Robinson v. Navajo Freight Lines, Inc.

• Decision Date: 27 March 1962
• Docket Number: No. 6854,6854
• Citation: 372 P.2d 801,70 N.M. 215,1962 NMSC 43
• Parties: Harold ROBINSON, Plaintiff-Appellant, v. NAVAJO FREIGHT LINES, INC., a corporation, Defendant-Appellee.
• Court: New Mexico Supreme Court

Page 801

372 P.2d 801

70 N.M. 215

Harold ROBINSON, Plaintiff-Appellant, v. NAVAJO FREIGHT LINES, INC., a corporation,

Defendant-Appellee.

No. 6854.

Supreme Court of New Mexico.

March 27, 1962.

Rehearing Denied July 25, 1962.

Schall & Sceresse, Donald R. Fowler, Albuquerque, for appellant.

McAtee, Toulouse, Marchiondo, Ruud & Gallagher, Albuquerque, for appellee.

CHAVEZ, Justice.

Appellant, Harole Robinson, employed as a truck driver by appellee, Navajo Freight Lines, Inc., a corporation, filed suit in Bernalillo County to set aside an arbitrator's award which upheld appellant's discharge from his employment. The trial court found the issues generally for appellee and entered judgment dismissing appellant's complaint. This appeal is from that judgment.

The record discloses that appellant, a long-line truck driver employed by appellee, was a member of Local 492 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, hereinafter referred to as 'Teamsters,' and was involved in a truck accident which occurred in Tucumcari, New Mexico, on August 7, 1958. Donald V. Thorn, the operations manager of appellee freight lines, was notified of the accident and went to Tucumcari to investigate said accident. Appellant returned to Albuquerque on August 7, 1958, and Thorn returned to Albuquerque on the morning of August 8, 1958. Thorn then advised Robinson that his services as an employee of appellee were then and there terminated.

On the morning of August 9, 1958, John LaNear, the president of Local 492, telephoned Thorn advising him that the Local was aggrieved over the firing of appellant and requested that the dispute be arbitrated pursuant to the established procedure followed by Local 492. Appellee and John LaNear orally agreed that said dispute and grievance would be arbitrated by Henry Weihofen on the afternoon of August 11, 1958, and on said date John LaNear appeared at said hearing, accompanied by appellant, and each party submitted to said arbitrator such facts, evidence and arguments as each party possessed. At no time did appellant or LaNear ask for a postponement or for additional time to bring in further evidence or witnesses.

On August 13, 1958, the arbitrator filed his report and found, among other things, that appellant was discharged for what appellee deemed an accident chargeable to appellant, i. e., driving at excessive speed and that the evidence did not show that appellee was wrong in its judgment that the accident was due to appellant's fault. The arbitrator found that there was insufficient basis for interfering with appellee's judgment of the penalty to be imposed.

Appellant's complaint alleged, and it was admitted by appellee, that there was an oral agreement between appellant's union and appellee to arbitrate disputed matters, and that the agreement includes disputes over the firing of an employee. Appellant offered proof that the arbitration was held at John LaNear's request and that Henry Weihofen, the arbitrator, was not sworn.

The record discloses that on June 23, 1959, appellant filed in the clerk's office a request for admissions, pursuant to Rule 36. Said request called upon appellee to admit, within ten days after service of the request, that the quotation set out in appellant's request was a true and correct quotation from the Western States Area Over-The-Road Master Freight Agreement for the period of May 1, 1958 through June 30, 1961, and that the agreement included the state of New Mexico and is the master contract in existence between appellee and Local 492 of Teamsters. Article VI, 'Disputes Procedure' was attached to said request for admissions.

The record also discloses that on July 20, 1959, there was filed in the clerk's office an answer to request for admissions, unsworn and signed by appellee's attorneys, in which appellee denied that there was a master contract between appellee and Local 492 of Teamsters at the time of the dispute alleged in the complaint. The copy served on appellant was mailed January 16, 1959.

The trial court made the following findings of fact and conclusions of law:

'Findings of Fact

'1. That on the 7th day of August, 1958, plaintiff while employed as a long-line driver for defendant, was involved in an accident near Tucumcari, New Mexico; thereupon on investigation by defendant's representatives and agents, plaintiff was found at fault for the accident and his services for the defendant were terminated, it being one of several accidents involving plaintiff's driving.

