Tobeck v. United Nuclear-Homestake Partners

• Decision Date: 27 June 1973
• Docket Number: No. 998,NUCLEAR-HOMESTAKE,998
• Citation: 512 P.2d 1267,85 N.M. 431,1973 NMCA 99
• Parties: Erma TOBECK, Plaintiff-Appellant, v. UNITEDPARTNERS, and Harry M. Gonzales, Defendants-Appellees.
• Court: Court of Appeals of New Mexico

Page 1267

512 P.2d 1267

85 N.M. 431

Erma TOBECK, Plaintiff-Appellant, v. UNITED NUCLEAR-HOMESTAKE PARTNERS, and Harry M. Gonzales Defendants-Appellees.

No. 998.

Court of Appeals of New Mexico.

June 27, 1973.

Rehearing Denied July 19, 1973.

James T. Roach, Albuquerque, for plaintiff-appellant.

John P. Salazar, Stuart S. Keown, Rodey, Dickason, Sloan, Akin & Robb, P.A., Albuquerque, for defendants-appellees.

OPINION

HERNANDEZ, Judge.

This action arose out of a collision between a private automobile driven by the plaintiff and a tractor-trailer owned by the corporated defendant, United Nuclear-Homestake Partners, and driven by individual defendant Gonzales, an employee of United Nuclear. The accident occurred on November 21, 1969 at approximately 9:30 p.m. on State Road 56. Both vehicles were traveling in the same direction on a two-lane highway with plaintiff's car some distance ahead of the tractor-trailer. The rear of plaintiff's car was struck by the truck when plaintiff attempted to make a left-hand turn across the oncoming lane of traffic and the truck attempted to pass the automobile. The jury returned a verdict for defendants.

Plaintiff brings this appeals and asserts five separate points of error. We discuss each of these points below in the order and in the form raised by the plaintiff keepin in mind that we neither weigh the evidence nor determine the credibility of the witnesses, Platero v. Jones, 83 N.M. 261, 490 P.2d 1234 (Ct.App.1971), and all reasonable inferences are drawn in favor of the verdict, Svejcara v. Whitman, 82 N.M. 739, 487 P.2d 167 (Ct.App. 1971).

Plaintiff's Point One:

(1) 'THE COURT ERRED IN ALLOWING TESTIMONY FROM THE POLICE OFFICER AS TO THE POINT OF IMPACT.'

State Police Officer Garcia investigated the accident and was called as a witness by the plaintiff. On direct examination he testified that the tractor-trailer had left 132 feet of straight, uninterrupted skid marks in the left or passing lane of the highway. Near the end of this single set of skid marks, he observed a gouge mark in the asphalt. From the gouge mark north (the direction in which both vehicles were traveling) he saw two sets of skid marks. He traced one set of skid marks to the rear end of the tractor-trailer and the other set to plaintiff's vehicle. Part of Officer Garcia's testimony on direct examination is as follows:

'Q. Now Officer, from the Largo Ranch Road, did you measure to the tail end of the tractor-trailer?

'A. Yes, I did.

'Q. And what was that distance?

'A. Well, from the point that I put down as the approximately point of impact to the rear of the trailer is 176 feet.' (Emphasis ours)

Later, again as part of the direct examination, Officer Garcia was asked:

'Q. . . . Officer Garcia, you have indicated that there was at least 132 feet of skid marks from the truck-trailer rig prior to any possible point of impact; is that correct? (Emphasis ours)

'A. Yes sir.'

On cross-examination, over plaintiff's objection, Officer Garcia testified as follows:

'Q. . . . Officer, did you make any attempt to determine the point of impact of the subject vehicles?

'A. Yes, I did.

'Q. And upon what did you base your conclusions as to where the point of impact was?

'A. I base it in the approximate vicinity of the uninterrupted skid marks.

'Q. . . . Now, you indicated that it is your conclusion that the point of impact occurred at the north end of the uninterrrupted skid marks?

'A. Yes sir, in the vicinity of the interruption there.'

The plaintiff objects to the admission of the officer's testimony on cross-examination as to the point of impact on the ground that he was not properly qualified as an expert, and therefore his opinion as to the point of impact should not have been admitted. We need not reach this contention to dispose of this assignment of error. The estimation of the point of impact was part of the taking of the various measurements. As the excerpt from the transcript indicates, the witness initially gave his opinion as to the point of impact in the course of his direct testimony, testimony elicited by the plaintiff.

Regardless of whether the testimony as to point of impact was erroneous, plaintiff cannot complain of this testimony. Plaintiff injected the question into the case on direct examination of the officer; defendant cross-examined as to the question raised by plaintiff. State v. Borrego, 52 N.M. 202, 195 P.2d 622 (1948); compare Hale v. Furr's Incorporated, 85 N.M. 246, 511 P.2d 572, (Ct.App.1973). It was not error to permit the police officer to answer the question as to point of impact on cross-examination.

