Chavez v. Chenoweth
| Decision Date | 10 August 1976 |
| Docket Number | 2252,Nos. 2320,2562,s. 2320 |
| Parties | Becci CHAVEZ, Plaintiff-Appellant, v. Victor CHENOWETH, Defendant-Appellee. Becci Chavez MARTONE, Plaintiff-Appellant, v. Howard HICKS, Louis A. Keating, and State Farm Mutual Insurance Co., Defendants-Appellees (two cases). |
| Court | Court of Appeals of New Mexico |
The cars driven by plaintiff and Chenoweth collided. Plaintiff sued Chenoweth for negligence. The jury returned a verdict for Chenoweth. Plaintiff's suits against the other defendants were dismissed for failure to state a claim upon which relief could be granted. Plaintiff appeals the judgment entered on the adverse verdict and from the dismissal of her claims against defendants other than Chenoweth. We consider the various issues under three general categories: (1) the liability action against Chenoweth; (2) whether the dismissal of claims against other defendants is properly before us, and (3) whether claims for relief have been stated against the defendants other than Chenoweth.
Plaintiff was driving east on a city street; defendant was driving west. Defendant was turning left into a parking lot when the cars collided.
In the instruction stating the issues (see U.J.I. Civil 3.1) the jury was informed that each party claimed the other party failed to yield the right-of-way. Plaintiff objected to the jury being informed that Chenoweth claimed that plaintiff failed to yield the right-of-way. Plaintiff contends she had no duty to yield the right-of-way to Chenoweth because under the statute, a left-turning part has no right-of-way over oncoming traffic.
Plaintiff relies on § 64--18--24, N.M.S.A.1953 (2d Repl.Vol. 9, pt. 2) which prohibits the turning of a vehicle to enter a private driveway 'unless and until such movement can be made with reasonable safety.' Because this statute applies to the turning vehicle, plaintiff asserts there was no right-of-way rule applicable to her--the nonturning vehicle. Although Brizal v. Vigil, 65 N.M. 267, 335 P.2d 1065 (1959) involved an intersection collision, the 'time and distance' rule stated therein answers plaintiff's contention.
Brizal states: '. . . Brizal having entered the intersection at such interval of time and distance as to safely cross ahead of the vehicle approaching from the east, had its driver been exercising due care, the statute secured to him the prior use of the intersection.'
Similarly, § 64--18--24, supra, required Chenoweth initially to yield the right-of-way. However, having started his turn at such interval of time and distance as to safely cross ahead of plaintiff's approaching car, had plaintiff been exercising due care, the statute secured to Chenoweth the prior use of the street to complete his turn. Stated another way, plaintiff was obligated to yield the right-of-way to Chenoweth in the situation where there would be a danger of collision if both vehicles continued the same course at the same speed. Sivage v. Linthicum, 76 N.M. 531, 417 P.2d 29 (1966).
The evidence of time and distance was such that there was a factual issue as to each party concerning failure to yield the right-of-way. See Langenegger v. McNally, 50 N.M. 96, 171 P.2d 316 (1946).
In his opening statement, Chenoweth's attorney stated there would be testimony that plaintiff was speeding. At this point plaintiff's attorney objected and moved for a mistrial. The motion was denied; the trial court instructed the jury concerning the function of opening statements, concluding with these words: 'So you disregard all statements made by counsel, other than when they tell you what the evidence is going to be, what they will produce as evidence.'
Plaintiff contends her motion for a mistrial should have been granted because her case was prejudiced when Chenoweth's attorney referred to plaintiff's insurance. We disagree. The reference to insurance was in counsel's opening statement. The trial court told the jury to disregard counsel's statements if they went beyond informing the jury what the evidence would be. Plaintiff contends the trial court should have instructed the jury to disregard any reference to insurance. Plaintiff did not request the trial court to do so.
The reference to insurance was inproper. See the discussion in Selgado v. Commercial Warehouse Company, 86 N.M. 633 526 P.2d 430 (Ct.App.1974). However, the time in the trial when the reference occurred and the trial court's prompt admonition was sufficient to eliminate any prejudicial effect from the reference. Compare, Higgins v. Hermes, 522 P.2d 1227 (Ct.App.) decided June 13, 1976.
