Rael v. F & S CO., INC.

OPINION

ANDREWS, Judge.

Twelve year old Everett Rael was injured by a sudden explosion of a firework. His father filed this action against the fireworks supplier, Onda Enterprises, Ltd. (Onda), and the seller, F & S Company, Inc. (F & S). After the court dismissed cross-claims filed by both defendants in which each sought indemnity from the other, the jury returned a verdict for $7,000 for Everett and $339 for his father against both defendants jointly and severally. On appeal, F & S attacks the judgment on two unrelated grounds; first, it seeks indemnity from Onda, and second, it asserts that the court erred in granting an instruction permitting the award of damages for future pain and suffering. We have considered the facts and law applicable to the first issue and find it to be without merit. However, in our opinion, the court erred in granting an instruction permitting the award of damages for future pain and suffering because there was no evidence for such an award.

The firework which caused the injury was purchased from F & S, but had been manufactured by Gou Chien Fireworks Mfg. Co., Ltd., a Taiwan entity on which service was never effectuated, sold by Gou Chien to Onda, a Japanese corporation, and then sold to F & S, a New Mexico corporation.

In 1973, F & S did some testing of the fireworks received and found some of them to be defective. It then registered a complaint with Onda, which agreed to give F & S full credit, including freight and duties, for the defective batches and asked that the remainder of the batches be destroyed at Onda’s expense. F & S agreed, and was given full credit for the batches about which it had complained. However, in July 1974, after taking some steps to remove the defective items from distribution, F & S sold the firework which injured Everett. Indemnity

F & S argues that Onda, as supplier of the defective firework to F & S, is liable for all damages caused by the defective product, including the damages for which F & S was held liable to the plaintiff. While a rule has been adopted in some jurisdictions which allows indemnity in products liability cases,¹ it is not necessary for us to decide whether New Mexico should follow these authorities; F & S failed to present evidence which would support its cross-claim for indemnity.

The plaintiff’s case was submitted to the jury on two theories, negligence and strict liability. F & S’s cross-claim alleges only products liability as a basis of indemnity, but even if both theories had been properly alleged, neither theory is supported by the facts as presented at trial.

F & S cannot maintain an indemnity action against Onda on a negligence theory because, even if Onda was negligent, F & S was in pari delicto with Onda. In New Mexico, one tortfeasor may not recover indemnity from another when the two are in pari delicto. Rio Grande Gas Company v. Stahmann Farms, Inc., 80 N.M. 432, 457 P.2d 364 (1969); Lomorri v. Milner Hotels, 63 N.M. 342, 319 P.2d 949 (1957); Morris v. Uhl & Lopez Engineers, Inc., 442 F.2d 1247 (10th Cir. 1971), aff’d after remand, 468 F.2d 58 (10th Cir. 1972).

As stated in Morris v. Uhl & Lopez Engineers, Inc., supra:

The nature and scope of the right are solely a matter of the legal kind or class of negligence which has been involved in relation to the accident. Also, while it is possible for differences to exist in the volume or extent of negligence of the same kind between members of a particular class, this is of no relevance, since this would be a question only in relation to contribution and not to indemnity. Members of a class occupy the same legal position with respect to each other, or in other words are in pari delicto between themselves. 442 F.2d 1247 at 1254.

This is the same as saying that one party may not recover from the other where both are active tortfeasors. See Krametbauer v. McDonald, 44 N.M. 473, 104 P.2d 900 (1940). F & S’s conduct was active despite the fact that its negligence arose mainly out of its failure to take remedial action to prevent the fireworks from getting into the hands of the public, and whether or not Onda’s conduct was also actively negligent, a fact we need not decide here, F & S had no right of indemnity from Onda.

Switching to its products liability theory, F & S argues that responsibility should trace back to the originally responsible party since the manufacturer should not be able to escape liability merely because the injured party fortuitously selected the immediate seller as a defendant. We disagree. The same considerations of “active” and “passive” conduct discussed in regard to negligence pertain to a claim for indemnity based upon a products liability theory.

