Garrett v. Howden

• Decision Date: 23 December 1963
• Docket Number: No. 7281,7281
• Citation: 73 N.M. 307,1963 NMSC 222,387 P.2d 874
• Parties: Otelia GARRETT and T. L. Wilson, Administrator of the Estate of Juanita Pittman, Deceased, Plaintiffs-Appellants, v. Frederick B. HOWDEN, Administrator of the Estate of Willie Charles, Deceased, Defendant-Appellee.
• Court: New Mexico Supreme Court

Page 874

387 P.2d 874

73 N.M. 307

Otelia GARRETT and T. L. Wilson, Administrator of the Estate of Juanita Pittman, DeceasedPlaintiffs-Appellants, v.Frederick B. HOWDEN, Administrator of the Estate of Willie Charles, Deceased, Defendant-Appellee.

No. 7281.

Supreme Court of New Mexico.

Dec. 23, 1963.

Smith, Kiker & Ransom, Albuquerque, for appellants.

Iden & Johnson, Richard G. Cooper, Albuquerque, for appellee.

CARMODY, Justice.

This is an appeal from a directed verdict in favor of the defendant(appellee here) in an action under the guest statute, Sec. 64-24-1,N.M.S.A.1953.

Two questions are presented, (1) whether the court erred in rejecting testimony of a statement claimed to have been made by an unidentified bystander at the scene of the collision as to the speed of the death car prior to and some distance away from the accident; and (2) whether there were sufficient facts proven showing heedless or reckless disregard of the rights of others so as to warrant the submission of the case to the jury.

Willie Charles, the defendant administrator's decedent, was driving to Oklahoma in order to return his wife and son to California.Charles left San Francisco at about noon on a Friday and was accompanied by his sister, Otelia Garrett, one of the plaintiffs.They were to proceed to Bakersfield, California, to pick up another sister, the deceased Juanita Pittman.Between San Francisco and Bakersfield, Charles bought half a pint of whiskey and had two or three drinks over the protests, with respect to drinking and driving, by his sister.She was told to mind her own business.About halfway to Bakersfield, Mrs. Garrett noticed that the bottle was a little more than half gone, but she didn't see Charles drink any more of it.He, however, was driving, according to Mrs. Garrett, 'pretty fast,' but was stopped by a highway patrolman and thereafter proceeded on to Bakersfield at a normal speed.They stopped and picked up Mrs. Pittman in Bakersfield, and then during the night proceeded to drive to Flagstaff, Arizona.Sometime that night, Charles stopped the car and slept for about an hour, but this was the only sleep he had during the unfortunate trip.When either of his sisters told him to take a nap, he told them to mind their own business.In Flagstaff, Charles bought a pint of Scotch, and both sisters protested about his drinking and driving.They were again told to mind their own business.Thereafter, although the sisters repeated their protests, Charles had three or four drinks out of the pint.Neither of the sisters had anything to drink on the trip.As they proceeded east from Flagstaff, where they had had breakfast, the speedometer reading was about 80 miles an hour.Both of the sisters protested about the speed all the way, but Charles slowed down only for traffic and at one point when he was stopped by an officer handing out pamphlets warning drivers to slow down.Within a very few minutes prior to the accident, Mrs. Garrett noticed the speedometer as reading 80 miles an hour, and she told her brother that he should slow down or he wouldn't get to Oklahoma alive.His response was that she should mind her own business, that he knew how to drive.The next thing that Mrs. Garrett remembered was her sister saying, 'I told you so,' Mrs. Garrett raised up, being in the back seat, and saw the car strike the rear of another automobile.

The accident happened where a 4-lane strip of Highway 66 was being newly constructed some 40 miles west of Albuquerque, New Mexico.Traffic was allowed on a portion of the new highway and then diverted sharply to a detour over which both east- and west-bound traffic proceeded in their respective single lanes.About a quarter of a mile west of the detour was a sign warning the traffic of road construction within 500 feet and of a speed limit of 25 miles per hour.Fifteen hundred feet from the detour was a warning sign.Another sign was within 500 feet of the detour and bore a speed limit of 25 miles an hour.Just before the detour was a barricade with a large 'slow' sign warning of the detour, and a large detour sign on the barricade pointing to the right.There was a string of about ten cars approaching the detour from the west at about 30 miles per hour.The weather was clear and dry, and it was about 1:30 on Saturday afternoon.The last car in line had slowed to about 10 or 20 miles an hour, when it was struck from the rear without warning and with great force by the Charles automobile, thereby knocking it in a forward direction.Fortunately, the driver was able to in some manner control his car and bring it to a stop about 500 feet ahead; however, the impact buckled the frame, tore the front seat off its track, and did other damage.In the meantime, apparently as a result of striking the aforementioned car in the rear, Charles lost control of his car and collided broadside with a tractor trailer which was proceeding in a westerly direction on the detour.The Charles car skidded 205 feet from the point where it struck the other automobile to the point of its impact with the truck and tractor.Charles and his sisterJuanita Pittman were instantly killed, and Mrs. Garrett suffered severe injuries.

