Baum v. Orosco

Decision Date16 July 1987
Docket NumberNos. 8286,8291,s. 8286
Citation1987 NMCA 102,742 P.2d 1,106 N.M. 265
PartiesRichard BAUM, Plaintiff, Counterdefendant, Appellee and Cross-Appellant, v. Richard OROSCO and Joe L. Orosco, Sr., Defendants-Appellants, Joe L. OROSCO, Sr., Defendant, Counterclaimant, Counterplaintiff, Appellant and Cross-Appellee, v. The CITY OF HOBBS, et al., Counterdefendants, Appellees and Cross-Appellants.
CourtCourt of Appeals of New Mexico

GARCIA, Judge.

This appeal comes before this court for decision after the case was submitted to an advisory committee pursuant to an experimental plan. See Patterson v. Environmental Improvement Div., 105 N.M. 320, 731 P.2d 1364 (Ct.App.1986); Stoll v. Dow, 105 N.M. 316, 731 P.2d 1360 (Ct.App.1986); Boucher v. Foxworth-Galbraith Lumber Co., 105 N.M. 442, 733 P.2d 1325 (Ct.App.1986). The committee rendered a unanimous decision and the parties were so notified. Defendant Joe L. Orosco, Sr. filed a response memorandum. This court has considered the transcript and briefs in this case, together with the opinion of the advisory committee and defendant's response memorandum. It is the decision of this court that the opinion of the advisory committee should be adopted in modified form, as follows:

Defendants, Richard Orosco and Joe L. Orosco, Sr., appeal the judgments rendered against them on plaintiff's complaint for personal injuries and battery and the judgments rendered against Joe L. Orosco, Sr.'s counterclaim for civil rights violations and personal injuries. We have consolidated both appeals.

Richard Orosco's only issue on appeal is whether the trial court abused its discretion in denying his tender of character evidence on his behalf. Joe L. Orosco, Sr. raises five issues on appeal: 1) whether the trial court erred in bifurcating the trial and in denying the second trial; 2) whether the trial court erred in refusing to admit polygraph evidence; 3) whether the trial court abused its discretion in instructing the jury to disregard eyewitness Larry Courtney's opinion concerning the cause of the altercation; 4) whether the trial court erred in limiting evidence of plaintiff's prior bad acts; and 5) whether the trial court erred in refusing to include counterplaintiff's proffered instructions and interrogatories in its charge to the jury. We affirm.


On February 15, 1981, a disturbance arose at an automobile racetrack in Hobbs, New Mexico. In response to a radio call, plaintiff, a city policeman, was dispatched to the racetrack. There, an altercation ensued involving plaintiff, both defendants and other officers of the Hobbs Police Department. In the course of this altercation, defendant Richard Orosco struck plaintiff in the eye.

The plaintiff subsequently filed suit in the district court seeking judgment for injuries alleged to have been sustained as a result of the battery committed upon him by the defendants. While Richard Orosco answered, denying the allegations, Joe L. Orosco, Sr. filed a counterclaim against the plaintiff and impleaded, as third-party defendants, the city of Hobbs, its chief of police and two other officers of the Hobbs police department who were present at the altercation. Joe L. Orosco, Sr.'s counterclaim and cross-claim sought damages for personal injuries allegedly received by being battered by the various police officers and for deprivation of civil rights.

The trial court decided, upon a motion by plaintiff and counterdefendants, to bifurcate the trial and sever Joe L. Orosco, Sr.'s counterclaims of excessive force, false arrest and false imprisonment from the supervisory claims against the city of Hobbs and its chief of police. Judgment was entered for plaintiff against defendants and it was ordered that defendant Joe L. Orosco, Sr. take nothing by his counterclaim and cross-claim.


Defendant asserts the trial court should have allowed his character witnesses to testify regarding his reputation in the community for truthfulness and his reputation for being a peaceful, law-abiding citizen. He offered this evidence under SCRA 1986, 11-404(A)(1). The trial court held that "the plain reading of Rule 404 limits it to criminal cases and we will not have trait evidence in this civil case."

