Crabtree v. Measday
| Decision Date | 26 January 1973 |
| Docket Number | No. 990,990 |
| Citation | 508 P.2d 1317,1973 NMCA 17,85 N.M. 20 |
| Parties | Lacy CRABTREE, Plaintiff-Appellant, v. Lavon Mary MEASDAY, Defendant-Appellee. |
| Court | Court of Appeals of New Mexico |
Plaintiff's claim for personal injuries, suffered in an automobile accident, received an adverse verdict of the jury. Plaintiff appeals from the judgment entered for defendant.
We reverse. Three points are raised on appeal, (1) whether plaintiff's accident report introduced in evidence by stipulation estopped plaintiff from explaining or denying the correctness of the document; (2) whether defendant can introduce in evidence her own answers to interrogatories propounded by plaintiff; and (3) whether a deposition, not read or signed by the witness, is admissible in evidence where the parties have not waived the examination, reading and signing of the deposition by the witness.
1) Plaintiff's Accident Report Introduced in Evidence by Stipulation did not Estop Plaintiff from Explaining or Denying the Correctness of the Document.
On September 15, 1971, the parties stipulated that the 'statement of the plaintiff, . . . designated as 'Claimant's Report of Accident' dated May 7, 1969 may, at the election of either party be introduced into evidence.' (Emphasis added)
On December 7, 1971, more than a month before trial, the trial court entered an order, including within it, the binding effect of the stipulation. It reads in part:
IT IS FURTHER ORDERED that the plaintiff is estopped from denying the effect of the Stipulation and is therefore bound thereby with respect to claimant's report of accident dated May 7, 1969 and is estopped from claiming that language was added to said report after plaintiff signed and initialed it, and to which action and ruling of the court the plaintiff excepts.
On January 17, 1972, the day before trial, a pre-trial order was signed by court and counsel pursuant to § 21--1--1(16), N.M.S.A. 1953 (Repl. Vol. 4). One of the contested issues of law stated was:
1. The binding effect of plaintiff's stipulation to allow the introduction of an ex parte statement, entitled 'CLAIMANT'S REPORT OF ACCIDENT'.
Under Proposed Exhibits and Objections, it is stated:
2. Ex parte statement of plaintiff, entitled, 'CLAIMANT'S REPORT OF ACCIDENT'. (Plaintiff insists upon his right to explain the same in detail.) (Requests permission to tender testimony for the record.)
These issues were preserved for review, Mantz v. Follingstad, 505 P.2d 68 (Ct.App.) decided November 22, 1972, and they were properly challenged.
The above stipulation must be given a fair and reasonable construction in order to effect the intent of the parties. To seek the intention of the parties, the language should not be so construed as to give it the effect of an admission of a fact obviously intended to be controverted. Neither should it be so construed as to constitute a waiver of a right not plainly intended to be relinquished. Alldredge v. Alldredge, 20 N.M. 472, 151 P. 311 (1915); In re Quantius' Will, 58 N.M. 807, 277 P.2d 306 (1954); Griego v. Hogan, 71 N.M. 280, 377 P.2d 953 (1963); Southern Union Gas Co. v. Cantrell, 57 N.M. 612, 261 P.2d 645 (1953). Compare, Caranta v. Pioneer Home Improvements, Inc., 81 N.M. 393, 467 P.2d 719 (1970).
In Atchison, Topeka and Santa Fe Railway Company v. Rodgers, 16 N.M. 120, 113 P. 805 (1911), a stipulation was entered into by the parties ". . . that the paper hereto attached is an exact copy of the instrument in writing, . . . and that the said contract, Exhibit A, may be used in evidence in this case the same as if the representatives of the defendant, . . ., were here present and testified to the fact of the signing of said instrument in writing by said parties."
The court said:
The circumstances surrounding the execution of this stipulation, and, indeed, its very terms, show that it was intended to stipulate only to the genuineness of the instrument and its use by plaintiff for transportation, thus relieving defendant from the necessity of bringing to the trial the two witnesses named in it. It would be a strange and utterly unreasonable construction of this agreement to hold that the plaintiff assented thereby to the validity of the contract as limiting his recovery and thus practically stipulating away his whole case. While stipulations fairly made between counsel ought to be enforced, they are not to be given effect beyond their terms.
