Morris v. Dodge Country, Inc. , 85 N.M. 491 ( 1973 )

SUTIN, Judge

(dissenting).

I dissent. This judgment should be affirmed.

It has long been the policy of appellate courts to alert the legal profession to read and follow the rules of appellate procedure. This policy has failed. One reason is: Appellate courts throw appellate rules of procedure into the wastepaper basket when it desires to reverse a judgment in the court below. Another reason is: Appellate rules of procedure are not followed. This court believes that appellate rules of procedure are only a guide which appellate attorneys should attempt to comply with.

Perhaps efficiency in judicial administration must sometimes be subordinated to the interests of justice and courts of appeal should hear each case on the merits. Fahy, Observations Arising From Appellate Experiences, 34 Wis.Bar Bulletin, 52, 55 (1961). If this principle controls then the Supreme Court should modify its rules because rules “rarely, if ever, reaches perfection.” Fontron, Rules of Appellate Procedure Eight Years Later, 41 Journal of Kans.Bar Ass’n. 205, 206. When rules are not followed our time and energy have been wasted.

In Esterdahl v. Wilson, 252 Iowa 1199, 1208, 110 N.W.2d 241, 246 (1961), the court said:

The so-called technicalities of the law are not always what they seem. When they establish an orderly process of procedure, they serve a definite purpose and are more than technical; they have substance, in that they lay down definite rules which are, essential in court proceedings so that those involved may know what may and may not be done, and confusion, even chaos, may be avoided. They are necessary; without them litigants would be adrift without rudder or compass.

Defendants did not comply with § 21-2-1(15) (6), (15) (16) (a), (d)(iv) and (e), N.M.S.A. 1953 (Repl.Vol. 4). Accordingly, we should decline to review the claimed' errors. Tafoya v. Tafoya, 84 N.M. 124, 500 P.2d 409 (1972); Crosby v. Basin Motor Company, 83 N.M. 77, 488 P.2d 127 (Ct.App.1971).

The majority of the court, desiring to reverse, cast aside compliance with appellate rules of procedure. It then searched the record as an adversary to become the fact finder in place of the jury. This was an all woman jury.

Lloyd Walter McKee and his wife were directors and stockholders of New Mexico Leasing (Leasing). Mr. McKee was also vice-president and secretary-treasurer. He was a director and stockholder of Dodge Country (Dodge) and represented the stockholders on the board.

Leasing was a division of Lloyd McKee Motor. It had a Chrysler license and 75% of its fleet were Chrysler products. Chrysler Motors Corporation had a lease-rental value plan with Dodge as the direct dealer and Leasing as the qualified leasing or rental company. Both companies represented they would be bound by the official rules of Chrysler Motor Corporation. Dodge represented that Leasing was the purchaser of the vehicles and it made delivery to Leasing and Leasing represented it took delivery. After leasing services, Leasing sold its cars back to Dodge. The president of Leasing worked for and was in and out of Lloyd McKee Motors 10 to 20 times a day. Leasing purchased 150 to 200 Chrysler cars per year and 100 or 150 per year from Dodge. As president, he signed and approved all cars returned from leasing and sold to Dodge.

The testimony of both McKee and the president of Leasing was vague and uncertain about the official relationship of each with the defendant corporations, and the relationship of both companies.

The president of Leasing, the manager of Dodge, and defendant Hahn, an employee of Dodge, were each served with process at Lloyd McKee Motors. Leasing was also known as McKee Lease and Rental Company at the time Avis leased the car in question from Leasing. The car was re-sold by Leasing to Dodge a month before plaintiff purchased it.

When plaintiff purchased the car from Dodge, the mileage on the odometer read 728. When he received a warranty from Chrysler Corporation, the mileage was stated as 9,150.

On motion for judgment n.o.v., the trial court refused to set aside the jury verdict because of the relationship of McKee to the various companies and the relationship of the two businesses. He believed the jury took that into consideration in arriving at a verdict; that the jury believed there was knowledge on behalf of Dodge and Leasing; that it was impossible to determine who actually altered the odometer, but the jury found that McKee and his interlocking corporations had something to do with it.

The trial court was right. An issue of fact on conspiracy existed. The majority opinion is wrong. How easy it is on appeal to challenge the plaintiff’s brief and not the defendants. How simple it is to accept facts favorable to the loser as well as inferences to be drawn therefrom. How rewarding it is to the loser for this court to judge the credibility of the witnesses.

Under a charge of conspiracy, it is not necessary for plaintiff to prove that Dodge and Leasing came together and agreed upon a method of operation just before Dodge went bankrupt. Conspiracy is rarely susceptible of proof by direct evidence. Conspirators are seldom caught in the act like 20th century “Watergate.” The law recognizes the intrinsic difficulty in proving a conspiracy. • It is often discovered from the nature of the acts done, the relation of the parties, the interests of the alleged conspirators and other circumstances, irrespective of whether one of the parties was a direct actor or the degreé of his activity. Tuman v. Brown, 59 Cal.App.2d 16, 138 P.2d 363 (1943). In Scheele v. Union Loan & Finance Co., 200 Minn. 554, 563, 274 N.W 673, 678 (1937), the court said:

Conspirators do not make minutes of their machinations, progress, and objectives. Seldom, therefore, can conspiracy be proved by other than circumstantial evidence. It is only by assembling the results, with such evidence as may be of the progress thereto by the participants, that the victim can ever make a case of conspiracy. If in the end there is a completed structure of result, the frame of which has been furnished piecemeal by several individuals, the parts when brought together showing adaption to each other and fitness for the end accomplished, it is at least reasonable to infer concert in both planning and fabrication.

All that is necessary to create an issue of fact for the jury is for plaintiff to present facts and circumstances — pieced together and considered as a whole — which a jury may, by implication, determine that the parties united in an understanding way to accomplish the fraudulent scheme. See cases cited in majority opinion.

Leasing, on appeal, did not present any issues raised in the majority opinion. It relied solely on Perschbacher. It said:

As cited above, in order to show civil conspiracy the evidence must be introduced to show an agreement or scheme between or among the alleged conspirators. First National Bank of Dodge City vs. Perschbaker (sic), 335 F.2d 442 (10th Cir. 1964). Nowhere in the record can be found any evidence whatsoever, much less “substantial” evidence to indicate any agreements between or among any of the parties to this lawsuit. [Emphasis by Leasing]

“It assumes 'the aspect of that test between mushrooms and toadstools, which is that if the eater is killed it was toadstools.” State v. Minella, 177 Iowa 283, 287, 158 N.W. 645, 647 (1916). This contention by Leasing fails to establish the right to a directed verdict. No formal agreement is necessary to constitute an unlawful conspiracy. Business behavior is admissible circumstantial evidence from which the jury may infer agreement. Norfolk Monument v. Woodlawn, 394 U.S. 700, 704, 89 S.Ct. 1391, 22 L.Ed.2d 658 (1969).

The evidence was sufficient to support the verdict of the jury. Tuman v. Brown, supra; Scheele, supra; Rogers v. Grua, 215 Cal.App.2d 1, 30 Cal.Rptr. 39 (1963); Amsbury v. Harper, 87 Ind.App. 119, 157 N.E. 292 (1927); Berns v. Usrey, 86 Ind.App. 38, 155 N.E. 717 (1927); Hewitt v. Westover, 86 Ind.App. 505, 158 N.E. 631 (1927); Trebelhorn v. Bartlett, 154 Neb. 113, 47 N.W.2d 374 (1951).

It is not necessary to determine plaintiff’s cross-appeal.