We agree with defendant that character evidence is admissible in a civil case where character is in issue. See In re Ferrill, 97 N.M. 383, 640 P.2d 489 (Ct.App.1981); see also 2 J. Weinstein & M. Berger, Weinstein's Evidence p 404 (1986). Nonetheless, the admissibility of character evidence in a civil case is narrower than in a criminal case, and the trait of character, desired to be proved by testimony in the form of opinion or evidence of reputation, must be directly in issue. Cf. In re Ferrill (evidence of the character of the beneficiary may be admitted when a will is contested on the grounds of undue influence). See also Moore v. Davis, 27 S.W.2d 153 (Tex.Com.App.1930) (in defamation action where the slander charged bad character and the defendant pleads truth, character is in issue). Here, defendant's veracity was not an element of the claim, see In re Ferrill, and, while credibility is always a factor in any case, it was not directly in issue here. Consequently, evidence of defendant's reputation for truthfulness was irrelevant and properly excluded. We will uphold the decision of the trial court if it is right for any reason. State v. Beachum, 83 N.M. 526, 494 P.2d 188 (Ct.App.1972).

Additionally, under the facts of this case, we hold the testimony offered as to defendant's reputation for peacefulness was also irrelevant. We agree with the majority rule that in a civil action for assault and battery, evidence offered to show the general reputation of either party for being peaceful and law-abiding is inadmissible. See generally Annotation, Admissibility of Evidence of Character or Reputation of Party in Civil Action for Assault on Issues Other than Impeachment, 91 A.L.R.3d 718 (1979). However, we also agree that where aggression or self-defense is in issue, evidence of a defendant's peaceful, law-abiding nature is admissible to show that he was not the aggressor. See id.

This case presents the unusual twist of undisputed evidence that defendant was already involved in another fight when plaintiff was called to the scene. When immediately prior to the incident in question, defendant admits to being in the midst of a violent affray, evidence of his peaceful nature in the past ceases to be relevant and is no longer admissible. Cf. Fahey v. Crotty, 63 Mich. 383, 29 N.W. 876 (1886). Thus, we determine defendant's proffered evidence was inadmissible and affirm the trial court's exclusion, although not for the same reason stated by the trial court. See State v. Beachum.

Issue 1

Defendant first argues that the trial court erred in bifurcating the trial and in subsequently denying the second trial. We do not agree.

The bifurcation separated the claims against the city of Hobbs and the police chief from the claims against plaintiff. The claims against the city and the police chief for inadequate training and supervision are secondary to, and dependent upon, successful prosecution of the complaint against the police officer. The trial court determined that a successful defense by plaintiff in the first trial prevented a second trial.

Defendant's essential argument is that the bifurcation denied him the opportunity to fully litigate his negligence claims under the comparative negligence doctrine. Defendant misapprehends the mechanical application of comparative negligence.

The purpose of the comparative negligence doctrine is to apportion liability among all tortfeasors only to the extent of their own fault. See, e.g., Scott v. Rizzo, 96 N.M. 682, 634 P.2d 1234 (1981); Bartlett v. New Mexico Welding Supply, Inc., 98 N.M. 152, 646 P.2d 579 (Ct.App.1982). The trial court correctly determined that in order for the second half of defendant's claims to have efficacy, there must be a finding of liability on the part of plaintiff. If the jury found that plaintiff committed no wrong against defendant and that, in fact, defendant was the wrongdoer, then defendant's claims against the city of Hobbs and its chief of police must necessarily fail. It would be against all logic for a jury to find plaintiff blameless but find the city of Hobbs and its chief of police negligent in their supervision, training and hiring of plaintiff as the cause of defendant's damages. On the other hand, had the jury found that plaintiff was liable, defendant's claims against counterdefendants would have been made all the easier to prove.

Moreover, we can see no way in which the bifurcation of these claims compromises findings of comparative negligence. The same jury would be hearing both segments of the case and, at the conclusion of the second segment, the jury could apportion percentages of fault as usual. It is of no consequence in the scheme of comparative negligence whether claims are heard separately or together; the apportionment of fault is based on the whole.

A trial judge may order bifurcation of a trial, or separate trial of any claim or separate issue, when separate trials will be conducive to expediting the cause and is in the furtherance of fairness and judicial economy. SCRA 1986, 1-042. The bifurcation of a trial is a matter within the sound discretion of the trial court and will not be disturbed upon appeal absent an abuse of discretion....

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