Seele v. Purcell , 45 N.M. 176 ( 1941 )

On Motion for Rehearing. Plaintiffs have moved for a rehearing on the ground that the trial court went outside the issues in deciding that the injuries of plaintiffs were the result of an unavoidable accident, and they complain because we did not discuss this point in our opinion. It must not be thought because we do not reply to all the arguments of counsel that such arguments have not been duly considered. In the present instance we thought the matter so well settled in this jurisdiction and elsewhere that no comment was necessary. However, the zeal and insistence of counsel for appellants have caused us to go over the matter again, and we conclude that it may be of service to the bar if we discuss the point briefly.

Plaintiffs pleaded defendant's negligence; defendant pleaded the general denial and contributory negligence of the plaintiffs, which latter defense was denied by plaintiffs. Plaintiffs say that because defendant pleaded contributory negligence in them, he admitted his own negligence, though only "for the purpose of the plea" (Crocker v. Johnston, 43 N.M. 469, 95 P.2d 214, 220) and, therefore, the court was unwarranted in rendering its decision on the basis of unavoidable accident. They say defendant should have admitted the accident in question, and averred that plaintiffs were not negligent in any respect, and that defendant was not negligent in any respect. They cite in support of this view Uncapher v. Baltimore O.R. Co., 127 Ohio St. 351,188 N.E. 553.

This view is out of harmony with the decided weight of authority. In 45 C.J., Negligence, § 730, it is said: "As in all civil cases, the general issue or general denial puts in issue all the material allegations of the complaint, which plaintiff must prove to maintain his action, * * * Under such issue defendant may show the absence of negligence on his part; * * * or that the injury was the result of an unavoidable accident; but as to this there is authority to the contrary on the theory that such defense is an affirmative one that should be specially pleaded."

We have examined the annotations to Corpus Juris down to date, and we find a number of more recent decisions supporting that portion of the text, stating, "or that the injury was the result of an unavoidable accident," and none supporting the contrary view. Starting with New Mexico, we quote the holdings as digested:

"In action for personal injuries, defendant's general denial of negligence held sufficient to permit proof of third person's negligence." Miranda v. Halama-Enderstein Co., 37 N.M. 87,18 P.2d 1019.

"Proof of accident is admissible under general denial." Yawitz v. Novak, Mo. Sup., 286 S.W. 66.

"Defendant under general denial of his own negligence can show that injury resulted from any other cause." Russell v. Bayne,45 Ga. App. 55, 163 S.E. 290.

"Question whether negligence was proximate cause of damage can be raised under plea of general issue." Atlantic Coast Line R. Co. v. Webb, 112 Fla. 449, 150 So. 741, 742.

"Under general denial, any facts may be shown tending to disprove negligence charged." Hornsby v. Fisher, Mo.Sup., 85 S.W.2d 589.

"The defense of unavoidable accident is available under general denial, if raised by the evidence." Sterling v. Community Natural Gas Co., Tex.Civ.App., 105 S.W.2d 776.

"Under a general denial by defendant of a general allegation of negligence, defendant may rely on defense of unavoidable accident and does not waive such defense by failure to plead it, and in such case instruction on doctrine of unavoidable accident upon request is proper." Sitkei v. Ralphs Grocery Co., 25 Cal. App. 2d 294, 77 P.2d 311, 312.

"Defendant in personal injury suit may show under general denial that casualty happened in different manner than that claimed by plaintiff, as such showing does not constitute affirmative defense, but merely effort to disprove plaintiff's cause of action, and is not a confession and avoidance." Weishaar v. Kansas City Public Service Co., Mo. App., 128 S.W.2d 332, 333.

"A general denial by defendant in a negligence case puts in issue the matter of unavoidable accident." Sproles Motor Freight Lines v. Juge, Tex.Civ.App., 123 S.W.2d 919.

"In action for injury sustained by plaintiff who was engaged in cold drink business when bottled soft drink exploded and piece of glass bottle struck plaintiff, defendant's general denial put in issue question whether injury resulted from unavoidable accident, which was not required to be pleaded." Alagood v. Coca Cola Bottling Co., Tex.Civ.App., 135 S.W.2d 1056.

The motion for rehearing should be denied, and it is so ordered.

BRICE, C.J., and ZINN, SADLER, and MABRY, JJ., concur.