,
84 N.M. 524,
505 P.2d 867 (Ct. App.),
cert. denied, 84 N.M. 512,
505
P.2d 855 (1972). As finally submitted to the jury, the plaintiffs' claims
against the defendant were predicated on negligence grounds and not upon
contract. The defense of statute of frauds applies only in contract actions.
Burgdorfer
v. Thielmann, supra; Kinkaid v. Rossa, supra; McNaughton v. Smith, supra.
{13} The plaintiff submitted
a jury instruction on implied contract. U.J.I. Civ. 8.3., N.M.S.A. 1978. This
instruction was not improper under the facts herein. The plaintiffs alleged in
their complaint the existence of a "course of conduct" between the
parties whereby the plaintiffs relied upon the defendant "to secure and to
continue in effect for Plaintiffs a contract of insurance" on their house.
{14} An insurance agent or
broker who undertakes to procure insurance for others and, through his fault or
neglect, fails to do so, may be held liable for any damage resulting therefrom.
Under such facts, liability may be predicated either upon the theory that
defendant is the agent of the insured and has breached a contract to procure
{*70} a policy of insurance, or that he owes a
duty to his principal to exercise reasonable skill, care, and diligence in
securing the insurance requested and negligently failed to do so. The defendant
may be sued for breach of contract or negligent default in the performance of a
duty imposed by contract or both.
Brown v. Cooley, 56 N.M. 630,
247 P.2d
868 (1952);
see also Lanier v. Securities Acceptance Corp., 74 N.M. 755,
398 P.2d 980 (1965);
White v. Calley, 67 N.M. 343,
355 P.2d 280 (1960);
Wiles
v. Mullinax, 267 N.C. 392, 148 S.E.2d 229 (1966).
{15} An agent who agrees to
procure or renew an expired policy of insurance has a duty to either obtain the
insurance, renew or replace the policy, or seasonably notify the principal that
he is unable to do so in order that the principal may obtain insurance
elsewhere.
Butler v. Scott, 417 F.2d 471 (10th Cir. 1969) (applying N.M.
law);
Trinity Universal Ins. Co. v. Burnette, 560 S.W.2d 440, (Tex. Civ.
App. 1977);
Ezell v. Associates Capital Corporation, 518 S.W.2d 232
(Tenn. 1974);
Wiles, supra. Since suit for negligence or default of a
duty arising by contract may be predicated upon an agreement between the
parties, either express or implied, the giving of the instruction was not
error.
See Bynum v. Bynum, supra. Evidence of custom or course of
conduct between the parties may give rise to a contract implied in fact.
Gordon
v. New Mexico Title Co., 77 N.M. 217,
421 P.2d 433 (1966);
Trujillo v.
Chavez, 76 N.M. 703,
417 P.2d 893 (1966).
{16} Where the plaintiff's
cause of action is solely in contract based on an oral agreement which cannot
be performed within one year, and there is no evidence of partial performance
or memoranda confirming the agreement, the statute of frauds may constitute a
complete defense.
See Fireman's Fund Ins. Co. v. Williams, 170 Miss.
199, 154 So. 545 (1934). Here, however, the plaintiffs submitted the case to
the jury on a tort theory based upon the alleged negligent failure of defendant
to perform a duty imposed by an implied contract; the agreement to procure the
new policy of insurance was to be performed within a year. Denial of the
defendant's requested instructions on the statute of frauds was not error.
(3) Voir Dire as to Verdict of Jury
{17} After the jury returned
to open court following their deliberations, the trial court read into the
record their answers to the special interrogatories. At this point the
following colloquy occurred between the court and certain members of the jury:
THE COURT: What was the verdict of the jury, Mr. [Venerito]
Angel? How much did you intend to award the plaintiff?
THE FOREMAN: All, the full amount.
THE COURT: And what is the full amount? Seven thousand nine
hundred and whatever?
THE FOREMAN: We didn't know exactly how much.
THE COURT: I wish the attorney for the plaintiff to voir dire
on that issue, Mr. Lopez.
MR. GREGORY: May it please the Court, I object to that on the
grounds that that is obviously a faulty verdict and move the proceedings be declared
a mistrial.
THE COURT: Denied. Let me voir dire the jury.
VOIR DIRE EXAMINATION BY THE COURT:
Q What was your verdict, sir? What did you intend to award?
A Mr. Martinez [was] guilty.
Q The full amount that plaintiff was claiming in this case?
A We didn't have a figure so we didn't know how much to put
in there.
Q The figure testified to was $7,913.27. Is that the figure
that you people discussed?
