Appellant Tito Valdez, a candidate for public office, commenced this action as plaintiff against appellees, Jessie M. Gonzales, Secretary of the State of New Mexico, Gaby B. Madrid, County Clerk of Rio Arriba County, New Mexico, and the sureties on their official bonds as defendants to recover damages for negligent printing and delivering of false instructions to precinct election judges.
Motions to dismiss upon the grounds that the complaint did not state facts sufficient to constitute a cause of action were sustained and this appeal followed. The facts are substantially as follows:
The plaintiff was a candidate for the office of county school superintendent of Rio Arriba County, New Mexico, at the general election of 1942. At that time and until January 1 thereafter the defendant Gonzales was the Secretary of State of New Mexico, and the defendant Madrid was the County Clerk of Rio Arriba County, New Mexico. The clerk was charged by law with the duty of delivering to the precinct election officials in Rio Arriba County, supplies and instructions for the conducting of the election in each election precinct. The secretary of state prepared and delivered to the clerk, as part of the election supplies, instructions to voters, and poll books on which were printed instructions to the precinct election officials regarding their duties. (N.M.S.A. 1941 Comp., Sec. 56-319). Among these instructions were the following:
"INSTRUCTIONS TO ELECTION OFFICERS" and above these instructions is printed in as large type as space will permit:
"DO NOT FAIL TO READ ALOUD INSTRUCTIONS INSIDE" Instructions numbers one and four are as follows:
"READ INSTRUCTIONS ALOUD
1. Read aloud to all election officers these instructions and instructions to voters on cards, furnished you by the County *Page 283 Clerk, before opening the polls for voting. * * *CHECK ELECTION SUPPLIES
"4. Inspect and see that you have the necessary election supplies, consisting of:" (here follows a list of necessary election supplies, but an envelope for mailing the poll books to the county clerk is not mentioned.)"DISPOSITION OF POLL BOOKS, ETC.
27. Return ballot box immediately to the county clerk. The person delivering the ballot box should also take with him for delivery to said county clerk, not enclosed in the ballot box, one key in an envelope addressed to said clerk, one poll book certified by the judges of election, the bound book of affidavits of registration, and all unused election supplies. Where there are counting judges, said person should also take with him one poll book certified by the counting judges. Place in the mailing tube furnished the other poll book, or other two poll books where there are counting judges, and mail to the secretary of state at Santa Fe. Place the other key in an envelope addressed to the district judge, and mail the same.""BALLOT BOXES MUST BE DELIVERED WITHIN TWENTY-FOUR HOURS
28. If the voting place is not more than twenty-five miles from the county seat, the ballot box, key, poll book, etc., shall be delivered forthwith to the county clerk by one or more judges of election in person; if a greater distance, by messenger selected by the judges of election for that purpose. Where any ballot box, any poll book, or registration book, are not delivered in accordance with these instructions within twenty-four hours of the close of the polls, the vote in that precinct shall not be counted or canvassed unless a petition is presented to the district judge of the district within which such precinct is contained and a sufficient showing made that the delay was due to forces beyond the control of the election officials, and then only when said district judge shall so find and make an order that the votes cast in said precinct shall be canvassed and become part of the final election result.""PENALTIES
31. Wilful disobedience to the law by an election officer will subject him to heavy penalties."WARNING
32. Failure to follow the foregoing instructions may result in the rejection of the entire vote in your voting division. These instructions must be followed carefully."The Secretary of State, without authority of law, sent with the poll books envelopes on each of which was printed in large letters the following: "To judges of election: Place one poll book (two if there are *Page 284 counting judges) flat in the envelope and seal and fasten and mail at once to the county clerk of your county." One of these envelopes with the usual election supplies was delivered by the clerk to the election officials of each election precinct, prior to the date fixed by law for holding the election. The election officials of each of three precincts in Rio Arriba County placed its poll book in the envelope described and mailed it to the County Clerk of Rio Arriba County as thereon instructed. In the regular course of mail the poll books could not, and did not, reach the County Clerk's office within 24 hours after the closing of the polls on election day.
In each of the precincts mentioned the plaintiff received a substantial majority of votes over his opponent; and received a majority of the votes cast in Rio Arriba County. But because the returns were delayed more than 24 hours after the close of the polls, the county canvassing board refused to canvass and count the votes cast in the three precincts mentioned, with the result that the certificate of election for plaintiff's office was issued to the plaintiff's opponent Bernabe Herrera. If the ballots cast in the three precincts had been canvassed and counted the plaintiff would have received the certificate, and subsequent delays and litigation would have been avoided.
A proceeding was instituted in the District Court of Rio Arriba County to require the canvassing board to count the ballots cast in the three precincts, notwithstanding they were delayed more than 24 hours, but the District Court erroneously ruled that the ballots should not be counted.
Thereafter the plaintiff filed a statutory contest, in which the decisive question was whether the ballots in the boxes mentioned should be canvassed and counted; which question the district court answered in the negative; and judgment was entered for contestee Herrera. An appeal from this judgment was prosecuted to the Supreme Court, and on February 28, 1944, a decision was therein rendered (Valdez v. Herrera, 48 N.M. 45,145 P.2d 864) by which the judgment below was reversed, with instructions to the district court to render its judgment for plaintiff. He took possession of the office on March 1, 1944.
