*1 EASLEY, (6) C.J., SOSA, parent corporation Justice, The pays Senior expenses salaries or losses of concur. or the sub-
sidiary. PAYNE, J., dissenting. (7) subsidiary substantially The has no parent corpora- business except with
tion or no except conveyed assets those
it parent corporation.
(8) parent corpora- In papers
tion, officers, and in the statements of its
“the subsidiary” is referred to as such or department as a or division. BLOOM, Representa- Linda as Personal tive of the of Louise (9) The directors Estate executives of the or Deceased, Plaintiff-Appellant, subsidiary independently in do not act interest subsidiary but take di- v. parent corporation. rection from the Lewis, Leann LEWIS and Earl legal requirements The formal Defendants-Appellees. separate the subsidiary indepen- as a HODGES, Repre corporation dent not observed.’ R. James as Personal Hоdg sentative of the Marsha Estate U., Auto., Intern. United Etc. v. Cardwell es, Deceased, Plaintiff-Appellant, Co., supra (quoting MFG. at 1286 Fish v. East, (10th 1940)). F.2d Cir. met, guidelines Not all of these must be Leann Earl LEWIS and only
these are factors for court to Defendants-Cross-Claimants-Appellees, consider in determining whether not to recognize separate corporations enti- ties. Id. Walter Dils and Barbara as Personal present only this testi Dils, Deceased, the Estate of Louise De mony in the relationship the record on fendants-Cross-Defendants-Appellants. corporations the two is that Marriott Inter Corporation, organized national under the No. 3952. laws of Maryland, subsidiary of Mar is New Appeals Court of Mexico. Corporatiоn organized riott which under Delaware; the laws of agree that all 3, 1980. Nov. formerly Corpora
ments Marriott between
tion and overseas entities have been as
signed operate to and now under Marriott
International Corporation. The
evidence concerning that the trial court had corporations
the relationship of the was the
management agreement between Marriott
Corporation and SHARACO was as
signed Corpora to Marriott International support
tion. The evidence a con does
clusion Corpora that Marriott International Corpora
tion is the ego alter of Marriott
tion. judgment trial court’s and the award attorneys’ fees are reversed.
IT IS SO ORDERED. *2 Roach, A., Albuquerque, P.
Klecan & Dils, Walter Barbara is there a presumption witness Estate of Personal material was the recorded unfavor- Deceased. Louise able to his client? Lowell Burciaga, Albuquerque, G. Juan stating a jury instruction II.Should McKim, Leann Gallup, for Earl Lewis and is a of due there Lewis. part care on decedent *3 A., G. Berry, Marchiondo & P. Charles wrongful in a given death case? Hodges, Berry, Albuquerque, for James R. testimony the III. of the investi- Should Estate of as Personal of the police gating officer have been ex- Hodges, Deceased. Marsha speculative? cluded error to two IV. Was it consolidate the OPINION cases? ANDREWS, Judge. court,to error V.Was it for the allow Hodges, Laurie Marsha Debbie Dils and of Dils’ insurance the fact passengers by were driven Bordelon in a car brought on before the to be Proceeding opposite Louise Dils. in di- the of apрlicability the issue the of the rection was a truck driven Lewis by Leann purpose family doctrine? Cindy passen- Lewis was the sole an instruction have been VI.Should Dils, ger. Dils, Marsha Louise Debbie and party the effect that a were killed in a collision with the vehicle is on the side whose Lewis vehicle. road of the has the burden of ex- parties appeal The to this are Walter and plaining its there? personal Louise the the court a have directed VII.Should of representative the estate of Louise Dils on the Hodge’s issue of con- and, (Dils); (Lewis); Leann and Earl Lewis tributory negligence? Hodges, personal representa- James R. the (Hodg- tive the estate of Marsha Recording Tape I. Destruction aсtion, es). Dils action The and the attorney Shortly after Lewis third-party and the cross-claims and tape a inter- for Lewis conducted recorded complaint, were for trial. consolidated Bordelon, person view with Laurie recovered a money verdict riding Dils car who survived the Dils; appeals a in favor he verdict entered deposition by а accident. later taken on of Lewises his claim The them. Dils, Bordelon did not recall attorneys for plaintiffs appeal Dils favor of verdict in a anything about accident which had complaint. the Lewises bearing liability. issue of , Dils’ version of the that the accident was tape of the earlier sought to obtain Lewis vehicle was in an- passing Dils’ lane