We have previously recognized that under circumstances where it appears “that an uncertain state of law should not exist and because avoidance of the same involves an issue of substantial public interest, the matters raised on appeal should be resolved by the Supreme Court.” Archibeque v. Homrich, 1975–NMCA–023, ¶ 5, 87 N.M. 265, 531 P.2d 1238 (per curiam). Such a constitutional shift from the United States Supreme Court decision in Glucksberg, one that was recently referenced anew in Obergefell, should be addressed by our state's highest court.

We have previously recognized that under circumstances where it appears “that an uncertain state of law should not exist and because avoidance of the same involves an issue of substantial public interest, the matters raised on appeal should be resolved by the Supreme Court.” Archibeque v. Homrich, 1975–NMCA–023, ¶ 5, 87 N.M. 265, 531 P.2d 1238 (per curiam). Such a constitutional shift from the United States Supreme Court decision in Glucksberg, one that was recently referenced anew in Obergefell, should be addressed by our state's highest court.

When requested instructions are proper and the court refuses to give them, the failure of the court to explain why they were not given constitutes reversible error. Clinard v. Southern Pacific Company, 82 N.M. 55, 475 P.2d 321 (1970); see Archibeque v. Homrich, 87 N.M. 265, 270, 531 P.2d 1238 (Ct.App. 1975), certification to Supreme Court, Sutin, J. It would have been helpful in this appeal if the court had explained its refusal to give the requested instructions. Was Moss entitled to instructions on implied warranty?

6. Evidence Rule 301 was not discussed in Archibeque v. Homrich, 88 N.M. 527, 543 P.2d 820 (1975). Compare opinion of Judge Hernandez in the same case, 87 N.M. 265, 531 P.2d 1238 (Ct.App. 1975). The facts of Archibeque suggest a case for application of the presumption involved in this case; however, res ipsa loquitur was involved.