Perkins v. City of Roswell

• Decision Date: 04 February 1911
• Citation: 113 P. 609,16 N.M. 185,1911 -NMSC- 022
• Parties: PERKINS v. CITY OF ROSWELL.
• Court: New Mexico Supreme Court

113 P. 609

16 N.M. 185, 1911 -NMSC- 022

PERKINS v. CITY OF ROSWELL.

Supreme Court of New Mexico

February 4, 1911

Syllabus by the Court.

In the trial of a cause with a jury for the alleged violation of a city ordinance which made it unlawful for any "person firm or corporation to erect, keep, maintain or operate any private hospital, sanatorium, or health resort institution" within the limits of the city, evidence was introduced by the plaintiff against objection to the effect that it was "common knowledge in the neighborhood" that the defendant was running the place in question. Held, that the evidence was inadmissible and necessarily prejudicial to the defendant.

Appeal from District Court, Chaves County; before Justice Merritt C Mechem.

Mrs Mary Bell Perkins was convicted of violating an ordinance of the city of Roswell, and she appeals. Reversed and remanded.

U. S. Bateman, for appellant.

H. M. Dow and K. K. Scott, for appellee.

ABBOTT J. (after stating the facts as above).

Of the various errors which the appellant assigns, a considerable proportion must be disregarded as not properly before us, and others need not be separately treated of, since they present questions of common occurrence on which the law is too well settled to require discussion, especially in view of the conclusion we have reached that there was error prejudicial to the defendant in the admission of certain evidence by the trial court, namely, the attorney for the plaintiff put to a witness for the plaintiff the question: "State whether it is common knowledge that Mrs. Perkins runs a sanatorium." To which the witness answered: "It is." The question was then put: "If you have stated that it is common knowledge as to who runs that sanatorium, please state who does run it." To which the witness answered: "Mrs. Perkins runs it." To each of these questions the attorney for the defendant objected, in substance, on the ground that it was calling on the witness to give her opinion, and hearsay evidence, and he duly took exception to the action of the court in overruling the objections.

That proof of facts by evidence of reputation is admissible only on matters of public and general interest is declared in 1 Greenleaf on Evidence, § 137; Wigmore on Evidence, § 1586; Jones on Evidence (2d Ed.) §§ 301, 302. The cases cited in note 26 to section 302 are especially informing "Ownership or possession of property or a modus concerning it cannot be shown by reputation." 16 Cyc. 1212. "Title...