F & S asserts that this case is analogous to that in which an employer who is found liable to an injured person has a right to indemnity from his employee who negligently caused the injury, the employer’s conduct being “passive” and the employee’s being “active”. This is an oversimplification. An employer has a right to indemnity solely because of his employee’s negligence. But in most products situations where indemnity is allowed, the indemnitee’s liability to the injured party is not based solely on the indemnitor’s conduct. 3A Frumer & Friedman, Products Liability (1978) § 44.02[1]. A retailer is not “secondarily” liable because he is a retailer — he is secondarily liable if his conduct was passive and that of his supplier was active; if the conduct of both was active then the liability of both is primary and indemnity is not allowed. See Oregon Farm Bureau Insurance Company v. E. L. Caldwell & Sons, Inc., 306 F.Supp. 835 (D.Or.1969); 3A Frumer & Friedman, Products Liability (1978) § 44.02[3][b]. Thus, it is not one’s place in the chain of supply which allows him a right to indemnity; rather it is his conduct in relation to the conduct of others in the chain which allows or disallows him the right to indemnity. See Wallner v. Kitchens of Sara Lee, Inc., 419 F.2d 1028 (7th Cir. 1969); Caruloff v. Emerson Radio & Phonograph Corporation, 445 F.2d 873 (2d Cir. 1971). As stated above, F & S was an active tortfeasor, and as such is precluded from recovering indemnity from Onda.

We have considered other arguments presented by F & S in regard to this issue and find them similarly unpersuasive.

Future Pain and Suffering

Next, F & S argues that the. trial court erred in granting an instruction which permitted the award of damages for future pain and suffering. While it is clear that under New Mexico law damages can be recovered for mental pain and suffering as a consequence of physical injuries, Rutledge v. Johnson, 81 N.M. 217, 465 P.2d 274 (1970), F & S asserts that there was no evidence that any future pain and suffering would exist, nor was there any evidence as to the extent or duration of the future pain and suffering. Thus, whether or not the evidence supports the use of U.J.I. 14.5, is the question presented here. That instruction provides:

Damages: Pain and suffering, past and future.

The pain and suffering experienced [and reasonably certain to be experienced in the future] as a result of the injury.

The guide for you to follow in determining compensation for pain and suffering, if any, is the enlightened conscience of impartial jurors acting under the sanctity of your oath to compensate the plaintiffs with fairness to all parties to the action. [Emphasis added.]

As summarized by plaintiff from the evidence presented at trial, it is quite apparent that the plaintiff had a permanent scar on his eye, that he had powder particles buried underneath the surface of his cornea, that it is necessary that he have regular checkups because of the increased risk of infection, and that there is a possibility of infection occurring as much as ten or fifteen years in thé future; and that prior to this accident his eyes were essentially healthy except for a slight nearsightedness, whereas at the time of trial he had permanent scars over the cornea of his eyes and his uncorrected visual acuity in each eye was 20-50 or 20-60. It is also clear that he had suffered headaches periodically since the time of the accident and was continuing to suffer them up until the time of trial. However, neither this evidence, nor the assertion, without proof, that Everett had become “extremely frightened” of fireworks is sufficient to establish that future pain and suffering would exist as a result of this accident.

Damages based on surmise, conjecture or speculation cannot be sustained. Damages must be proved with reasonable certainty. Hebenstreit v. Atchison, Topeka & Santa Fe Ry. Co., 65 N.M. 301, 336 P.2d 1057 (1959); Winder v. Martinez, 88 N.M. 622, 545 P.2d 88 (Ct.App.), cert. denied 89 N.M. 6, 546 P.2d 71 (1976). There is no exception to the above rule for future damages. The ultimate fact which the plaintiff has the burden of proving is future damages reasonably certain to occur as a result of the original injury. Carpenter v. Nelson, 257 Minn. 424, 101 N.W.2d 918 (1960); 22 Am. Jur.2d, Damages § 106 (1965).