Plaintiff exercised all possible diligence in all proceedings to secure title to and possession of the office to which he had been elected; but notwithstanding such diligence he was deprived of his office from January 1, 1943 to March 1, 1944. While in possession of plaintiff's office the contestee Herrera received $2,916.67 of its emoluments, and the costs of court paid by the plaintiff were $132, for all of which plaintiff obtained judgment against the contestee Herrera. An execution was issued thereon and returned nulla bona, and subsequently contestee Herrera filed bankruptcy proceedings, *Page 285 from which nothing can be realized on the plaintiff's claim.
It is asserted by the plaintiff that all of the defendants are liable to plaintiff for damages sustained by him, to wit, the sum of $3,048.67, with interest at six per cent per annum from February 28, 1944, until paid.
One of the grounds on which the motions to dismiss was sustained is that the defendant officers were not liable in damages to third persons for their negligence.
While envelopes for poll books are not listed among the supplies there could have been no objection to including blank envelopes to be used for the purpose of enclosing the poll books. In fact, the poll books should be securely enveloped and sealed before they are turned over to messengers for delivery to the County Clerk. So the negligence consisted of words — instructions to the judges of election to mail the poll books — contrary to the statutory instructions printed in the poll books, and quoted above.
There is no contract liability to third parties. 1 Restatement of the Law of Contracts, Sec. 145, and there is no allegation of fraud or intentional wrong in plaintiff's complaint. 4 Restatement of the Law of Torts, Sec. 865, reads as follows: "Interference with a Right to Vote or Hold Office. A person who by a consciously wrongful act intentionally deprives another of a right to vote in a public election or to hold public office is liable to the other in an action of tort."
Assuming that the defendant officers owed a duty to these election officials, the presence of that duty to use care depended upon the relation of the parties. Courteen Seed Co. v. Hong Kong Shanghai Banking Corp., 245 N.Y. 377, 157 N.E. 272, 56 A.L.R. 1186.
A question of the liability for negligent language to third persons was involved in the case of Fidelity Deposit Co. of Maryland v. Atherton, 47 N.M. 443, 144 P.2d 157, 161, where we said: "The appellees owed to the board of county commissioners a legal duty to make their reports without fraud, and a contractual duty to make them, under the terms of their contract, with the care and caution required of experts. They likewise owed a duty to third persons, if any, to whom they knew, or reasonably should have known, their employer intended to exhibit their reports, and upon which they might act to their injury, to make such reports without fraud. But there is no finding that appellees made a fraudulent report, or of a reliance upon appellees' report by either the appellant or Armijo, nor, of course, that they, or either of them, was injured by such reliance, so as to bring the case within the doctrine of Ultramares Corp. v. Touche, 255 N.Y. 170, 174 N.E. 441, 74 A.L.R. 1139." *Page 286
Ultramares Corporation v. Touche, supra, is the leading case on the subject of liability for negligent language. In the unanimous opinion of the court Chief Justice Cardozo stated [255 N.Y. 170,174 N.E. 445]:
"The assault upon the citadel of privity is proceeding in these days apace. How far the inroads shall extend is now a favorite subject of juridical discussion. Williston, Liability for Honest Misrepresentation, 24 Harv.L.Rev. 415, 433; Bohlen, Studies in the Law of Torts, pp. 150, 151; Bohlen, Misrepresentation as Deceit, Negligence or Warranty, 42 Harv.L.Rev. 733; Smith, Liability for Negligent Language, 14 Harv. L.Rev. 184; Green, Judge and Jury, chapter Deceit, p. 280; 16 Va.Law Rev. 749. In the field of the law of contract there has been a gradual widening of the doctrine of Lawrence v. Fox, 20 N.Y. 268, until today the beneficiary of a promise, clearly designated as such, is seldom left without a remedy. Seaver v. Ransom, 224 N.Y. 233,238, 120 N.E. 639, 2 A.L.R. 1187. Even in that field, however, the remedy is narrower where the beneficiaries of the promise are indeterminate or general. Something more must then appear than an intention that the promise shall redound to the benefit of the public or to that of a class of indefinite extension. The promise must be such as to `bespeak the assumption of a duty to make reparation directly to the individual members of the public if the benefit is lost.' Moch Co. v. Rennsselaer Water Co., 247 N.Y. 160,164, 159 N.E. 896, 897, 62 A.L.R. 1199; American Law Institute, Restatement of the Law of Contracts, § 145. * * *
"We are now asked to say that a like liability attaches to the circulation of a thought or a release of the explosive power resident in words.
