*1 ambiguous The record —both jury prosecutor stated to what the the statement the context which record, hold we cannot
made. With
preju
statement was
prosecutor’s
that the
denying the
error occurred
dicial or that
Gonzales, 78 N.
motion.
mistrial
State v.
Par
State v.
(1967);
M.
Jan.
«03 Wayne Jordan, Shipley, A. Durrett, Con- way Sandenaw, & Alamogordo, tiff-appellant. Overstreet,
S. Thomas Alamogordo, for defendant-appellee.
OPINION
WOOD, Judge. Chief appeal This involves two claims of damage shipped by to merchandise manufacturer in California to Alamogordo, New Mexico. Defendant is “ * * * common carrier operating pur suant to the laws United and States regulations Interstate Commerce “ * * * [Ujnder Commission.” federal law, in an action to recover from a carrier shipment, shipper es prima tablishes his he facie case when good condition, arrival in damaged condition, and amount of ” * * * damages. Missouri P. R. Co. Stahl, v. Elmore & U.S. S.Ct. denied, 12 L.Ed.2d reh. 377 U. S. S.Ct. L.Ed.2d 752 application of this is dis- rule positive. applying In the rule we discuss: findings of (1) fact conclusions of law; interrogatories; answers (2) (3) probative hearsay. value of shipments ship-
Two are involved. Both ments were received common carrier some- later discovered was where California. turned we thing the carton was shipments over to defendant. Defendant had hit them and September, shipment first crushed but not delivered torn. April, 1971 and the second attacked, and the Findings which *3 ship- Claiming in both merchandise above, to sub- undisputed referred evidence delivered, plain- damaged ments was when in refus- stantially support trial the court defendant, tiff sued see U.S.C.A. § in the first ing find that merchandise to replacing the cost 20(11) (1951), for the of damaged in a con- delivered was Judgment was damaged merchandise. dition. ship- first in connection with the defendant findings concerning of rule One ment; plaintiff appeals. Judgment * * “* party a has that where fact is with the in connection re- proof an issue and the burden of shipment; cross-appeals. issue, are which quests findings on that refused, the refusal of legal effect of the shipment. The first finding against findings is a requested the * * *” decide, that there assume, but do not
We Tabet Lumber party. that delivered proof Chalamidas, that the merchandise Company v. rule, by the car- September, 1971 was received Under this (Ct.App.1971). P.2d 885 Plaintiff plaintiff’s rier in an condition. re- of refusal the trial court’s deliv- shows defendant a legal asserts the evidence of finding effect quested has ain ship- merchandise portion of this ered in the first merchandise that The trial damaged condition. damaged delivered. when ment was not finding to that plaintiff’s requested refused findings, also concerning rule Another of this asserts the refusal effect. Plaintiff when Tabet, supra, is that to in referred disagree. error. request was is re- trial court properly requested, the isit and that facts, quired find ultimate first delivery of the At the time of on a dis- way either to find error to fail containing shipment some of cartons See puted is material. Sanchez issue that damage on visible showed merchandise Sanchez, P.2d five of cartons. Four the outside of applicable is not This rule damage were showing visible the cartons case. damage delivery; no opened at of time inside the merchandise was found to liberally con to be Findings are “. . . which cartons Other cartons. Fulgh judgment. support of the strued in tears in the cardboard
had scratches
P.
al.,
et
um v. Madrid
opened at that time.”
were not
if
findings are sufficient
The
454 (1927).
claimed
damage
to merchandise
them, taken to
of all of
a fair construction
shipment was not
with the first
connection
judgment.
court’s
gether, justify
until four
deliv-
discovered
months after
Company, 72
Bus
Albuquerque
Hoskins v.
paragraph are
ery. The statements in this
(1963). Unchal
P.2d 700
findings
the trial court
taken from
above, when
findings, referred to
lenged
challenged.
are not
These
judg
support of the
liberally in
construed
Springer Corpora-
binding
appeal.
are
damaged
.the
effect that
ment,
206, 453
Kirkeby-Natus, 80 N.M.
tion v.
after
four months
discovered
merchandise
dam
to have been
delivery
shown
was not
Thus, the
delivery.
the time of
aged at
undisputed
evidence
findings are
unchallenged
opened
were
cartons
at time
merchandise
delivery of the
prove
failed to
worst.
looked the
“.
.
.
those that
damaged condition.
in a
.
.
practice
.
.” The
lib-
findings, construed
damaged
unchallenged
anything that
to be
at
did rule
time,
damage
trial court
erally,
it.
show
we check
whether the
merchandise was delivered
shipment.
The second
damaged
findings,
condition. These
There is substantial evidence that
por-
plaintiff’s
trial court’s
re-
refusal of
tion of the merchandise
April,
delivered in
quested
support
finding,
the conclusion that
damaged
1972 was
when
De-
delivered.
plaintiff should not recover for
claimed
asserted,
fendant
both in the trial court
ship-
merchandise
the first
appeal,
and on
that there was a failure of
ment.
proof that the merchandise was
delivered
the carrier in California in an undamaged
Plaintiff does not contend that the
condition.
findings,
above,
discussed
fail to
Plaintiff’s evidence concerning delivery
judgment.
