Sanchez v. Dale Bellamah Homes of New Mexico, Inc. ( 1966 )

ON MOTION FOR REHEARING

PER CURIAM.

Except for the following addition to the opinion originally filed, motions of both appellant and appellee on rehearing will be denied.

OPINION

NOBLE, Justice.

The appellee Sanchez argues in his motion for rehearing that we did not dispose of Point II presented by his cross-appeal. He there asserted error in the trial court’s refusal to instruct on the issue of punitive damages, but limited his request for a new trial to one on “the question of punitive damages alone.”

Since reviewable questions on rehearing are limited to those presented by the points originally relied upon for reversal, matters authorized by Supreme Court Rule 18(1) ,and errors asserted in the motion for rehearing. Pitek v. McGuire, 51 N.M. 364, 184 P.2d 647, 1 A.L.R. 2d 830, the issue on cross-appellant’s motion for rehearing on the cross-appeal is limited to whether, if the trial court erred in denying submission of the issue of punitive damages to the jury, a new trial should be directed solely on the issue of punitive damages.

We have said that where the issue of damages is separable and distinct from the issues of negligence and proximate cause, and reversal is required because of errors in the amount of damages awarded, and where no error appears as to other issues, a new trial may be limited to the issue in which the error is present. Baros v. Kazmierczwk, 68 N.M. 421, 362 P.2d 798; Vivian v. Atchison, T. & S. F. Ry., 69 N.M. 6, 363 P.2d 620; Sellers v. Skarda, 71 N.M. 383, 378 P.2d 617; Hanberry v. Fitzgerald, 72 N.M. 383, 384 P.2d 256. However, each of those involved the issue of damages for personal injuries which on appeal were determined to be excessive. We perceive a considerable difference between limiting a retrial to the issue of damages under the facts of those cases and of submitting the issue of punitive or exemplary damages alone. McGarr v. E. V. Schnoor Cigar Co., 125 Kan. 760, 266 P. 73. To warrant an appellate court in directing a new trial limited to the single issue of punitive damages, it must not only appear that the issue of such damages is entirely separate and distinct from that of liability and compensatory damages, Anno. 85 A.L.R.2d 9, §§ 7, 8 and 9, but it must likewise appear that such single issue can be determined without reference to other issues and without prejudice to either party. We have carefully reviewed the record in this case and while exemplary damages are assessed to punish the defendant and not to compensate for a loss by plaintiff, and to that extent they are separate and distinct from compensatory damages, a review of the evidence in this case convinces us that much of the testimony respecting liability and compensatory damages would be neces--sary to enable a jury to reach a proper verdict as to (1) whether exemplary or punitive damages should be granted, and (2) if granted, the amount thereof.

We therefore conclude that under the facts of this case, it is clear that a new trial on the issue of damages alone could not be had without prejudice to the defendant.

We find the motion for rehearing on the cross-appeal to be without merit and it will be denied.

The judgment appealed from should be affirmed.

It is so ordered.

CHAVEZ and COMPTON, JJ., concur.