Apodaca v. Baca

Citation1963 NMSC 167,73 N.M. 104,385 P.2d 963
Decision Date16 September 1963
Docket NumberNo. 7245,7245
PartiesAntonio APODACA, Plaintiff-Appellant, v. Jose BACA and Gavin Maloof & Company, Defendants-Appellees.
CourtSupreme Court of New Mexico

Lorenzo A. Chavez, Melvin L. Robins, Albuquerque, for appellant.

Modrall, Seymour, Sperling, Roehl & Harris, Leland S. Sedberry, Jr., Albuquerque, for appellees.

CHAVEZ, Justice.

This is an action for damages for personal injuries. In his complaint, plaintiff-appellant alleged that, while driving his automobile in a southerly direction over the railroad overpass in Tucumcari, New Mexico, appellee, Joe A. Baca, acting in the course of his employment by appellee, Gavin Maloof & Company, was driving a truck in a northerly direction on said overpass; that as the two vehicles approached each other, appellee Baca so negligently operated the truck that part of it struck the left side of appellant's automobile, causing a fracture of appellant's left arm. Appellees answered, denying any negligence and alleged that appellant was guilty of contributory negligence. Appellees admitted the allegations as to the identity of appellees and that Baca was employed by Gavin Maloof & Company.

The case was tried before a jury. At the conclusion of the evidence, appellant moved to strike the testimony of Dr. H. V. Beighley in regard to the interpretation of the blood test, and moved the court to instruct the jury to disregard testimony relative to appellant's and Charlie Lucero's drinking on the day prior to the accident. Both motions were denied. A verdict for appellees was returned and judgment on the verdict entered. This appeal followed.

As appellant was driving in a southerly direction on the bridge, his left arm was resting on the window sill of his car, his elbow sticking out past the side of the car. Appellant testified that he remained on the west side of the bridge at all times as he was crossing said bridge and that, as his car was meeting appellee's truck, the rear door of the truck swung out and struck his arm. Appellee Baca testified that he was driving the truck on the east side of the overpass, about 10 or 15 miles per hour that when he first saw appellant's car it was on appellee's side, the east side of the road; that it hit the east curb, bounced back to the west side 'kind of sharply,' straightened out and struck the bottom part of the door of the truck. Baca further testified that the back doors of the truck were hooked flat against the side of the body when he left the warehouse, and that the doors of the truck were hooked when he examined them after the accident. Soloman J. Fresquez, who was riding with appellee on the right-hand side of the truck, was looking east down the overpass and did not see appellant's car until right before the collision. Appellant's car was going fast at that time. After the collision, Fresquez and Baca checked the door to the truck; the door of the truck 'wasn't damaged at all, just a little old scratch.' The truck door was locked in position before and after the accident. Fresquez also found the tire marks left by appellant's automobile on the west and east side of the curb, and showed Officer Shaw the scene of the accident. Fresquez thought that appellant was 'drunk or something.'

Appellant was treated at the Tucumcari General Hospital by Dr. A. T. Gordon for a fracture of the radius and the ulna of the left arm on May 23, 1960, about 1:00 p. m. Later, appellant returned to the hospital, as there was some more debridement, and a cast was put on at that time. As of the time of trial, appellant's left arm was angulated almost ninety degrees and had not properly healed. Appellant had impaired circulation in the arm.

About noon on Sunday, the day prior to the accident, appellant, together with Charlie Lucero and other relatives, traveled from Tucumcari to Dalhart, Texas, and were drinking beer. On the way back from Dalhart, Charlie Lucero and the others drank some beer but Lucero did not know whether or not appellant drank beer at that time. They returned home about 11:00 p. m. that night from Dalhart.