"Three cases in this court are said by the plaintiff to have committed us to the doctrine that words, written or oral, if negligently published with the expectation that the reader or listener will transmit them to another, will lay a basis for liability though privity be lacking. These are Glanzer v. Shepard, 233 N.Y. 236, 238, 135 N.E. 275, 23 A.L.R. 1425; International Products Co. v. Erie R.R. Co., 244 N.Y. 331,155 N.E. 662, 56 A.L.R. 1377, and Doyle v. Chatham Phenix Nat. Bank, 253 N.Y. 369, 171 N.E. 574, [71 A.L.R. 1405.] * * *
"From the foregoing analysis the conclusion is, we think, inevitable that nothing in our previous decisions commits us to a holding of liability for negligence in the circumstances of the case at hand, and that such liability, if recognized, will be an extension of the principle of those decisions to different conditions, even if more or less analogous. The question then is whether such an extension shall be made. *Page 287
"The extension, if made, will so expand the field of liability for negligent speech as to make it nearly, if not quite, coterminous with that of liability for fraud. Again and again, in decisions of this court, the bounds of this latter liability have been set up, with futility the fate of every endeavor to dislodge them. * * *
"Liability for negligence if adjudged in this case will extend to many callings other than an auditor's. Lawyers who certify their opinion as to the validity of municipal or corporate bonds, with knowledge that the opinion will be brought to the notice of the public, will become liable to the investors, if they have overlooked a statute or a decision, to the same extent as if the controversy were one between client and adviser. * * *
"`The assumption of one relation will mean the involuntary assumption of a series of new relations, inescapably hooked together' Moch Co. v. Rensselaer Water Co., supra, at page 168 of 247 N.Y., 159 N.E. 896, 899. `The law does not spread its protection so far' Robins Dry Dock Repair Co. v. Flint, supra, at page 309 of 275 U.S. 48 S.Ct. 134, 135 [72 L. Ed. 290]."
See also State Street Trust Co. v. Ernst, 278 N.Y. 104,15 N.E.2d 416, 120 A.L.R. 1250, and O'Connor v. Ludlam, 2 Cir.,92 F.2d 50. Vol. I, Shearman and Redfield on Negligence, Sec. 30, says:
"A negligent statement, whether spoken or written, may be the basis for a recovery of damages. Not every casual response, not every idle word, however damaging the result, gives rise to a cause of action. Liability arises when the person furnishing information owes a duty to give it with care and the person receiving it has a right to rely and act upon it and does so to his damage. * * *
"The foregoing presents the American as distinguished from the contrary English rule. Under the latter `there is no such thing as liability for negligence in word as distinguished from act.'" * * *
"In the absence of a duty, resting upon the party sought to be charged by reason of a contractual relation or something in the nature of an equivalent to privity, negligent words are not actionable. * * *
"The service was primarily for the benefit of the employer, and only incidentally or collaterally for the use of such others. There was no `liability in an indeterminate amount for an indeterminate time to an indeterminate class.' (Citing Ultramares Corp. v. Touche, supra.)
"The court in the last cited case recognizes a distinct need that liability for negligent language be kept within reasonable limitations. Some such restrictive idea might well be applied to the entire field of negligence. The trend toward increasing liability should be checked." *Page 288
Another ground on which the motion to dismiss was sustained is that the negligence complained of was not the proximate cause of plaintiff's injury. It merely furnished the condition under which the injury was received but did not put in motion the agency by which the injury was inflicted. 38 Am.Jur. p. 702, General American Life Ins. Co. v. Stadiem et al., 223 N.C. 49,25 S.E.2d 202; Briske v. Village of Burnham, 379 Ill. 193, 39 N.E.2d 976; Annotation 64 A.L.R. 519. That was the act of the precinct judges of election who mailed the envelopes containing the poll books instead of delivering them by messenger, as the law and instructions printed in the poll books provided.
The "forseeability" rule has long prevailed in this state. Lutz v. Atlantic Pacific R. Co., 6 N.M. 496, 30 P. 912, 16 L.R.A. 819; Reif v. Morrison, 44 N.M. 201, 100 P.2d 229. "Unless the tort is willful, the wrongdoer is liable only for such consequences as were or should have been contemplated or might have been foreseen." 25 C.J.S., Damages § 25, p. 488.
Should the defendant officers have foreseen that the district court would make an erroneous ruling on the question as to whether the ballots in the boxes from the three precincts should be counted? We think not. The defendant officials had the right to indulge the same presumption that the bench and bar do, namely, that the judge would perform his duty properly. Carini v. Beaven, Roman Catholic Bishop of Springfield, 219 Mass. 117,106 N.E. 589, L.R.A. 1915B 825. Counsel for plaintiff argues that the trial court could not say, as a matter of law, that plaintiff's loss was not the proximate result of the defendant officers' negligence. The case seems to come within the rule stated in Vol. 1 Cooley on Torts (4th Ed.) p. 121, as follows: "But where the facts are undisputed and the inferences to be drawn from them are plain and not open to doubt by reasonable men, it is the duty of the court to determine the question as a matter of law."
Other points are argued, but in view of our conclusion it will not be necessary to consider them.
Finding no error, the judgment of the district court will be affirmed.
It is so ordered.
SADLER, C.J., and BICKLEY, and LUJAN, JJ., concur.
BRICE, J., dissenting.