Morrison v. Rodey, 6492
| Decision Date | 27 May 1959 |
| Docket Number | No. 6492,6492 |
| Citation | 65 N.M. 474,1959 NMSC 45,340 P.2d 409 |
| Court | New Mexico Supreme Court |
| Parties | Thomas A. MORRISON, Frank Earl Morrison, and Whitfield Tank Lines, Inc., a corporation, Plaintiffs-Appellees, v. Ray H. RODEY, Administrator C.T.A. of the Estate of Roy Ezra Deaver, Deceased; and Pacific Greyhound Lines, a California corporation, Defendants-Appellants. Transport Indemnity Company, Intervener-Appellee, Underwriters at Lloyds and Art Tarro, doing business as Art Tarro & Son Oil Company, Interveners-Appellees. |
Iden & Johnson and W. F. Kitts, Rodey, Dickason, Sloan, Akin & Robb, Albuquerque, for appellants.
Moise, Sutin & Jones, J. L. Leftow, Albuquerque, for appellees, Whitfield Tank Lines, Inc. and Transport Indemnity Co.
Richard C. Civerolo and Gino J. Matteucci, Albuquerque, for appellees Frank Earl Morrison and Thomas A. Morrison.
McAtee, Toulouse & Marchiondo, Albuquerque, for appellee Art Tarro.
On January 22, 1957, in the State of Arizona but near the Arizona-New Mexico line, a vehicle collision occurred on U. S. Highway 66 involving a diesel tank truck and pup trailer hauling fuel oil, and a Greyhound bus. The accident occurred at approximately 6:50 a. m., and as a result thereof the driver of the truck and the alternate driver riding with him were injured and the driver of the Greyhound bus was killed. The plaintiffs in the court below were the two truck drivers and the corporation by whom they were employed, who brought suit against the administrator of the estate of the deceased driver and the defendant Greyhound Corporation. The other parties to the case were by intervention, one of whose claims arose by reason of payment of workmen's compensation to the plaintiff truck drivers and the others by reason of ownership of the tank equipment and the insurance carrier thereon. However, the claims of the interveners, for all practical purposes, are coincident with the claims of the named individual plaintiffs.
The parties to the action will be referred to as they appeared in the court below, the plaintiff individuals having recovered substantial damages for personal injuries and two of the interveners having recovered for damages to the oil truck equipment. It is from the jury's verdict and judgment issued thereon that the defendants appeal, the judgments running against both the estate of the defendant driver and the Greyhound Corporation.
The case was tried on the plaintiffs' complaint for the personal injuries and equipment damages and upon the defendants' cross-complaint against the plaintiffs for the death of the driver and the equipment damages to the Greyhound Corporation's bus. The jury, by its verdict, resolved the issues in favor of the plaintiffs and against the cross-complainants. The sufficiency of the evidence to support the verdict is not challenged, but the defendants raise numerous points of claimed error, either occurring in the trial or subsequent thereto.
The accident occurred on a two-lane highway, with the oil transport traveling in a westerly direction and the bus in an easterly direction. There was snow and ice on the highway to the extent that the center-line was not visible, and the point of collision occurred three to four feet to the north of the center-line or in the lane of traffic occupied by the tank truck. It was not, strictly speaking, a head-on collision, inasmuch as apparently the front of the bus struck the tank truck at a point near the driver's door. Although it was breaking day, both vehicles had their headlights and riding lights on, and were apparently traveling at about forty-five to fifty miles per hour. The highway was very slippery and the bus until at a point near the place of collision had been traveling with the right-hand wheels on the gravel shoulder. However, just before the collision, the driver apparently turned his vehicle to get back onto the paved portion of the roadway, because the shoulder narrowed and the ground dropped off quite abruptly, leaving very little of the shoulder available for any traffic. Most of the passengers of the bus were asleep. However, five of them were witnesses at the trial either in person or by deposition but their testimony is rather fragmentary either because of their location as seated in the bus or by reason of the fact that they were sleepy or not paying any considerable amount of attention to the manner of travel.
The bus driver died within hours after the accident, the alternate tank driver was asleep, and as a result at the trial the only witness purporting to know all of the facts was the driver of the tanker. There was considerable conflict as to the exact cause of the accident, and at least the defendants have contended that the pup trailer was perhaps out of line and skidding sideways to some extent. However, it is not necessary to go into the various claimed details for the purpose of this opinion, the evidence being construed in the light most favorable to the plaintiffs by reason of the verdict of the jury.