On the day the accident occurred, appellant drank at least three bottles of beer before noon. The accident occurred between 1:00 and 1:30 p. m. Officer Dudley Shaw testified that he investigated the accident and that he noted a very decided odor of alcohol on appellant's breath when appellant was in the emergency room at the hospital. At the hospital, Officer Shaw ordered Dr. A. T. Gordon to make a blood-alcohol test on appellant. A sample of blood was taken from appellant's body while he was unconscious and without having appellant's consent. A nurse withdraw the blood but Dr. Gordon was there in attendance. The blood sample was sealed in a test tube, marked and packaged by Dr. Gordon in the presence of Shaw, and Shaw retained possession of it until he took it to the Post Office and mailed it to Albuquerque for analysis. Dr. Beighley testified that the blood-alcohol test showed .19% alcohol and that persons who have that blood-alcohol content are under the influence of alcohol.

Under point II, which is decisive of this case, appellant contends that the trial court erred in admitting evidence of a blood-alcohol test when no proper foundation for its admission was made. Appellant says that evidence of a blood-alcohol test was admitted without it first having been established that the blood tested was appellant's blood; or if it was appellant's blood that was tested, that it was the blood withdrawn from appellant on the day the accident occurred.

Appellant directs our attention to discrepancies in the evidence as to who withdrew the blood from appellant. Dr. Gordon could not remember whether he or his nurse withdrew the blood, but stated that either he or his nurse withdrew the blood, and that if he did not do so that it was done under his direction. Dr. Gordon testified that the blood was withdrawn and placed in a dry, sterile tube, and that it was sent to Van Atta Laboratory in Albuquerque for analysis; that before he gave the specimen to Shaw, he placed a label on the specimen setting forth appellant's name, the name of the laboratory, and the purpose of the specimen.

Officer Shaw testified that the nurse, Mrs. Hitch, withdrew the blood in the presence of Dr. Gordon and himself; that after seeing the blood withdrawn from appellant, he took it into his possession and went to Dr. Gordon's office, where Dr. Gordon sealed the tube with a piece of cellophane tape, packaged the blood sample in his presence, and then Shaw took the package to the Post Office and mailed it on May 23, 1960. Officer Shaw was shown Exhibit No. 13, which was identified but not offered or admitted.

Dr. H. V. Beighley, of the Beighley Laboratory in Albuquerque, testified that on or about May 27, 1960, he received a request from the Tucumcari Police Department...

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15 cases
  • State v. Manlove, 87
    • United States
    • Court of Appeals of New Mexico
    • April 19, 1968
    ...by the court. White v. State, 203 Ga. 340, 46 S.E.2d 500 (1948); James v. Fairall, 168 Iowa 427, 148 N.W. 1029 (1914); Apodaca v. Baca, 73 N.M. 104, 385 P.2d 963 (1963); State v. Romero, 34 N.M. 494, 285 P. 497 (1930); State v. Ulibarri, 28 N.M. 107, 206 P. 510 (1922); Commonwealth v. Repyn......
  • State v. McAfee
    • United States
    • New Mexico Supreme Court
    • June 12, 1967
    ...to determine the weight to be given the testimony, State v. Turnbow, 67 N.M. 241, 354 P.2d 533, 89 A.L.R.2d 461 (1960); Apodaca v. Baca, 73 N.M. 104, 385 P.2d 963 (1963), and determine the credibility of the witnesses, State v. Ortega, 77 N.M. 7, 419 P.2d 219 (1966); Chavez v. United States......
  • South v. Lucero
    • United States
    • Court of Appeals of New Mexico
    • April 3, 1979
    ...might happen in a murder mystery but we cannot accept it as a missing link in this case. Plaintiffs rely heavily on Apodaca v. Baca, 73 N.M. 104, 385 P.2d 963 (1963). In Apodaca, prior to the enactment of the Office of Chief Medical Investigator, a missing link occurred in the chain of evid......
  • State v. Harrison
    • United States
    • Court of Appeals of New Mexico
    • May 28, 1970
    ...defendant's contention concerning a missing link in the chain of custody. Here there is no absence of evidence as in Apodaca v. Baca, 73 N.M. 104, 385 P.2d 963 (1963). The federal agent's testimony conflicts with the testimony of Foote. The conflict did not, however, render the evidence Def......
  • Request a trial to view additional results

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