Briggs v. Zia Co., 6233

• Decision Date: 29 August 1957
• Docket Number: No. 6233,6233
• Citation: 315 P.2d 217,63 N.M. 148,1957 NMSC 74
• Parties: Hannah Elizabeth BRIGGS, Plaintiff-Appellee, v. The ZIA COMPANY and United States Fidelity & Guaranty Company, Defendants-Appellants.
• Court: New Mexico Supreme Court

Page 217

315 P.2d 217

63 N.M. 148

Hannah Elizabeth BRIGGS, Plaintiff-Appellee, v. The ZIA COMPANY and United States Fidelity & Guaranty

Company, Defendants-Appellants.

No. 6233.

Supreme Court of New Mexico.

Aug. 29, 1957.

Seth & Montgomery, Oliver Seth and William R. Federici, Santa Fe, for appellants.

Joseph L. Smith, Henry A. Kiker, Jr., Albuquerque, for appellee.

McGHEE, Justice.

The defendants, employer and insurer, appeal from a judgment of the district court awarding claimant, employee's widow, additional compensation under the Workmen's Compensation Act for failure of employer to furnish safety devices in general use in the industry engaged in as provided by ch. 29, section 1, L.1955.

Claimant's husband was fatally injured while working at a hot mix plant of Zia Company on July 29, 1955. At the time, Zia Company was engaged in city management and maintenance at Los Alamos. It also undertook the paving and maintenance of roads in that community, and supplied electric power to the city. The plant at which decedent was employed supplied hot paving mixtures for roads.

At time of accident a heavy motor was being moved from the plant for purposes of repair, and in moving it a large crane of the defendant company was used. While the decedent was standing on the ground and holding onto the motor being lifted by the crane, one of the crane cables came in contact with an energized electric line of high voltage, resulting in electrocution of the decedent.

The employer paid claimant full compensation at the regular rate of $30 per week and the sole issue before the trial court was whether the defendant employer was negligent in failing to provide a reasonable safety device in general use for the protection of claimant's husband so as to entitle claimant to an additional fifty percent award. Verdict and judgment of the court were for claimant, and appellants bring error on the following grounds: (1) Certain evidence was inadmissible without which there would not be substantial evidence to support the judgment, and (2) there was prejudicial error in instructions to the jury.

The appellants maintain on this appeal that testimony of witnesses as to 'general use' of safety devices in an industry is inadmissible as being an ultimate fact and an invasion of the jury's province. An example of this testimony is as follows:

'Q. State whether or not * * * there are any additional safety devices other than those which you have mentioned that were in general use and furnished generally for the use or safety of workmen in connection with the lifting of objects near electric power lines. A. There is.

'Mr. Reid: Object on the ground it calls for a conclusion of the witness as to what is in general use. That invades the province of the jury.

'Court: Overruled.

'A. There is in use in general use what is known as a Line Hose. This is a hose that is purchased on the market and it is pliable on one side, one portion of it is split so you can separate it and put it down over the wire at very minimum expense * * *.'

It is appellants' theory that the witnesses should have been restricted to giving specific examples of the use of safety devices, and that it should have been left to the jury to determine whether or not such use was 'general' in the industry. Appellants are actually raising the old problem of exclusion of 'opinion' evidence, and the authorities cited in their brief for the most part relate to that question. See, Wigmore on Evidence, Sec. 1920 (3rd ed. 1940); McCormick, Evidence, 22 (1954). It is not necessary that we become involved in that argument as the rules of evidence relating to 'general usage' or 'custom and usage' have taken on some individual aspects of their own. A witness qualified to do so may testify directly as to a general use or custom, without being restricted to testifying as to a particular example thereof. As stated in Jarecki Mfg. Co. v. Merriam, 104 Kan. 646, 180 P. 224, 226:

'The factum probandum, existence of the custom relied on, does not consist merely of isolated instances or occurrences. It is rather the comprehensive result of a series of similar instances, satisfying the conditions necessary to a good custom, and so may be testified to directly. 3 Wigmore on Evidence, Sec. 1954. The grounds of a witness' knowledge may, however, be ascertained, and when the facts upon which knowledge assumes to rest are disclosed, the propriety of the inference or conclusion is disclosed.'

In some jurisdictions it has been held that 'general usage' is a 'fact' and cannot be established by specific examples. In the case of Green Mountain Log Co. v. Columbia & N. R. R. Co., 141 Or. 188, 16 P.2d 1106, 1108, it was sought to prove a general usage of ascertaining board feet of logs by giving specific examples of 'freight scale' as the method generally employed. The court ruled:

'It was not proper, however, on direct examination to prove custom or usage by reference to particular instances wherein carriers followed certain methods of scaling logs for the purpose of determining freight charges. On direct examination, the witness, after being qualified should have been asked in substance whether he knew of any general custom or usage in the Columbia river district, during the time in question, relative to the method of scaling logs for freight charge purposes. If the witness answered in the affirmative, he should state, as a matter of fact and not of opinion, what was the custom. * * * On cross-examination, it would of course be proper to inquire of the witness concerning particular instances wherein certain methods of scaling had been used. The method of proving custom is analagous to that of proving reputation.

* * * Custom or usage is a matter of fact and not of opinion. See Lawson, Usages and Customs, Sec. 55. Any witness, though not an expert in the particular business, is competent to testify to usage if he knows the usage. Abbott's Proof of Facts, 999.' (Emphasis supplied.)

McCormick in his Handbook on Evidence, (1954) 343, states the following:

'Proof of the existence of the person's habit or custom of the business may be made by testimony of a witness to his conclusion that there was such a habit or practice. It also may be made by evidence of specific instances, though these latter would be subject to the judge's discretion to require that the instances be not too few or too many, and that the time be near and the circumstances by sufficiently similar.'

See, also, 25 C.J.S. Customs and Usages Sec. 33, p. 128, where it is stated:

'While a general custom or usage cannot be shown by evidence of particular transactions, unless sufficiently numerous to indicate a regular course of business, or by evidence of the practice of a single individual, it is permissible to show specific instances in which a usage has not been recognized in order to show its nonexistence, or to contradict evidence of its existence.'

A review of the decisions of this court show that both methods have been used to prove 'general use' under the Workmen's Compensation Act. Cf. Jones v. International Minerals & Chemical Corporation, 53 N.M. 127, 202 P.2d 1080, where specific uses by individual potash companies were set forth in evidence; and, Apodaca v. Allison & Haney, 57 N.M. 315, 258 P.2d 711, where the general practice of contractors was put in evidence.

We hold that witnesses qualified to do so may testify directly as to general use of safety devices in an industry and are not restricted to giving particular examples thereof.

Appellants further contend that testimony should have been confined to practices of employers in industries in which the Zia Company was engaged. Appellants' argument that because Zia Company was engaged in city management and maintenance at Los Alamos that evidence of general use should have been confined to practices of companies in city management and maintenance is not well founded. Zia Company was also engaged in road construction and maintenance and in the business of supplying electric power to the City of Los Alamos. Cities usually contract these businesses to others. The company also used several large cranes in connection with its various enterprises.

The word 'industry' has been variously defined. In People ex rel. Fullam v. Kelly, 255 N.Y. 396, 175 N.E. 108, it was said:

"Trade,' as here used, has the meaning of mechanical employment or commercial or business enterprises, while 'industries' is that branch of trade employing capital and labor. ...