During the course of the trial, certain evidence of the passengers on the bus was received through their depositions. The deposition of one of these witnesses, Kenneth Moore, both direct and cross examination, was read to the jury as a part of the defendants' case. However, for some reason which does not appear in the record, the redirect and re-cross examination was not read to the jury or offered in evidence. Thereafter, another one of the passengers who was actually present at the trial was called as a witness for the plaintiffs in rebuttal, and as a part of his testimony the following occurred:
'Q. Now, getting back to this Kenneth Leroy Moore, as I understand it you rode with him out of Gallup on the night of January the 22nd and went from there to Oklahoma City in his company. A. Yes, sir.
'Q. I will ask you to state whether or not he made any statements to you as to whether or not he was asleep or awake or had seen or knew anything about how the accident happened.
'Mr. Akin: Just a moment. I am going to object to this line of questioning in that no proper foundation has been laid for it. The witness, Moore, was not asked in his deposition if he had ever made any statements about whether he was asleep or not to this particular witness.
'Mr. Moise: May it please the Court, I have to take exception to Mr. Akin's statement. It appears in Mr. Moore's deposition in the re-cross; the redirect and the re-cross were not offered here at the time that Mr. Moore's deposition was read, but the fact of the matter is that it does appear therein. (Counsel showed a deposition to the court.) (Counsel conferred with the Court out of hearing of the Jury.)
'Q. Will you read the question to the witness, Miss Reporter?
'Reporter: Question: 'I will ask you to state whether or not he made any statements to you as to whether or not he was asleep or awake, or had seen or knew anything about how the accident happened.' A. Yes, he made a statement that he was asleep at the time of the accident.
'Mr. Moise: That's all.'
The defendants maintain with considerable force that it was prejudicial error for the court to allow this testimony to be given without sufficient foundation. There was at least an attempt to lay a foundation in the portion of Moore's deposition under the title of re-cross examination. This portion was never read to the jury. Whether it was this portion which the court examined at the time of the above quoted exchange, we do not know. However, after the trial was completed, the plaintiffs moved the court to include as a part of the transcript the balance of the deposition of the witness Moore, and the trial court directed that the same be included, although specifying that it was not ruling upon the question of whether or not it was ever offered or received in evidence.
This particular point of claimed error raises several questions which are self-evident but we believe that they need not be answered because of the failure of counsel for defendants to properly object or to satisfactorily alert the mind of the trial court to the error which was about to be committed.
It should be borne in mind that the above exchange occurred at some time on the fourth day of the trial of this extended litigation after more than twenty witnesses had testified. It would appear to us that when counsel for the defendants objected that no foundation had been asked in the deposition, counsel for the plaintiffs pointed out to the court where in the deposition at least some foundation had been laid, and thereafter the examination proceeded without the court having been specifically called upon to make a ruling. If counsel for the defendants had wished to truly alert the mind of the court, it would have been a very easy matter to state for the record after the exchange at the bench what the definite objection was. As the matter stands, we do not feel that a proper objection was made, and therefore this claimed error will not be sustained, and more particularly so when we consider that the rule is for the benefit of the witness and not the parties. State v. Carabajal, 1920, 26 N.M. 384, 193 P. 406, 17 A.L.R. 1098.
In connection with the above issue raised by the defendants, it is asserted that the trial court further erred in refusing to allow the defendants to rehabilitate the witness Moore, if he was impeached, through the testimony of an Arizona state policeman to whom the witness Moore gave a statement on the morning of the accident. In this connection, the following occurred:
...
To continue reading
Request your trial
-
Horrocks v. Rounds
... ... Minor v. Homestake-Sapin Partners Mine, 69 N.M. 72, 364 P.2d 134; and Morrison v. Rodey, 65 N.M. 474, 340 P.2d 409. Neither side apparently realized, nor did they argue, that ... ...
-
Payne v. Tuozzoli
... ... Co. v. Ponca Whole. Mercan. Co., 68 N.M. 228, 360 P.2d 643 (1961); Morrison v. Rodey, 65 N.M. 474, 340 P.2d 409 (1959); Hartford Fire Insurance Company v. Horne, 65 N.M. 440, ... ...
-
Michael v. West
... ... Supreme Court of New Mexico ... March 28, 1966 ... [76 NM 119] Rodey, Dickason, Sloan, Akin & Robb, Duane C. Gilkey, Albuquerque, for appellant ... See Morrison v. Rodey, 65 N.M. 474, 340 P.2d 409; and Stoll v. Galles Motor Company, 60 N.M. 186, 289 P.2d 626 ... ...
-
Latta v. Harvey
... ... 226, 282 P.2d 708; Sandoval v. Sandoval, 1956, 61 N.M. 38, 294 P.2d 278; and Morrison v. Rodey, 1959, 65 N.M. 474, 340 P.2d 409 ... It should suffice to answer the ... ...