Q Mrs. Eugenio Martinez, what was your verdict?
{*71} Q Did you intend
to award this figure to the plaintiff?
Q That is what you intended to do?
Q That is what you intended to do?
Q Della Lopez -- what was your verdict, Mrs. Lopez?
Q Well, this isn't a question of guilt or innocence. Did you
intend to award the plaintiff a verdict in this amount that was mentioned here?
THE JURORS: He is not a juror.
Q Pardon me, Jenne Irene Wood?
A I found Mr. Martinez not guilty.
A It was debatable between the two parties being negligent,
but then I went along with the rest since they outvoted me. So I went with the
full amount.
THE COURT: The record will show that the verdict of the jury
is that the plaintiff is to receive the full amount. I understand that the
nature of the pleadings is a bit confusing in this matter. In fact, the jury
should have filled out the verdict which says, "We find for the plaintiffs
on the complaint in the sum of," and that in fact was the verdict on the
Special Interrogatory that was signed. But I find that the intent of the jury
was to award the plaintiff the full amount prayed for in the Complaint --
$7,913.27.
{18} From the juror's
responses to questioning by the court it is apparent that the jury never
properly determined the amount of damages to be awarded. Although the trial
court sought to clarify the ambiguity in the jury's answer to the interrogatory
as to any damage award, the record, however, fails to show that all twelve
jurors were polled on this issue. Only ten jurors were in fact questioned by
the court, and one of these, Jenne Irene Wood, clearly disagreed with any
finding of liability or award of damages. Still another juror, Mrs. Leo Armijo,
expressed reservations about determination of liability. The intention of the
two unpolled jurors does not appear in the record. This questioning by the
trial court cast doubt upon the validity of the entire decision of the jury
both as to its determination of liability and damages.
{19} A valid judgment cannot
be entered on a jury verdict which is neither specific nor definite as to the
damages award.
Gibson v. Central Mfrs. Mut. Ins. Co., 232 N.C. 712, 62
S.E.2d 320 (1950). The law requires that each juror give fair, dispassionate,
and full consideration to the rights of each litigant if an award of damages is
to be made. Such award must be based upon the evidence adduced at trial and
rendered in accordance with the law set out in the court's instructions. U.J.I.
Civ. 18.2, N.M.S.A. 1978;
see Powell v. Moore, 202 Ga. 62, 42 S.E.2d
110, (1947).
{20} An award of damages
predicated upon conjecture, guess, surmise or speculation is improper.
Hebenstreit
v. Atchison, Topeka & Santa Fe Ry. Co., 65 N.M. 301,
336 P.2d 1057
(1959);
Rael v. F. & S Co., Inc., 94 N.M. 507,
612 P.2d 1318 (Ct.
App. 1979),
cert. quashed, 94 N.M. 675,
615 P.2d 992 (1980). A party
seeking to recover damages has the burden of proving the existence of injuries
and resulting damage
{*72} with
reasonable certainty.
Gulf Refining Company v. Etcheverry, 85 N.M. 266,
511 P.2d 752 (Ct. App.),
cert. denied, 85 N.M. 639,
515 P.2d 643 (1973);
see Grammer v. Kohlhaas Tank & Equip. Co., 93 N.M. 685,
604 P.2d 823
(Ct. App. 1979).
{21} The general rule
applicable to defects in the form or content of verdicts is that the verdict
should leave no question as to the clear intent of the jury to render an award
of damages and as to the amount determined.
Fransen v. Washington, 229
Cal. App.2d 570, 40 Cal. Rptr. 458 (1964). Defects in a verdict which render it
indefinite or insufficient invalidate the verdict form unless corrected by the
jury following further deliberations.
Stambaugh v. Hayes, 44 N.M. 443,
103 P.2d 640 (1940);
compare Murry v. Belmore, 21 N.M. 313,
154 P. 705
(1916).
{22} A verdict in a civil
damage action has two separate aspects -- liability and amount of damages --
and there is a broad distinction between the two. U.J.I. Civ. 18.1, 18.2
N.M.S.A. 1978;
Board of Mayor and Aldermen v. Moore, 33 Tenn. App. 561,
232 S.W.2d 410, (1950). Under N.M.R. Civ. P. 49, N.M.S.A. 1978 (1982 Cum.
Supp.), the court may submit the special verdict issues to the jury either in
the form of a special written finding on each issue of fact or on a general
verdict form accompanied by interrogatories. Special verdicts or jury
interrogatories are required in comparative negligence cases by N.M. Supreme
Court Order No. 8000, Misc. (March 30, 1981).
