Alvarado Min. & Mill. Co. v. Warnock.

• Decision Date: 29 October 1919
• Docket Number: No. 2258.,2258.
• Citation: 25 N.M. 694,187 P. 542
• Court: New Mexico Supreme Court
• Parties: ALVARADO MIN. & MILL. CO.v.WARNOCK.

25 N.M. 694

187 P. 542

ALVARADO MIN. & MILL. CO.

v.WARNOCK.

No. 2258.

Supreme Court of New Mexico.

Oct. 29, 1919.On Rehearing, Feb. 24, 1920.

Syllabus by the Court.

Assignments of error not argued in brief will be deemed to be waived and will not be considered by this court.

An objection to the introduction of evidence which does not specify the particular ground on which the evidence is objectionable does not call the trial court's attention to the matter to be decided, and on appeal will be treated as if no objection to such evidence had been made.

Where the evidence shows that the defendant, without authority or right, mined, shipped, and sold ore from the plaintiff's property, the measure of damages for such conversion is the net value of the ore, and defendant is not entitled to deduct therefrom the expenses of mining, freight, and smelting charges.

On Rehearing.

Additional Syllabus by Editorial Staff.

In an action for conversion of ore, an objection that exemplary damages recovered were not alleged was without merit, where point was not raised below.

Error to District Court, Otero County; Medler, Judge.

Action by George Warnock against the Alvarado Mining & Milling Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Where the evidence shows that the defendant, without authority or right, mined, shipped, and sold ore from the plaintiff's property, the measure of damages for such conversion is the net value of the ore, and defendant is not entitled to deduct therefrom the expenses of mining, freight, and smelting charges.

Walthall & Gamble, of El Paso, Tex., J. L. Lawson, of Alamogordo, and F. C. Wilson, of Santa Fé (D. K. Sadler, of Santa Fé, of counsel), for plaintiff in error.

F. J. Lavan, of Los Angeles, Cal., and A. B. Renehan, of Santa Fé, for defendant in error.

RAYNOLDS, J.

[1] The complaint in this case alleged that the plaintiff, George Warnock, was the owner of certain mining claims; that the defendant company had removed copper ore from said claims and converted the same to its own use, without right or authority so to do. Plaintiff asked damages for such conversion. Defendant admitted ownership in the plaintiff of the claims, but denied that the removal of such ore was without right or authority, alleging that it was operating under and by authority of certain leases and contracts set out as exhibits in its answer. Jury was waived, and the case tried by the judge, who found for the plaintiff, and assessed his damages at the sum of $3,794.55, the amount which, by amendment, without objection, the plaintiff at the beginning of the trial was granted leave to insert in his complaint as damages. From such judgment the defendant company sued out a writ of error to this court, and assigned 15 errors as ground for reversal, only 3 of which need be considered; the others being treated as abandoned because not argued in the brief. Klasner v. Klasner, 23 N. M. 627, 170 Pac. 745; Clark v. Queen City Insurance Co., 22 N. M. 387, 163 Pac. 371.

[2] Plaintiff in error in its first two assignments urges that the trial court erred in admitting the six statements of account taken from the books of the American Smelting & Refining Company, such statements purporting to show the settlements on ore received by said refining company from the Alvarado Mining & Milling Company, the plaintiff in error herein. It is contended that the proper foundation was not laid for the introduction of this evidence, and that the statute, Code 1915, § 2187, was not complied with. The evidence in question was taken by the deposition of a witness, and copies of what the books of the company purported to show in regard to the transaction were attached as exhibits to the deposition. The witness testified that he was the assistant manager of the accounting department of the American Smelting & Refining Company; that the books were the regular books of the company; that he had these books under his control, and that the copies attached were correct copies of what the books showed in regard to the transaction in question. The statute cited above and the so-called Shop Book Rule have been passed upon by this court in former cases, and have been held on the one hand to supersede the common-law rule (Price v. Garland, 3 N. M. [Gild.] 505, 6 Pac. 472), and on the other hand to merely supplement the common law (McKenzie v. King, 14 N. M. 375, 93 Pac. 703). In the latter case it was held that when the clerk who kept the books is present and testifies, the other requirements of the statute can be dispensed with.

We agree with the appellee's contention that under the circumstances of this case and the manner in which a large foreign corporation keeps its books, the requirement for the introduction of them in evidence could not be complied with under our statute, and that such statute was probably only intended to prevent fabrication of testimony by a party to the suit. We do not deem it necessary, however, to consider the objections to this class of testimony, for the reason that no proper objection was made to its introduction. This court has held in numerous cases that only such assignments of error can be considered as were brought to the attention of the trial judge so as to enable him to correct them. Crabtree v. Segrist, 3 N. M. (Gild.) 500, 6 Pac. 202; Chaves v. Myer, 13 N. M. 368, 85 Pac. 233, 6 L. R. A. (N. S.) 793; Duncan v. Holder, 15 N. M. 323, 107 Pac. 685; Territory v. Mills, 16 N. M. 555, 120 Pac. 325. In justice and fairness to the trial court the grounds of objection should be stated in order that he may rule intelligently upon the question presented. This case is a good illustration of the justice and fairness of such a rule, and illustrates why a broad general objection to the evidence gives the trial court no notice of the vice to which the objector should seek to call the trial court's attention. The testimony was taken by deposition. The first objection was made to interrogatory 3, which interrogatory was:

“If you state that you are assistant manager of the accounting department of the same company, please state whether or not you have under your control books showing returns covering a shipment of copper ore from Alamogordo, N. M., by the Alvarado Milling & Mining Company, of El Paso, Tex., to the smelter of the American Smelting & Refining Company in the month of July, 1917”

-to which objection was made as follows:

“Object to No. 3. No proper foundation laid. (Objection overruled. Exception.)”

The same objection was made to interrogatory No. 4, and an exception taken to the overruling of such objection. The interrogatory was:

“If you state that you have such books under your control, please state whether they are the regular books of the said company, and, if so, state what they show with reference to the returns on the said shipment of copper ore, and attach a copy of the return of the smelter, and show particularly the gross proceeds from the said ore, and had the said return to the officer taking these depositions, and have him mark the same ‘Plaintiff's Exhibit A’ and attach to these depositions.”

The objection, as before stated, was:

“Object. No proper foundation laid.”

What does this objection mean? Was it intended to call the court's attention to the fact that secondary evidence was being introduced where primary or the best evidence was necessary, and the absence of said primary or best evidence had not been accounted for so as to permit the introduction of secondary evidence? Was it objected to on the ground that it was hearsay evidence, or on the ground that the conditions and requirements under the statute had not been complied with to introduce shop books in evidence? The...