Scott v. Brown
| Decision Date | 11 July 1966 |
| Docket Number | No. 7899,7899 |
| Citation | 76 N.M. 501,416 P.2d 516,1966 NMSC 135 |
| Parties | Rebecca Jean SCOTT, a Minor, by her Guardian, Tom Donaghe, and Tom Donaghe, Individually, Plaintiffs-Appellants, v. Robert L. BROWN, Jimmie Ellers and George A. Wood, Defendants-Appellees. |
| Court | New Mexico Supreme Court |
LaFEL E. OMAN, Judge, Court of Appeals.
The plaintiffs filed suit for damages for personal injuries to the minor plaintiff and for medical and hospital expenses incurred and to be incurred by her grandfather, the other plaintiff, in her care and treatment as a result of the personal injuries she sustained. The minor plaintiff sustained these injuries as a result of a collision between her person and a pick-up truck being driven by defendant Robert L. Brown, on Center Street just east of the city limits of Carlsbad, New Mexico.
The case was tried to a jury, the jury returned a verdict in favor of all the defendants, judgment was entered on the verdict, and the plaintiffs have appealed therefrom.
By their praecipe the plaintiffs called for certain designated portions of the record, and by a separate 'Praecipe for Bill of Exceptions' called for the following:
objections and exceptions to Instruction No. 24 given by the Court.
Their points relied upon for reversal are stated as follows:
rights to a fair and impartial trial.
objections, which in effect directed the Jury to excuse the truck driver's negligence 'for any other reason' and was prejudicial to Plaintiffs' rights to a fair and impartial trial.
The defendants filed a counter-praccipe seeking inclusion in the transcript of all the evidence, including the exhibits, introduced at the trial. Plaintiffs filed a motion resisting the inclusion of the evidence called for by the counter-praecipe upon the grounds that such would constitute 'an unjustified encumbering of the record with burdensome matters that are wholly irrelevant and immaterial to the issues of Plaintiff-appellants' appeal.'
The trial court sustained plaintiffs' motion, and consequently none of the evidence is before this court. As already stated, only designated portions of the record proper are here, and the only record of other proceedings had in the court below, which is before us, is a record of the plaintiffs' exceptions to the court's Instruction No. 24 and a brief record of the proceedings which transpired at the hearing on plaintiffs' motion in opposition to the counter-praecipe.
The defendants, Jimmie Ellers and George A. Wood, have filed a motion to dismiss the appeal for failure of plaintiffs to follow proper appellate practice, and particularly because plaintiffs' argument under their Point II, which is an attack on the court's Instruction No. 24, necessitates a review of the evidence, which is not included in the transcript.
Whatever merit there may be to the motion to dismiss the appeal can properly be considered in passing upon plaintiffs' points relied on for reversal, and in particular in passing on Point II. For this reason, the motion is denied and we pass to the appeal.
Because plaintiffs' Points I and III do not concern themselves with the correctness of the substance of the court's Instruction No. 9 1/2 and the forms of verdicts, but only with the particular manner and form in which they were given to the jury, and because these points relate to all three defendants, whereas Point II relates only to defendants Ellers and Wood, we shall first consider Points I and III.
The court's Instruction No. 9 1/2 is on unavoidable accident. No exception was taken or objection made thereto. It seems the trial court had intended to give the instruction, but on the original copy had erroneously written 'refused' and had signed his name just below the word 'refused.' It does not appear from the record which party or parties may have tendered this instruction as a request. In any event, the court struck the word 'refused' by drawing two lines through the same, and then wrote immediately to the right thereof the word 'given.'
The court, in so marking the requested instruction, was complying with Rule 51(b), Rules of Civil Procedure, § 21--1--51(b), N.M.S.A. 1953.
This instruction, along with all the other instructions of the court, were read to the jury, and then, either at the request of the plaintiffs, or at least with their concurrence, all the instructions, including No. 9 1/2, were permitted to be taken by the jury to the jury room when they retired to deliberate.
Plaintiffs' position now is that they did not know the original copy with the words and markings thereon was the copy being sent to the jury room. They contend such written matter thereon, when considered with the claimed irregularity in the forms of verdict, constituted an irregularity of such gravity as to have 'undoubtedly created the impression upon the jury that the court indicated a verdict in favor of all defendants and against all plaintiffs.' In support of his position he has cited as his authorities 88 C.J.S. Trial, § 340, and Terry v. Biswell, 66 N.M. 201, 345 P.2d 217.
These cited authorities stand for the proposition that instructions, which unduly emphasize, by repetition or by singling out and making unduly prominent, any portion of the case or of the applicable law, should not be given, and if such instructions are given and the emphasis is of such nature that a party is prejudiced thereby, then such constitutes reversable error. With this we agree.
Unquestionably, the proper practice is to submit all instructions in such form and manner as to assure, insofar as possible, that no particular instruction, or portion thereof, is unduly emphasized. However, absolute uniformity in the manner and form of presenting instructions to the jury is seldom attained. This is one reason why juries are given, as was the jury in this case, certain instructions concerning their province as the sole judges of the facts, their duty to follow the law as given them by the court, and that they must not select or single out any particular instruction, or portion thereof, but must consider all of the instructions, as a whole, in reaching their verdict.
The court made it clear that he was instructing on all the law applicable to the facts in the case, that all the instructions were being given by the court, and that the jury should consider all the instructions in arriving at a verdict. He signed his name at the end of the instructions.
We cannot agree that the jury disregarded the express instructions of the court, and, because of the words written on this particular instruction, gained the impression that the court was indicating a verdict should be returned for defendants. A like argument was made and rejected by this court in the case of New Mexico-Colorado Coal & M. Co. v. Baker, 21 N.M. 531, 157 P. 167, wherein two instructions were given to the jury which were signed by plaintiffs' attorney.
In the case of State v. Kelly, 73 Mo. 608 (1881), the appellant's argument, although for a somewhat different reason, was very similar to that here urged upon us. In the Missouri case it was contended:
* * *'
In disposing of this contention, the Missouri court stated it was too frivolous for comment.
The plaintiffs have the burden of demonstrating that they were prejudiced by the claimed error. Tevis v. McCrary, 75 N.M. 165, 402 P.2d 150. It is our view that they have not met this burden, and that the error was harmless. An appellate court does not correct harmless error. Irwin v. LaMar, 74 N.M. 811, 399 P.2d 400.
Plaintiffs' third point is that they were prejudiced because six of the seven forms of verdicts submitted to the jury were on onionskin paper and in part carbon copies, whereas the form of verdict in favor of defendants was in ribbon copy on bond paper.
The record demonstrates that in the preparation of the forms of verdicts an original and six carbon copies were prepared by setting forth the style and number of the case followed by the words 'Verdict of the Jury.' The seven pages bear identical margin lines and appear very much alike, except the six carbon copy pages are lighter weight paper.
Upon the original and below the words 'Verdict of the Jury' the following appears:
'We, the Jury, find the issues in favor of all the defendants and against all the plaintiffs.
_ _
Foreman'
This is the form of verdict...
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