During her cross-examination, plaintiff affirmed that she had given a statement to Howard Hicks, that the statement was in the form of questions and answers, and that the document she was shown looked like her statement. Plaintiff admitted that in answer to one question she stated her speed was approximately forty miles per hour.
On redirect examination plaintiff testified that her statement had been a recorded statement, that she first saw a transcript of the recording in her attorney's office and that she had never signed the statement.
During the redirect examination plaintiff tendered testimony to the effect that Hicks was an agent of State Farm Insurance Company representing Chenoweth. The tender was refused; plaintiff says this was error.
In support of admissibility of the tendered testimony, plaintiff asserts her statement had been used to impeach her and that she was entitled to show the adverse interest, and therefore the prejudice, of Hicks.
This argument misconstrues the record. The fact situation is far different than that in Wood v. Dwyer, 85 N.M. 687, 515 P.2d 1291 (Ct.App.1973) where the witness stated that words in the statement were written by the insurance company representative. Here plaintiff affirmed her statement; there was no impeachment. Compare, Anderson v. Welsh, 86 N.M. 767, 527 P.2d 1079 (Ct.App.1974).
The tendered testimony did not come within the grounds for admissibility stated in Evidence Rule 411 and, accordingly, was properly rejected.
At the close of the evidence plaintiff moved for a mistrial on the ground that Chenoweth had not called Hicks as a witness. Plaintiff's contention was that in the opening statement, counsel had stated that the insurance agent would be called as a witness.
Plaintiff misconstrues the record. There was no reference in the opening statement suggesting that an insurance company representative would be called as a witness. But even if there had been, there would have been no error in failing to call such a witness absent a showing of bad faith or an improper reference to facts unable to be proved. State v. Garcia, 83 N.M. 51, 487 P.2d 1356 (Ct.App.1971); State v. Torres, 81 N.M. 521, 469 P.2d 166 (Ct.App.1970).
Plaintiff moved, under Civil Procedure Rule 34, for an order permitting the inspection of 'any' document in the file of the insurance company 'referring to the above entitled cause'. The motion was granted 'subject to a determination by the Court of the contents and what is material and discoverable from said files'. Subsequently the trial court examined the insurance company's file and found that 'the items are privileged or that the items are not discoverable because they are immaterial irrelevant and do not rend to lead to admissible evidence'. The trial court ruled that plaintiff was entitled to all medical information in the file but that plaintiff was not entitled to examine the contents of the file.
Plaintiff contends the ruling of the trial court was error. The trial court's ruling accords with the limitation upon inspection stated in Civil Procedure Rule 34. State Farm insured both plaintiff and Chenoweth, a situation with the potential for a conflict of interest. Varney v. Taylor, 71 N.M. 444, 379 P.2d 84 (1963). In this situation we cannot say that the trial court's ruling was error as a matter of law. The file was not included within the record on appeal. Accordingly, we cannot determine if the ruling was erroneous as a matter of fact because the record is insufficient to make such a determination. Macnair v. Stueber, 84 N.M. 93, 500 P.2d 178 (1972); State v. Wingate, 87 N.M. 397, 534 P.2d 776 (Ct.App.1975).
The defendants other than Chenoweth are Hicks, Keating and State Farm. Plaintiff contends the trial court erred in dismissing the claims against these three defendants. These defendants assert this contention is not properly before us for review. The contentions involve the procedural history of the litigation.
Plaintiff's original suit was against all four of the defendants. The trial court granted a summary judgment dismissing the claims against Hicks, Keating and State Farm 'without prejudice'. Plaintiff appealed. In Cause No. 1813, this Court dismissed the appeal for lack of an appealable order under either Civil Procedure Rule 54(b) prior to its amendment in 1973 or under Civil Procedure Rule 54(b)(1) after the amendment.
Plaintiff then filed a new lawsuit against Hicks, Keating and State Farm realleging the same contentions made in the first lawsuit. The trial court dismissed all the claims against Hicks and Keating, and two of the three claims against State Farm. These dismissals were with prejudice for failure to...
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