The trial in this case took place approximately three and one-half years after the accident. The only evidence presented as to pain in plaintiff’s eye was that he suffered for a period of less than two months following the accident. His mother testified that he was no longer suffering at the time of trial. In addition, there was no testimony by an expert, or anyone else, that pain in his eyes would recur in the future. The only pain complained of after September, 1974, was that Everett had intermittent headaches. But the headaches could not. properly form the basis for an instruction on future damages for two reasons: first, there is no evidence that the headaches were causally connected to the accident; second, there was no evidence that they were reasonably certain to occur in the future.

Plaintiff finally argues that where there has been a permanent injury, such as the permanent scarring in this case, pain and suffering will be presumed. While this Court has stated that where physical injuries are pled, it is generally agreed that mental anguish will result, Jones v. Pollock, 72 N.M. 315, 383 P.2d 271 (1963), such a rule is inapplicable to support the proposition claimed by plaintiff. No presumption of future pain and suffering is recognized in New Mexico.

The Supreme Court of South Dakota, in Klein v. W. Hodgman and Sons, Inc., 77 S.D. 64, 85 N.W.2d 289 (1957), adopted the following two-pronged approach for proof of future pain and suffering: ²

There are two rules by which the question of future pain and suffering may be submitted to the jury: If the injury is objective, and it is plainly apparent, from the very nature of the injury, that the injured person must of necessity undergo pain and suffering in the future then most certainly the Plaintiff would not be required to prove a fact so plainly evident, and upon making proof of such an objective injury, the jury may infer pain and suffering in the future. * * * Where the injury is subjective, and of such a nature that laymen cannot, with reasonable certainty know whether or not there will be future pain and suffering, then, in order to warrant an instruction on that point, and to authorize the jury to return a verdict for future pain and suffering, there must be offered evidence by expert witnesses, learned in human anatomy, who can testify, either from a personal examination or knowledge of the history of the case, or from a hypothetical question based on the facts, that the plaintiff, with reasonable certainty, may be expected to experience future pain and suffering, as a result of the injury proved. Supra, page 293.

We find such reasoning to be persuasive. In the instant case, the only conceivable inference of ongoing pain suffered by Everett was his claim of headaches in the back of his head. By the above standard, this would be characterized a “subjective” complaint of the plaintiff. It certainly cannot be deemed to be a matter of common knowledge that one who suffers an eye injury will also suffer headaches in the back of his head. Therefore, to justify an instruction for future pain and suffering it was necessary for the plaintiff to present evidence by a medical expert that these headaches were caused by the accident and that they would continue into the future, and for the expert to present some reasonably certain proof as to the severity and duration with which they would occur. No such testimony was presented. The record is clear that the trial court, over the objection of F & S, instructed the jury that they could award damages for future pain and suffering. This instruction is reversible error since there was no evidence to support it.

Since it is impossible to look behind the general verdict of the jury to determine how much, if any, of the award was intended to be compensation for future pain and suffering, the case is reversed and remanded for a new trial on the issue of damages alone.

IT IS SO ORDERED.

LOPEZ, J., concurs. SUTIN, J., concurs in part and dissents in part.

1 . See, e. g., Suvada v. White Motor Company, 32 Ill.2d 612, 210 N.E.2d 182 (1965); Di-Gregorio v. Champlain Valley Fruit Co., 127 Vt. 562, 255 A.2d 183 (1969); Liberty Mut. ins. Co. v. Williams Machine & Tool Co., 62 Ill.2d 77, 338 N.E. 857 (1975); Texaco, Inc. v. McGrew Lumber Company, 117 Ill.App.2d 351, 254 N.E.2d 584 (1969); Kelly v. Hanscom Brothers, Inc., 231 Pa.Super. 357, 331 A.2d 737 (1974).

2 . Other jurisdictions adopting this rule are Hawaii in Franco v. Fujimoto, 47 Haw. 408, 390 P.2d 740 (1964), and Ohio in Brush v. Eastern Motor Dispatch, 61 Ohio Abs. 219, 104 N.E.2d 700 (Ohio App. 1950).