discovery, attorney but the for by interview hill, vehicle as it destroyed tape, purportedly rounded a and that Lewis had nothing significance was unable to she was avoid Dils as sud- because there it, tape. wanted reuse appeared and he denly over the hill. Lewis con- lane, that Dils tended swerved into Lewis’ ato argues that the actions amount gesture which was to be as a understood evidence; thus, destruction of from inexperienced “hello” Dils. tapie con- presumption there is a custom, seeking this swerved into Dils’ lane If to Lewis. unfavorable tained material to avoid but collided with Dils car arose, or even if it was such a as it returned to its own is undis- inference, lane. It the trial court com- arguable аn puted point impact that the in Dils’ errors, but we conclude mitted several lane. it did not. appeal. issues are
Several
raised on this
not
of the interview was
tape
any way
was in
available
destroys
tape
attorney
I.Where
an
evidence which
it was undiscoverable work
recording of an
with a Dils because
interview
investigating
of the acсident made
product, and thus the destruction
tape
police
specula-
not
been destruction
police
could
officer. The
officer’s
attorney
taken
an
evidence. Statements
response
question
tion
to a
was offered
may
product,
from
work
a witness are
answer,
any
which did not call for
such
good cause exists.
not be disсovered unless
Dils to
thus the burden was on counsel for
Co.,
Carter
Burn
Const.
Dils did
move that
the answer be struck.
denied, 85
(Ct.App.),
P.2d
cert.
move,
preserve
not
so
and thus
(1973).
from the
might
error which
have resulted
party must
good
To
cause a
establish
speculative testimony.
sought
not
show that
the material
Evidence,
Mexico Rules of
Rule
New
diligent
upon
available
the exеrcise
timely
regard
to the effect of failure to
necessary
it is
effort and
object, states:
his
or that the denial
preparation of
may
predicated
Error
a rul-
sought
the-production of the material
*4
ing
or excludes evidence
which admits
cause
unfairly prejudice
will
his case or
party
right of the
is
unless a substantial
hardship
injustice.
him undue
or
affеcted, and
31,
Id. at
VI.
Instruction as to the Effect of Be-
they had to assert the affirmative defense
ing on Wrong
of the Road
Side
legal
excuse from the
duty
staying on
side;
It
their
is clear that
own
nor was the
told that
when an accident
occurs, the
party whose
defendants had the burden of
vehicle is found to
satisfac-
be on the
torily explaining
presence
side of the road has
explain
burden to
its
proof
there. Frei
side if plaintiff’s
on that claim
Brownlee,
56 N.M.
accepted by
jury.
P.2d 671
to be
(1952);
Schuelke,
Paddock v.
states,
The Use Note to U.J.I.Civ. 3.1
U.J.I.Civil which deals with Hodges’ cross-appeal alleges error complaint, re- answer, proof,” burden the trial court’s refusal to direct a verdict assumption sion of that is that Lewis was contributory
in his favor on the issue contributorily negli- Dils was giving negligent; of in- negligence, as well as in the negli- negligence Hodges contributorily which not contributory gent; structions Hodges. and, therefore, аpplied against (the pas- gent, could have against both senger) should have recovered a verdict The court should have directed negligent defendants. Marsha’s in favor of on the issue of negligence. Bolen v. Rio contributory Cf. assumption of an erroneous Secondly, an Estates, Inc., 466 P.2d Rancho contributory negligence finding of Dils’s (Ct.App.1970). We find no evidence to (Bloom’s)and bears on Dils’s Hodges’ negligence, support finding should have no claims had testimony beyond Lewis’ negli- upon the claims of effect whatever driving while but once before “swerved” That Hodges against Dils. gence made testimony can- changed had not lanes. This viewed favor of must be verdict in Hodges as- support an inference that prеvailing light most favorable to the negligent riding with a sumed the risk Melbourne, 90 N.M. party. Romero v. driver, duty to shout a or that she had a viewing In so (Ct.App.1977). Hodges’ conduct warning, plaintiff or that verdict, mind necessary it is to bear in to this acci- way contributed negli- acts of Hodges claimed several dent. Lewis gence against both Thus, Hodges against included: the verdict denying relief to Dils in thе and the one to exer- the Defendants failed 1. That are remanded for a action every operator of a vehi- duty of cise the proceeding, new trial. In that public highways to exercise using cle give the correct instruction court should avoid an at all times to ordinary care burden, Lewis’ and should then direct