Plaintiff's Point Two:

(2) 'THE COURT ERRED IN ALLOWING HEARSAY TESTIMONY OF THE POLICE OFFICER THAT THE PLAINTIFF MADE AN IMPROPER TURN AND FURTHER ERRED IN REFUSING TO STRIKE THE TESTIMONY.'

The Police Officer testified that he had visited the plaintiff, Mrs. Tobeck, in the hospital the day after the accident. He stated that the reason for this visit was to find out 'her side of the story' and to get 'information for my accident report.' When asked the question, by defendant's counsel, 'Did you indicate anything to her as to whether or not you felt she had made an improper turn or--', plaintiff objected. In objecting, the plaintiff stated:

'. . . I think that was improper and should be stricken. It would be improper to say what this officer said about it. . . . we object to the foundation. He didn't set any kind of foundation for that and just left it hanging at that.'

Thus, while plaintiff on this appeal attempts to base his claim of error on the premise that the officer's statement was hearsay and thereby inadmissible, his objection to the statement at trial went to the question's foundation. It has long been the rule in this state that general objections asserting that any given testimony is incompetent, irrelevant or immaterial or that no proper foundation has been laid are not sufficient to sustain a specific objection raised on appeal. Henderson v. Dreyfus, 26 N.M. 541, 191 P. 442 (1919); State v. Gray, 79 N.M. 424, 444 P.2d 609 (Ct.App.1968). The plaintiff's objection that the question lacked 'foundation' in no way apprised the trial court of the specific objection, now sought to be made, that the statement was hearsay. An objection not sufficiently specific to call to the trial court's attention the specific reason for the matter's inadmissibility will be treated on appeal as if no objection had been made. Williams v. Vandenhoven, 82 N.M. 352, 482 P.2d 55 (1971); Ash v. H. G. Reiter Co., 78 N.M. 194, 429 P.2d 653 (1967). This claim of error was not properly raised below and, accordingly, must be denied here.

Plaintiff's Point Three:

(3) 'THE COURT ERRED IN ITS FAILURE TO GIVE NEW MEXICO JURY INSTRUCTION 15.4.'

Certain of plaintiff's proposed jury instructions were requested only by reference to a number given the instruction in the New Mexico Uniform Jury Instructions. Included in this list and requested by number only was U.J.I. 15.4 which reads in part as follows:

'A witness may be discredited or impeached by contradictory evidence or inconsistent conduct (or by evidence that at other times the witness has made material statements, under oath or otherwise which are inconsistent with the present testimony of the witness) (or by evidence that the witness has been convicted of a crime) (or by evidence that the general reputation of a witness for truth, honesty, or integrity is bad) (or by specific acts of wrongdoings of the witness).'

The directions for the use of this instruction point out that the instruction 'if properly used and adapted with the material in brackets will cover all instruction on the point of impeachment. . . .' (Emphasis ours) The pre-trial order signed by both parties in this case provided, in part, that counsel might submit jury instructions by reference to U.J.I. numbers 'unless the instruction requires some tailoring or alteration, in which case the complete instruction will be submitted.'

Assuming, but not decidingThat there was evidence in the case which warranted an impeachment instruction, we nevertheless conclude that the trial court's refusal to give the instruction was not error. Without alteration to conform to the specific facts adduced by the testimony at trial, the instruction was confusing and misleading. Even v. Martinez, 75 N.M. 132, 401 P.2d 310 (1965). The plaintiff asserts that both defendant Gonzales and one of the experts, Mr. Pipkin, were impeached by 'contradictory evidence.' Plaintiff further asserts that 'the contradictory evidence and prior inconsistent statements are sufficient for the impeachment instruction. * * *' However, instruction number 15.4 submitted by plaintiff in unaltered form deals with other types of impeachment as well, such as impeachment by evidence of general reputation of a witness, conviction of a crime, etc. While there may have been some evidence of contradiction or inconsistent statements, a through examination of the record shows no impeachment by conviction of crime or by evidence of reputation. To have given the requested instruction, which included impeachment methods for which there was no evidentiary support, would have introduced false issues and would have misled the jury. LaBarge v. Stewart, 84 N.M. 222, 501 P.2d 666 (Ct.App.1972).

We agree with plaintiff that the Uniform Jury Instructions are to be given when justified by the facts, and the refusal to give such instructions when accompanied by the slightest prejudice to a party is reversible error. Jewell v. Seidenberg, 82 N.M. 120, 477 P.2d 296 (1970). Here, however, all the elements in the requested instruction were not justified by the facts. It was not error to refuse the requested instruction.

Plaintiff's Point Four:

(4) 'THE TRIAL COURT ERRED IN ALLOWING A. O. PIPKIN TO TESTIFY WHEN HE WAS NOT LISTED IN THE PRE-TRIAL ORDER.'

The pre-trial order in this case required, in part, that 'The names of other witnesses...