An expert witness calculated the speed of the Charles car on the basis of the 205 feet of skid marks, and determined that the minimum speed of the vehicle was 65 miles per hour, had it come to a stop without any impact.This particular testimony is in some ways attacked by the appellee, but no cross-appeal having been taken, we are bound by the ruling of the trial court, which, in effect, left the weight of this testimony to the jury.

One other item of testimony which was admitted was the res gestae statement made by the plaintiff, Mrs. Garrett, within two minutes following the accident.It was testified that Mrs. Garrett kept repeating, 'Lord, she had been trying to get him to slow down all morning.He had been driving too fast.'

We will discuss the points relied upon in the order presented.

One of the construction workers, who was near the scene of the accident, was called as a witness, and plaintiffs sought to elicit from his certain statements made by an unidentified lady who arrived at the scene of the accident within two minutes of the collision.The attempt was rejected by the trial court, and thereafter, outside the presence of the jury, the plaintiffs offered to prove that the unidentified motorist, having been told that two people had been killed in the accident, said:

'A.'It's a wonder he hadn't of killed more than that one and himself, for he passed me several times from here to Gallup.He passed me right back up the road,'--she was doing the speed limit which was 70'[sic]he passed her and she bet he was doing better than 100.That's all that she said.'

The actual location where the deceased Charles had passed this unknown lady was not specifically identified, although in might be construed from the testimony that it had occurred within a mile and a half of the scene of the accident.

Plaintiffs urged at the trial and again here that such a statement was part of the res gestae and therefore should be accepted in this instance on the basis that it was the spontaneous utterance of a bystander on seeing a horrible, gruesome sight.Plaintiffs also assert that the statement should be admitted on the grounds that it amounted to corroboration of the testimony of Mrs. Garrett and the expert witness as to the speed of the death car immediately before the impact; and plaintiffs also argue that the admission of this bystander's statement would help forge a chain of actions showing that the deceased Charles was driving in a heedless, reckless or wanton manner at the time of the collision, thereby showing his state of mind.

The question was presented to the trial court and the court initially ruled that the testimony was hearsay; and subsequently that in addition to being hearsay, it had nothing to do with the res gestae and that it would be unfair to allow it.

This is a matter of first impression in New Mexico, although the admissibility of spontaneous utterances was considered in State v. Godwin, 1947, 51 N.M. 65, 178 P.2d 584, and in Lance v. New Mexico Military Institute, 1962, 70 N.M. 158, 371 P.2d 995.However, neither of these cases is of any particular aid to us in the present case.It is to be observed that there is some conflict among the authorities as to the admissibility of testimony with respect to the manner in which a motor vehicle had been operated prior to reaching the scene of an accident.There is an extensive annotation on this subject at 46 A.L.R.2d 9, but, unfortunately, the cases therein annotated, in almost every instance, relate to testimony of a witness, not statements attributed to an unknown or unnamed bystander.More in point are the extensive annotations appearing in 163 A.L.R. 15, particularly V., d, at 193, and53 A.L.R.2d 1245.

As is so often true in a field of law in which there are hundreds of cases, the decisions of the courts do not seem to be entirely in accord.In most instances, the admissibility or nonadmissibility of bystanders' statements is peculiarly linked to the facts of the individual case.Therefore, we do not feel that the citing of many authorities would be particularly beneficial, and it is to be observed that both of the parties to this appeal have been able to cite cases which seem to generally support their contentions.However, one matter does seem to be rather clear, and that is that the determination of the admissibility of the testimony is a matter within the sound discretion of the trial court, and that that court's determination, in the absence of a clear abuse of discretion, will not be disturbed on appeal.Kelley v. Dickerson, 1938, 213 Ind. 624, 13 N.E.2d 535;Musgrave v. Karis, 1945, 63 Ariz. 417, 163 P.2d 278;Cummings v. Illinois Cent. R. Co., 1954, 364 Mo. 868, 269 S.W.2d 111, 47 A.L.R.2d 513....