accident. negli- Hodges’ contributory verdict as keep the 2. The Defendants negligence gence the issues of Lewis’ before lookout. proper or Dils’ toward toward Dils to maintain 3. The Defendants failed Hodges are determined. of their vehicles. proper control *6 IT ORDERED. IS SO operate Defendants failed to 4. That the of the right half their vehicles HERNANDEZ, J., concurs. right of the entirely to the roadway and WALTERS, J., part, in dissents concurs thereof. center part. in Defendants, driving while That the 5. vehicles, di- opposite in WALTERS, proceeded Judge (concurring part, in attempted pass each other to part.). in rections and dissenting wrong of the upon the side the left or to majority opin- parts I of the concur all roadway. VI except pаragraph of ion the last Section their vehi- drove 6. That the Defendants Hodges verdict and the reversal of the roadway when the left side of the cles to against Dils. grade where crest of a approaching the paragraph majority assumes view is obstructed. the driver’s Dils object to that the found which I operated their 7. the Defendants That incomplete contributorily negligent under heedlessly will- carelessly and vehicles reviewing not believe a instructions. I do ful, rights disregard of wanton assumptions about a make court should and cir- due caution others and without findings, especially when there jury’s cumspection. to- negligence alleged and several acts of claims, defendants the Dils presented. Agаinst these evidence has been ward which negligence contributory Hodges’s evalua- asserted majority is correct its Even if the if the jury was instructed verdicts, exten- and the logical jury’s tion of the defense, requested Dils and obtained an instruc- proved Dilses their affirmative Despite contributory negligence recover. this in- tion on and the could not allowing to рassenger, struction an erroneous defense of a which were ob- (see against Hodges Paragraph Dils jected by Hodges. and to Dils also failed to VII, supra), a verdict was returned for request proper instruction on the issue VI, and Dils. Stated another Paragraph supra. can- discussed She way, Dils lost the verdict to under a complain improper оf the effect of not now lighter imposed burden on Dils than will be when she con- incomplete instructions retried, on Dils Hodges-Dils Jones, if the case is Platero v. tributed to the errors. See because Dils will not be able to assert (Ct.App.1971). Hodges’s contributory negligence, and that, having lost a This court should hold too, will have the burden of explaining her instructions verdict under mоre favorable on the side of the road if Hodges- govern retrial of the than will the jury position shortly finds that was her retrials, (Bloom) Dils Dils-Lewis Lewis and before the crash. permitted to chance that should not be Insofar Hodges-Dils as the suit is con- jury will reach a differ- somehow a second cerned, and under the instructions to Hodges. on her to One ent decision the jury, thе one jury could found that Hodges’s entitle- already has decided or more negligent pleaded acts recovery against Dils under in- ment to Hodges, injury caused to prejudicial Hodges. structions most conduct had not contributed ver- deprived not be of that Hodges should injury; wilfully to that or that Dils was and dict.
wantonly negligent Hodges’s recovery retrial, begs Upon this is cаse negligence. was not by contributory barred interrogatories to be submitted special
Finally, appeal objected jury. to the (1) grounds
the trial was tainted because of the de-
stroyed tape recording of Bordelon’s state-
ment, (2) negligence of Lewis was evident physical
from the fact that Lewis was on side of the road at the moment (3) impact, pre- Dils was denied the sumption of a decedent’s due care. Items (1) (3) majority are answered in the HARTLEY, Plaintiff-Appellant, E. James (with opinion concur) adversely which I VI, Dils. Item is by Paragraph covered BACA, Defendant-Appellee. Gordon supra, and under the evidence of this *7 applies to both the Dils and Lewis drivers. No. 4921. application It has no whatever to of New Mexico. Appeals Court negligence alleged by Hodges. acts of Dils’s driver, The jury Hodges’s was aware that 2, 1981. July Dils, was on her own side of the road when occurred; nevertheless, the accident it held passenger.
Dils liable in to her clearly
This indicates to me that whether satisfactorily
either ex- driver could will
plain being away evidence of immediately
side of the road before and at wrong-
the time of the it was not negligence
side-of-the-road resulted against Dils.