Dull v. Tellez

• Decision Date: 17 September 1971
• Docket Number: No. 647,647
• Citation: 1971 NMCA 133,83 N.M. 126,489 P.2d 406
• Parties: Roger D. DULL et al., Plaintiffs-Appellants, v. Isabelle TELLEZ, Administratrix of the Estate of George Cromie, Deceased, Defendant-Appellee.
• Court: Court of Appeals of New Mexico

Page 406

489 P.2d 406

83 N.M. 126

Roger D. DULL et al., Plaintiffs-Appellants, v. Isabelle TELLEZ, Administratrix of the Estate of George

Cromie, Deceased, Defendant-Appellee.

No. 647.

Court of Appeals of New Mexico.

Sept. 17, 1971.

[83 NM 126] Dennis J. Falk and Allen C. Dewey, Jr., Modrall, Sperling, Roehl, Harris & Sisk, Albuquerque, for plaintiffs-appellants.

Eric D. Lanphere, Iden & Johnson, Albuquerque, for defendant-appellee.

OPINION

HENDLEY, Judge.

Plaintiffs sued for damages arising out of a rear-end automobile collision. The trial court submitted the issue of unavoidable accident because of an unforeseeable sudden illness to the jury. The plaintiffs objected on the ground that there was no evidence of a sudden illness and that by submitting this as the basis for an unavoidable accident instruction the trial court submitted a false issue to the jury. The jury returned a verdict for defendant and plaintiffs appeal asserting there was a lack of evidence to support giving instructions relating to unforseeable sudden illness which constituted an unavoidable accident. It is not claimed that unforeseeable sudden illness is not a defense. See Dull v. Employers Liability Assurance Corp., 233 So.2d 43 (La.App.1970); Corin v. Gately, 338 Mass. 110, 153 N.E.2d 752 (1958); Boyleston v. Baxley, 243 S.C. 281, 133 S.E.2d 796 (1963).

We reverse.

Was there a basis for giving an unavoidable accident instruction based on an unforeseeable sudden illness?

A party is entitled to an instruction on his theory of the case upon which there is evidence. Boyd v. Cleveland, 81 N.M. 732, 472 P.2d 995 (Ct.App.1970). Provided there is such evidence an unavoidable accident instruction is appropriate. Flanary v. Transport Trucking Stop, 78 N.M. 797, 438 P.2d 637 (Ct.App.1968). The proper test for giving an unavoidable accident instruction is whether there is any evidence from which the jury could conclude that the accident occurred without the negligence of any party being the proximate cause. Boyd v. Cleveland, supra.

The record discloses the following. Shortly before 10:45 p.m. plaintiffs were stopped at a light on East Central in Albuquerque behind a Cadillac automobile. Plaintiffs' automobile was rear-ended by a car driven by George Cromie. Plaintiff, Roger, stated he felt there was more than one impact. Immediately after the collision Cromie backed his car off the road to a parking area. Roger's car was damaged in front and back, having been bumped into the Cadillac. Shortly after the accident the police investigated and found no skid marks left by the Cromie car. The police officer testified that Cromie was unstable on his feet and there was an odor of alcohol on his breath. The officer noted in his report that Cromie was a '* * * border-line drunk driver.'

Cromie's wife was a passenger in the Cromie car and testified that on the afternoon before the accident Cromie and his son-in-law had cut some trees at their home, had their evening meal, watched television, and then went to the American Legion Hall about 9:15 p.m. where they consumed two beers while they watched television.

No testimony was offered which would tend to show in any way that Cromie had an indication of an illness prior to the accident. Over plaintiffs' objection, testimony was given relating to Cromie's condition after the accident. The day following the accident Mr. Cromie was brought home by a filling station attendant who discovered Mr. Cromie in a stalled vehicle in the middle of Central Avenue. The attendant testified that upon discovering Mr. Cromie that he could not talk or move--'It was like he was paralyzed.' Mrs. Cromie testified that after he was brought home her husband could not lift his left leg or use his left arm and that she had to help him put on his clothes to go see the doctor. Mrs. Cromie also testified that less than a month after the accident her husband had a 'nervous seizure', and could not control his walk.

After the 'nervous seizure' Cromie was taken to the Veterans' Hospital and examined by Dr. Kaplan, a neurosurgeon. Dr. Kaplan took a history which included the accident some four weeks previously, the weakness in the left leg and arm after the accident, and the absence of any trouble before the impact with plaintiffs' car.

Dr. Kaplan performed numerous tests all of which were interpreted to mean that Cromie had a brain tumor on the right side. An operation was performed but a tumor could not be found. Dr. Kaplan stated it was highly improbable that the conclusions of the tests were in error and did not alter his...