'2. That plaintiff, feeling aggrieved, consulted John LaNear on or about August 9, 1958, as president and general business manager of Local No. 492 of the Teamsters, Chauffeurs, Warehousemen and Helpers International Brotherhood.

'3. That in the presence of the plaintiff and acting as plaintiff's representative, the said John LaNear called Don V. Thorn, local manager of the defendant company, and arranged for an arbitration hearing on Monday afternoon, August 11, 1958, to review said discharge.

'4. That under an oral agreement between Local 492 and the defendant company, all disputes were subject to being submitted to arbitration before a single arbitrator by either party, and each party agreed to be bound by the findings of the arbitrator; that employees, with the Local, and the company, prior to the plaintiff's case, had arbitrated a half-dozen or more similar disputes in like manner without objection.

'5. On the afternoon of August 11, 1958, the parties appeared with their witnesses and at a hearing before Mr. Henry Weihofen, Professor of Law at the University of New Mexico, who had been mutually agreed upon by the parties as arbitrator, each of the parties submitted his evidence, and Mr. Weihofen, after hearing said evidence, entered a written opinion, copy of which is attached to plaintiff's complaint, generally in favor of defendant.

'6. That Mr. Weihofen was not put under oath prior to the arbitration proceedings, nor did he take an oath as arbitrator.

'7. That neither party on August 11, 1958, or prior thereto, made any objection to Mr. Weihofen serving as arbitrator, made any objections to his hearing the matter on the afternoon of August 11, 1958, nor did either party request that he be placed under oath.

'8. That plaintiff willingly and without objection participated in the arbitration hearing.

'Conclusions of Law

'1. The common law does not require an arbitrator to be sworn. Sec. 22-3-1 et seq., N.M.S.A., 1953 Comp., refers to a court proceeding and is limited to such proceeding and cannot be construed as governing such a proceeding as is involved in this case.

'2. Plaintiff is now estopped from complaining to this court.

'3. Plaintiff waived any requirement of an oath.'

Appellant's first point upon which he seeks a reversal is that the trial court erred in not enforcing the agreement of May 1, 1958, referred to as the master contract. This is the contract referred to in appellant's request for admissions and is the agreement which appellant contends abrogated the 1955 contract and superseded the oral agreement by which disputes had formerly been governed. Appellant's position is based upon the fact that appellee's answer to request for admissions was unsworn and unitmely filed, citing Sieb's Hatcheries, Inc. v. Lindley, 8 Cir., 13 F.R.D. 113, and that it was an evasion, Aktiengesellschaft Der Harlander, Etc. v. Lawrence Walker Cotton Co. Inc., 60 N.M. 154, 288 P.2d 691. It is clear that, under our Rule 36 and the identical federal rule, either the unexcused late filing of an answer to requests for admissions or the filing of an unsworn answer is equivalent to the filing of no answer according to the terms of the rule itself and to innumerable decisions on the question, always providing, of course, correct procedure was complied with in making these requests for admissions. The procedure set forth in the rules must be strictly followed. United States v. Brandt, (D.C.D.Mont.1948), 8 F.R.D. 163; Timmons v. United States, (4 C.C.A.1952), 194 F.2d 357. Therefore, we need not consider appellant's claim that the answer filed was equivocal or an evasion.

Rule 36, Rules of the District Courts of the State of New Mexico, provides as follows:

'(a) Request For Admission. After commencement of an action a party may serve upon any other party a written request for the admission by the latter of the genuineness of any relevant document described in and exhibited with the request or of the truth of any relevant matters of fact set forth in the request. If a plaintiff desires to submit a request within fifteen days after commencement of the action leave of court, granted with or without notice, must be obtained. Copies of the documents shall be served with the request unless copies have already been furnished. Each of the matters of which an admission is requested shall be deemed admitted unless, within a period designated in the request, not less than ten days after service thereof or within such longer or shorter time as the court may allow on motion and notice, the party to whom the request is directed serves upon the party requesting the admission either (1) a sworn statement denying specifically the matters of which an admission is requested or setting forth in detail the reasons why he cannot truthfully admit or deny those matters, or (2) written objections on the ground that some or all of the requested admissions are privileged or irrelevant or that the request is otherwise improper with a notice of hearing the objections at the earliest practicable time. If written objections to a part of the request arb made the remainder of the request shall be answered within the period designated in the request. A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party deny only a part of a qualification of a matter of which an admission is requested, he shall specify so much of it...