Its claim is that
one of
to the carrier in undamaged condition was
*4
trial
findings
by
court’s
supported
is not
interrogatories.
answers to
Defendant
substantial evidence. This finding goes to
contends certain of these answers were im-
negligence
in handling the
properly admitted over its objection that
in
merchandise
the four month
after
period
the competency of the
give
witness to
delivery of
any
the merchandise and before
answers had not been established. We
damaged merchandise was
As
discovered.
need
question.
not answer this
suming an
support
absence of evidence to
finding,
this
it
not require
does
a reversal.
Assuming the answers to interroga
This
unnecessary
was
for a deci
tories,
properly
were
admitted, none of the
and,
pointed
above,
sion
as
out
identify
answers
any merchandise that was
are
support
sufficient
the conclusion delivered to the carrier. The answers re
should not
Garcia
recover.
fer to merchandise identified in an “Exhib
Distributing
Color Tile
Company,
v.
N.
it A”
interrogatories.
attached to the
“Ex
570,M.
tion : “to toilet It ordered. by freight line.” damaged HERNANDEZ, concurs. J., hearsay but admitted invoice Accord objection. into evidence without *5 SUTIN, part in and dissents concurs J., in the is be ingly, the to considered invoice part. in relevant evidence. same manner as other 743, Doak, P.2d 153 438 Fox v. part and SUTIN, in Judge (concurring however, This, mean that not does dissenting part). in proof hearsay is conclusive the statement and dis- the first I concur on Rather, the of therein. the matter asserted judg- shipment. The the second sent on probative value hearsay statement has “ affirmed. be * * court should * of the trial ment ra extent of whatever may have. persuasive power it tional ” * * * Romero, Shipment 82, First State v. Baca, N. 83 P.2d 781 State v. is that plaintiff’s first contention 1182 (Ct.App.1971). 489 P.2d M. concluding: erred in to exercise That the failed hearsay opinion, In the state our the merchan- inspecting in diligence due is, value; probative it ment has no 3j 1971, September and on dise received prove not tend to that the merchan does “A”, and on Exhibit described therefore an un the carrier in dise was delivered to to recov- not entitled should be Plaintiff in
damaged condition. See “Probative” First Amended ery on Count I of ed. Dictionary, (4th Black’s Law West [Emphasis Complaint. (Tr. 62) added] 1951). probative because It has no value can- judgment that a “It is fundamental appears on all about it that it we know the con- appeal, unless on sustained be representative of of the sales the invoice rests finds clusion who manufacturer. do not know Langdon v. fact.” or of one more ba statement, why or on what inserted the P.2d 269 Jaramillo, 80 N.M. Romero, supra. Compare v. sis. State 540, 445 Miller, (1969); Galvan uncorrobo is no more than The statement hearsay not con hearsay. does rated Such finding on no Fergugon- made evidence, trial court stitute substantial inspect. consider Corp. Com’n, 63 to I plaintiff’s duty Steere Motor Co. State and, be- to be a conclusion (1957), inspect- due to exercise of the total absence of corroboration failed cause September record, persuasive received ing has no rational the merchandise basis inspect failure to power. 1971. The for the trial court’s conclusion that maining points are answered and above re- tiff could not quire recover Count I. no further discussion. only issue is: Does the failure inspect September 3, between Shipment Second January deprive re- of On the shipment, plaintiff estab- lief? The answer is “Yes”. lished substantial evidence that the mer- relationship between chandise at the it was time consignee defendant that of and common loaded by the shipper in California. Dur- liability carrier. “The of a car- common ing reading of the interrogato- witness’ as safety rier such of the ries, the objected ques- to three does not terminate until the has tions which established upon the fact based property, made an actual “Exhibit objection A”. The was over- good condition . .”13 Am.Jur.2d ruled. Section 21-1-1 (32) (c) provides: (3) Carriers, general 405. rule is “The § Objections form in- written consignee is entitled to make reason- terrogatories submitted under Rule 31 inspection able examination are waived unless writing upon served in goods accepting delivery, before their the party propounding them within the purpose they of ascertaining whether time allowed for serving succeeding satisfactory Am. condition.” 13 cross or other interrogatories and within 425; Carriers, Carriers § Jur.2d C.J.S. 3 days after interrog- service of the last § atories authorized. consignee accepts delivery, When The defendant objections waived carrier, such, status of the ter- common questions. The answers were admissible. persons, minates. As third the common *6 possession longer carrier is no of and “A”, Exhibit pack- identified five not the property. prop- owner of the ages partitions, weight 189, of stall was a erty Whitney consignee. owned shipper memorandum from the Co.,
Manuf’g
Co. v. Richmond D. R.
&
of the merchandise
loaded
California.
(1893).
general
S.C.
S.E.
It was attached as an exhibit to the inter-
long-
rule of
liability
common carrier
is no
rogatories
By
submitted to the witness.
applicable.
er
cross-interrogatories defendant examined
case,
plaintiff accepted
In the instant
the witness with reference to Exhibit “A”.
arrival,
inspection.
exhibit
before the trial
At
without
court.
Then
case,
the conclusion of the
waited
months
motion to
four
dismiss,
discover
did
damage.
not claim that Ex-
The defendant
“A”
liability. Kingman
free of
Im
hibit
Louis
not offered
evidence to
St.
plement
Co.,
Ry.
identify
Co. v.
Mo.
merchandise at the
Southern
time was
App. 317,
loaded in California. The failure of