We believe the same legal principle applies to the instant case.
The defendant introduced the stipulation and accident report in evidence. The stipulation did not state the attendant facts and circumstances surrounding the execution and initialing of the report.
On November 8, 1971, a month before the order was entered, plaintiff filed an affidavit in response to defendant's motion for summary judgment in which he explained the attendant circumstances. He attached an executed copy of the accident report with a portion 'blanked out.' The portion 'blanked out' was the claimed version of the facts of the accident written in by the person procuring the report. Plaintiff insisted on his right to explain this portion of the accident report with testimony in support thereof.
Plaintiff had this right to explain to the jury his recollection of the facts and circumstances surrounding the execution and initialing of the accident report. The validity or correctness of the report would then become an issue for the jury to determine.
The sole fact stipulated was that either party, if he desired, could introduce plaintiff's accident report in evidence without objection. There was no provision that the accident report, if introduced in evidence, was a true, correct and voluntary admission of all the facts set forth therein. There was no language that the accident report could be introduced in evidence with such limitations and restrictions that plaintiff could not correct or explain its contents. We find nothing to indicate that plaintiff intended to waive his rights or that he was guilty of conduct, oral or written, which would give rise to estoppel. Certainly, plaintiff did not so stipulate.
The trial court erred in its order in which it estopped plaintiff from the right of explanation of the accident report or its correctness.
(2) Defendant Cannot Introduce in Evidence her Answers to Interrogatories Propounded by Plaintiff if Defendant was Unable to Attend and Testify Because of Illness Under the Circumstances of this case.
On August 16, 1971, defendant filed her answers to interrogatories propounded by plaintiff.
On January 17, 1972, the day before trial, the pre-trial order was executed by court and counsel. Under the subject of 'IDENTIFICATION OF WITNESSES,' plaintiff stated:
Mrs. Lavon Mary Measday, Deming, New Mexico, (Adverse witness, under rule 43(b), in person and/or by interrogatories).
Defendant stated:
Mrs. Lavon Measday, Deming, New Mexico.
No statement was made under 'IDENTIFICATION OF WITNESSES' or 'UNUSUAL QUESTIONS OF EVIDENCE,' that defendant was ill and would seek to use her answers to interrogatories as her only evidence to establish her defense.
On the morning of trial, plaintiff was advised that defendant was ill and would not appear to testify, but defendant did not request a continuance. Defendant's physician submitted a latter to the trial court that defendant was under his 'care for treatment of a long-standing disease condition which has some psychological and emotional aspects,' (Emphasis added) and that she should not appear in court, but if she does, she should not be expected to testify.
Defendant's attorney offered in evidence defendant's answers to interrogatories propounded by plaintiff. Plaintiff objected because it was not mentioned, presumably in the pre-trial order, and interrogatories cannot be self-serving declarations. The objection was overruled. Rule 33 of the Rules of Civil Procedure (§ 21--1--1(33), N.M.S.A.1953 (Repl. Vol. 4)) provides in part that 'the answers may be used to the same extent as provided in Rule 26(d) for the use of the deposition of a party.'
Rule 26(d) (§ 21--1--1(26)(d), N.M.S.A. 1953 (Repl. Vol. 4)) provides in part:
At the trial . . ., any part or all of a deposition, so far as admissible under the rules of evidence, may be used against any party who was present or represented at the taking of the deposition . . ., in accordance with any one of the following provisions:
(3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: . . . 3, that the witness is unable to attend or testify because of . . . sickness, infirmity, . . .; 5, upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used. (Emphasis added)
The trial court heard no testimony and made no findings.
This is a matter of first impression in New Mexico. Effective July 1, 1970, Rules 26 and 33 of the Federal Rules of Civil Procedure were amended, but no substantive change occurred in the rules applicable to the question under consideration. The New Mexico Rules have not been amended. The issue yet remains whether under 'rules of evidence,' the person interrogated may use his answers to interrogatories to establish his defense--to have his day in court.
It is generally held in federal and state courts that answers to interrogatories are inadmissible if offered on behalf of the party making answers, who does not attend or testify, because answers are self-serving declarations not subject to cross-examination. Callaway v. Perdue, 238 Ark. 652...
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