Armstrong v. Indus. Elec. and
Equip. Service, 97 N.M. 272,
639 P.2d 81 (Ct. App. 1981).
{23} Determination of the
proper amount of damages, if any, in a jury trial is within the exclusive
province of the jury, since they are the sole judges of all disputed questions
of fact. U.J.I. Civ. 18.2;
see also Cole v. Boyd, 47 Mich. 98, 10 N.W.
124 (1881). Here the amount of damages was contested. The jury verdict or
decision must be in writing, §
38-5-17, N.M.S.A. 1978; N.M.R. Civ.P. 38(f),
N.M.S.A. 1978 (1982 Cum. Supp.), and written answers made by a jury to special
interrogatories cannot be modified by oral answers of jurors to questions by
the court.
See § 38-5-17,
supra; see also Stambaugh v. Hays, supra;
Burke v. Hodge, 211 Mass. 156, 97 N.E. 920 (1912).
There is no question in New Mexico concerning the power of a
trial court to amend or clarify an incomplete or ambiguous verdict, Johnson
v. Mercantile Ins. Co. of America, 47 N.M. 47, 133 P.2d 708; Holloway v.
Evans, 55 N.M. 601, 238 P.2d 457; Di Palma v. Weinman, 16 N.M. 302,
121 P. 38. This, indeed, is in line with the overwhelming weight of authority;
the cases are collected [in] 116 A.L.R. 845, 8 A.L.R.2d 864.
Upon return of a mistaken or ambiguous verdict by the jury
the trial court should direct the jury to return to the jury room to agree upon
a corrected form of verdict upon further deliberation. Stambaugh v. Hayes,
supra; see also § 38-5-17, supra.
{25} The trial court erred in
suggesting the amount of damages intended by the jury to be included in the
term "full amount." Plaintiff, Mr. Sanchez, testified that he
sustained damages in the sum of $7,913.27, as shown by exhibits for materials
used to repair his property. He further testified that he was claiming the sum
of $800.00 for repair work personally performed by him, plus reimbursement for
meals and travel expenses incurred incident to renovating the house.
{26} The claim for food and
travel reimbursement under the facts adduced was not proper. The correct
measure of damages in an action against an insurance agent based on a claim of
failure to procure fire insurance is the amount that would have been due under
the policy which should have been obtained.
Brown v. Cooley, supra; Butler
v. Scott, supra. There was no evidence that food and travel expenses were
covered under the insurance sought to be obtained. The defendant, if found
liable, is entitled to a deduction for the sum of any amount of standard
deductible and the
{*73} amount of any
unpaid premiums.
Wheaton Nat. Bank. V. Dudek, 59 Ill. App.3d 970, 17
Ill. Dec. 487, 376 N.E.2d 633 (1978).
{27} The responses given by
the jurors who were questioned by the court in addition to indicating the
existence of confusion concerning the award of damages also cast strong doubt
as to whether the requisite number of jurors agreed on the issue of liability.
Fundamental justice requires that a verdict returned by a jury be certain as to
its import, and be free from ambiguity or inconsistency.
Stein v. Handy,
212 Or. 225, 319 P.2d 935 (1957);
Lorick & Lowance v. Julius H. Walker
& Co., 153 S.C. 309, 150 S.E. 789 (1929);
see Jones v. Pollock,
72 N.M. 315,
383 P.2d 271 (1963).
{28} Although determination
of whether to poll a jury concerning its verdict is optional with each party,
once it is undertaken by the court, failure to poll all twelve jurors as to
their concurrence in determination of liability, or for the court to direct the
jury to return to the jury room to agree upon the amount of an undetermined
damage award, if any, was error.
See e.g. Stambaugh, supra; Lorick, supra.
The court undertook to poll the jury but only questioned ten of the twelve members
as to whether they concurred in the rendition of the verdict or the award of a
specific sum of damages. The purpose of a civil jury poll is to assure that the
required ten jurors have agreed to a valid verdict. § 38-5-17,
supra;
N.M.R. Civ. P. 38(f),
supra. However, polling of a jury is not proper to
determine the amount of a damage award or for the purpose of revealing its
determination of factual issues since jury verdicts are required to be written.
§ 38-5-17,
supra; N.M.R. Civ.P. 38(f),
supra.
{29} Since the record fails
to show affirmatively that ten or more jurors joined in the determination that
the defendant was negligent and that the plaintiffs were entitled to a specific
sum of damages, this cause is reversed and remanded to the trial court for a
new trial consistent with this opinion.
WE CONCUR: William R. Hendley, Judge.
C. Eincher Neal, Judge, (concurring in result only)