Hall v. Stiles

• Decision Date: 10 June 1953
• Docket Number: No. 5541,5541
• Citation: 258 P.2d 386,1953 NMSC 41,57 N.M. 281
• Parties: HALL v. STILES et al.
• Court: New Mexico Supreme Court

Page 386

258 P.2d 386

57 N.M. 281

HALL v.STILES et al.

No. 5541.

Supreme Court of New Mexico.

June 10, 1953.

Neal & Girand, Hobbs, for appellants.

Carpenter & Eaton, Roswell, for appellees.

COMPTON, Justice.

Appellee instituted this action under the wrongful death statute.Section 24-101, 1941 Comp.A companion case is Trefzer v. Stiles, 56 N.M. 296, 243 P.2d 605.

On the night of November 11, 1949, an east bound truck pulling a trailer loaded with cattle, due to mechanical conditions, became disabled on the highway in the lane of the east bound traffic, some twenty-eight miles west of Roswell.The truck and trailer belonged to appellants and the truck was being driven by their employee and agent, Henry M. Craig.The driver, being unable to move the truck and trailer, left them setting on the paved portion of the highway with clearance lights burning but without putting out flares, fuses, flags or other warnings.In fact the truck was not equipped with any such devices.Instead of remaining with the disabled vehicle and giving such warning as he could to the drivers of vehicles who might later use the highway during the night, the driver caught a ride into Riverside, some four miles to the west, where he telephoned to his employers and advised them of the trouble.He caught a return ride to the truck to see about the condition of the cattle in the trailer, after which he returned to Riverside where he remained until he learned of the accident resulting in the death of the intestate.The deceased was driving and as his car approached from the west, he met another truck coming from the east a short distance from the point where appellant's truck was parked.It was night time and both vehicles dimmed their lights to pass and immediately after passing, the car driven by the deceased crashed into the rear end of the trailer attached to the parked truck.The driver was instantly killed in the collision.

The cause was tried to a jury which returned a verdict for appellee in amount of $50,000.Judgment was rendered accordingly and appellants appeal.

In the presence of the jury appellee called Henry Craig, appellants' driver, as an adverse witness.It is contended that the court erred in permitting appellee to call him as an adverse witness since he was not a party to the suit nor had he shown himself to be an unwilling or hostile witness.In this regard the record discloses the following:

'Mr. Carpenter:--We make the announcement we are calling Mr. Craig as an adverse witness.

'Mr. Watts:--Counsel cannot call this witness as an adverse witness, he is not a party to the suit, he is not even employed by the defendant, and has no interest in the outcome of this case one way or the other, and cannot be called as an adverse witness under those circumstances.'

At this point the following took place in the absence of the jury:

'Mr. Carpenter:--If the Court please the plaintiff desires to call Henry Craig as an adverse or hostile witness in this case and with the privilege attendant upon his such witness.He was the driver of the truck involved in the accident and is brought here by the defendant as a witness in his behalf, I presume, and for that reason I think we are entitled to use him as an adverse witness.

'Mr. Watts:--This witness was charged with the crime of Manslaughter and was tried and found not guilty by a jury in Lincoln County.At the time of the accident in question he was employed by the defendants, he has not been in their employ since that time.He is not a party to this suit, he has no interest pecuniary or otherwise in the outcome of this suit.He is here having been called here by the defendants.If we should put him on the witness stand counsel for Plaintiff would have the right to cross-examine him, of course.I do not know whether or not I will call him as a witness or not, it depends on what the plaintiff's proof at the end of their case as to whether or not I put him on.

'There is certainly nothing to indicate a hostile attitude by the witness toward the plaintiff nor an adverse attitude toward the plaintiff in that he has nothing to gain or lose regardless of any judgment against the defendants or either of them in that he is not a party to the action, being one of the drivers of the defendant's at the time of the accident.

'The Court:--Has the Statute of Limitations run against the possibility of a civil suit against him?

'Mr. Carpenter:--No sir.

'The Court:--I will hold the witness may be examined as a hostile witness.

'Mr. Carpenter:--I want to state further that in the complaint he is charged as the agent operating in the course of his employment which fact is admitted by the pleadings, therefor I think we are entitled to use him.

'The Court:--I think the circumstances are such the Court is justified in holding he may be cross-examined as a hostile or adverse witness.'

Section 20-113, 1941 Comp.andRule 43(b) Rules of Civil Procedure, afford the only means of calling on opposite or adverse party; but this error, if error it be, does not constitute grounds for reversal.The witness was not interrogated as an adverse witness nor was there any occasion to do so.Our attention has not been directed to any testimony of the witness which resulted from leading questions, nor were any asked.The mere declaration that a person is being called as an adverse witness, absent a showing of prejudice, does not constitute reversible error, and no prejudice is shown.For a discussion of Federal rule 43(b),28 U.S.C.A., U. S. v. Uarte, 9 Cir., 175 F.2d 110;Uarte v. U. S., D.C., 7 F.R.D. 705.

The deceased was first married to Betty Hall, to which marriage there was born one child.They were divorced January 9, 1948 and thereafter, on August 21, 1948, he married Zelpha Louise Hall, and to this marriage there was born one child, Robin Lyn Hall.Subsequently, on September 1, 1948, he and his former wife, Betty T. Hall, went through a marriage ceremony.She was riding with him at the time and was also killed in the accident.As might be expected a controversy arose as to the persons entitled to the judgment in the event of recovery, and Zelpha Louise Hall, for herself and minor daughter, upon petition, was permitted to intervene as partiesplaintiffs.She alleged in her petition that the administator, R. J. Hall, did not recognize her rights nor the rights of her minor child.It is now claimed that the court erred in permitting the widow and minor child to intervene.We have repeatedly held that actions under the statute may be brought by the personal representative of the deceased person only.Romero v. Atchison T. & S. F. Railway Co., 11 N.M. 679, 72 P. 37;Henkel v. Hood, 49 N.M. 45, 156 P.2d 790;Mallory v. Pioneer Southwestern Stages, 10 Cir., 54 F.2d 559.Nevertheless, at a pretrial conference held long prior to the hearing, when all parties were present, the purpose of which, among other things, was to determine the persons entitled to share in any judgment which might be obtained, counsel then...