Torres v. Rosenbaum, 5521

• Decision Date: 25 September 1952
• Docket Number: No. 5521,5521
• Citation: 1952 NMSC 89,56 N.M. 663,248 P.2d 662
• Parties: TORRES v. ROSENBAUM et al.
• Court: New Mexico Supreme Court

Page 662

248 P.2d 662

56 N.M. 663

TORRES v. ROSENBAUM et al.

No. 5521.

Supreme Court of New Mexico.

Sept. 25, 1952.

Mabry & Mabry, Albuquerque, for appellants.

W. T. O'Sullivan, Joseph L. Smith, Albuquerque, for appellee.

McGHEE, Justice.

The defendants appeal from a verdict and judgment awarding the plaintiff $7,500 for injury occasioned by a dog bite.

The plaintiff was employed as a housemaid by the defendants at the time she received the injury of which she complains. She testified, in substance, as follows: The defendants occasionally purchased fresh eggs from a neighbor, Mrs. Anderson. On one occasion the plaintiff was asked to go to the Anderson home to get some eggs, a distance of about a quarter of a mile. When she arrived at the Anderson home their Collie dog rushed upon her and tore her clothing. She told her employers of the actions of the dog and thereafter one of the defendants' sons got the eggs. Several months later she drove to the Anderson home with the defendant, Mrs. Rosenbaum, who asked her to go in and get the eggs. After expressing her reluctance to enter the premises because of her fear of the dog, she was reassured by Mrs. Rosenbaum the dog would not harm her. She then walked up the driveway to the house and was jumped upon and bitten on the lower left leg by the dog.

The plaintiff's doctor testified that as a result of the dog bite the plaintiff suffered osteomylitis necessitating surgery and that she further developed appendicitis which was traceable to the infection resulting from the dog bite.

Testimony other than that of the plaintiff was introduced to the effect the dog would bark at persons approaching the premises until spoken to by its owners; that the dog would bark at and chase passing automobiles; that it had been hit while so doing, and was finally killed when struck by an automobile under similar circumstances.

After the defendants rested their case the plaintiff called to the witness stand Mrs. Lee A. Robertson, a witness who was subpoenaed by the defendants, but who had not testified prior thereto. Over the objection of the defendants the witness was permitted to testify Mrs. Anderson had told her the dog disliked Spanish people. The record reads as follows:

'Q. Will you tell the Court and the Jury whether 'Big Boy' the dog that the Andersons' had, had any proclivities for barking at, charging or showing a display of any kind over people in particular? A. Mr. O'Sullivan, you are asking the wrong person. Mrs. Anderson told me at one time 'Big Boy' apparently disliked * * *.

'Mr. Mabry: I object to that as hearsay, what Mrs. Anderson told her.

'The Court: I will overrule the objection.

'Mr. Mabry: She is not a party to this lawsuit, your Honor.

'The Court: I will allow it as evidence of a declaration against interest.

'Mr. O'Sullivan: She was a witness, we are impeaching her, at least what it was and Mrs. Anderson told you. * * *

'A. She is the one you should ask because she told me that 'Big Boy' disliked Spanish people. I know nothing of it myself, personally.'

As their first point in this appeal the defendants assert the admission of the italicized answer constitutes reversible error.

The plaintiff contends the error, if any, committed by the trial court is improperly assigned. The assignment reads:

'The District Court erred as follows:

'1. In admitting the testimony of Mrs. Lee A. Robertson. * * *'

The plaintiff maintains the assignment is too broad and so we might view it if it were not for the fact the specific portion objected to constitutes the sole testimony of the witness except her responses to questions asked for purposes of identification. Since there can be no doubt as to the matter actually objected to under the assignment, and as the claimed error is definitely set out under the first point, we will not refuse to pass upon it.

At the trial of the case, as seen in the quoted portion of the record, the court admitted the testimony as a declaration against interest, while the attorney for the plaintiff urged it was admissible by way of impeachment of Mrs. Anderson; but it was admitted at the argument the evidence was not admissible for either purpose. The plaintiff now contends the testimony is admissible on the ground it is relevant to prove the general reputation of the dog.

The basis of liability in this case is negligent conduct on the part of Mrs....