{ "id": 2771770, "name": "Lacy CRABTREE, Plaintiff-Appellant, v. Lavon Mary MEASDAY, Defendant-Appellee", "name_abbreviation": "Crabtree v. Measday", "decision_date": "1973-01-26", "docket_number": "No. 990", "first_page": "20", "last_page": "27", "citations": [ { "type": "official", "cite": "85 N.M. 20" }, { "type": "parallel", "cite": "508 P.2d 1317" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "422 S.W.2d 244", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10127181 ], "opinion_index": 0, "case_paths": [ "/sw2d/422/0244-01" ] }, { "cite": "36 N.M. 153", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1586539 ], "weight": 2, "year": 1932, "opinion_index": 0, "case_paths": [ "/nm/36/0153-01" ] }, { "cite": "20 F.R.D. 108", "category": "reporters:specialty", "reporter": "F.R.D.", "case_ids": [ 3767252 ], "opinion_index": 0, "case_paths": [ "/frd/20/0108-01" ] }, { "cite": "18 F.R.D. 510", "category": "reporters:specialty", "reporter": "F.R.D.", "case_ids": [ 3750563 ], "opinion_index": 0, "case_paths": [ "/frd/18/0510-01" ] }, { "cite": "30 F.R.D. 534", "category": "reporters:specialty", "reporter": "F.R.D.", "case_ids": [ 3776685 ], "opinion_index": 0, "case_paths": [ "/frd/30/0534-01" ] }, { "cite": "326 F.2d 598", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 115017 ], "opinion_index": 0, "case_paths": [ "/f2d/326/0598-01" ] }, { "cite": "51 F.R.D. 9", "category": "reporters:specialty", "reporter": "F.R.D.", "case_ids": [ 3733625 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/frd/51/0009-01" ] }, { "cite": "285 Ala. 666", "category": "reporters:state", "reporter": "Ala.", "case_ids": [ 2579791 ], "weight": 3, "year": 1970, "opinion_index": 0, "case_paths": [ "/ala/285/0666-01" ] }, { "cite": "336 S.W.2d 683", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10168403 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/sw2d/336/0683-01" ] }, { "cite": "312 P.2d 51", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1957, "opinion_index": 0 }, { "cite": "151 Cal.App.2d 688", "category": "reporters:state", "reporter": "Cal. App. 2d", "case_ids": [ 4416392 ], "year": 1957, "opinion_index": 0, "case_paths": [ "/cal-app-2d/151/0688-01" ] }, { "cite": "50 N.M. 6", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1577077 ], "weight": 2, "year": 1946, "opinion_index": 0, "case_paths": [ "/nm/50/0006-01" ] }, { "cite": "360 U.S. 474", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 8871 ], "weight": 3, "year": 1959, "opinion_index": 0, "case_paths": [ "/us/360/0474-01" ] }, { "cite": "78 N.M. 272", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5324225 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/78/0272-01" ] }, { "cite": "65 N.M. 307", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2845954 ], "weight": 2, "year": 1959, "opinion_index": 0, "case_paths": [ "/nm/65/0307-01" ] }, { "cite": "426 F.2d 58", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2247155 ], "opinion_index": 0, "case_paths": [ "/f2d/426/0058-01" ] }, { "cite": "233 U.S. 250", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3673366 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/233/0250-01" ] }, { "cite": "120 P. 694", "category": "reporters:state_regional", "reporter": "P.", "year": 1911, "opinion_index": 0 }, { "cite": "16 N.M. 721", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 4684247 ], "year": 1911, "opinion_index": 0, "case_paths": [ "/nm/16/0721-01" ] }, { "cite": "13 A.L.R.3d 1312", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "weight": 3, "opinion_index": 0 }, { "cite": "16 Alaska 436", "category": "reporters:state", "reporter": "Alaska", "case_ids": [ 1262924 ], "opinion_index": 0, "case_paths": [ "/alaska/16/0436-01" ] }, { "cite": "237 F.2d 263", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 427018, 1262924 ], "opinion_index": 0, "case_paths": [ "/f2d/237/0263-01", "/alaska/16/0436-01" ] }, { "cite": "86 Cal.Rptr. 205", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1970, "opinion_index": 0 }, { "cite": "6 Cal.App.3d 919", "category": "reporters:state", "reporter": "Cal. App. 3d", "case_ids": [ 4384698 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/cal-app-3d/6/0919-01" ] }, { "cite": "71 Cal.Rptr. 780", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1968, "opinion_index": 0 }, { "cite": "265 Cal.App.2d 796", "category": "reporters:state", "reporter": "Cal. App. 2d", "case_ids": [ 2204924 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/cal-app-2d/265/0796-01" ] }, { "cite": "245 Ark. 288", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1606896 ], "weight": 2, "year": 1968, "opinion_index": 0, "case_paths": [ "/ark/245/0288-01" ] }, { "cite": "337 F.Supp. 1161", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3589053 ], "opinion_index": 0, "case_paths": [ "/f-supp/337/1161-01" ] }, { "cite": "172 N.W.2d 241", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 10780134 ], "opinion_index": 0, "case_paths": [ "/nw2d/172/0241-01" ] }, { "cite": "13 A.L.R.3d 1300", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": 0 }, { "cite": "238 Ark. 652", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1734175 ], "weight": 2, "year": 1965, "opinion_index": 0, "case_paths": [ "/ark/238/0652-01" ] }, { "cite": "113 P. 805", "category": "reporters:state_regional", "reporter": "P.", "year": 1911, "opinion_index": 0 }, { "cite": "16 N.M. 120", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 4684964 ], "year": 1911, "opinion_index": 0, "case_paths": [ "/nm/16/0120-01" ] }, { "cite": "81 N.M. 393", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5371079 ], "weight": 2, "year": 1970, "opinion_index": 0, "case_paths": [ "/nm/81/0393-01" ] }, { "cite": "57 N.M. 612", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8842820 ], "weight": 2, "year": 1953, "opinion_index": 0, "case_paths": [ "/nm/57/0612-01" ] }, { "cite": "377 P.2d 953", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 5348435 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/nm/71/0280-02" ] }, { "cite": "71 N.M. 280", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5348435, 5346789 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/nm/71/0280-02", "/nm/71/0280-01" ] }, { "cite": "58 N.M. 807", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1587701 ], "weight": 2, "year": 1954, "opinion_index": 0, "case_paths": [ "/nm/58/0807-01" ] }, { "cite": "151 P. 311", "category": "reporters:state_regional", "reporter": "P.", "year": 1915, "opinion_index": 0 }, { "cite": "20 N.M. 472", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 4713765 ], "year": 1915, "opinion_index": 0, "case_paths": [ "/nm/20/0472-01" ] }, { "cite": "505 P.2d 68", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 2764435 ], "opinion_index": 0, "case_paths": [ "/nm/84/0473-01" ] } ], "analysis": { "cardinality": 960, "char_count": 20334, "ocr_confidence": 0.772, "pagerank": { "raw": 3.470019257644069e-07, "percentile": 0.8811756978881781 }, "sha256": "0ae85eb0e8cbb68124b7e1804f289676d38cf04358f78d295df6b55186c2fa5a", "simhash": "1:2e0eb353a7cd1dca", "word_count": 3345 }, "last_updated": "2023-07-14T15:38:26.265107+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WOOD, C. J., and HERNANDEZ, J., concur." ], "parties": [ "Lacy CRABTREE, Plaintiff-Appellant, v. Lavon Mary MEASDAY, Defendant-Appellee." ], "opinions": [ { "text": "OPINION\nSUTIN, Judge.\nPlaintiff\u2019s claim for personal injuries, suffered in an automobile accident, received an adverse verdict of the jury. Plaintiff appeals from the judgment entered for defendant.\nWe reverse.\nThree points are raised on appeal, (1) whether plaintiff\u2019s accident report introduced in evidence by stipulation estopped plaintiff from explaining or denying the correctness of the document; (2) whether defendant can introduce in evidence her own answers to interrogatories propounded by plaintiff; and (3) whether a deposition, not read or signed by the witness, is admissible in evidence where the parties have not waived the examination, reading and signing of the deposition by the witness.\n(1) Plaintiffs Accident Report Introduced in Evidence by Stipulation did not Estop Plaintiff from Explaining or Denying the Correctness of the Document.\nOn September 15, 1971, the parties stipulated that the \u201cstatement of the plaintiff, . . . designated as \u2018Claimant\u2019s Report of Accident\u2019 dated May 7, 1969 may, at the election of either party be introduced into evidence.\u201d [Emphasis added]\nOn December 7, 1971, more than a month before trial, the trial court entered an order, including within it, the binding effect of the stipulation. It reads in part: * * * * * *\nIT IS FURTHER ORDERED that the plaintiff is estopped from denying the effect of the Stipulation and is therefore bound thereby with respect to claimant\u2019s report of accident dated May 7, 1969 and is estopped from claiming that language was added to said report after plaintiff signed and initialed it, and to which action and ruling of the court the plaintiff excepts.\nOn January 17, 1972, the day before trial, a pre-trial order was signed by court and counsel pursuant to \u00a7 21-1-1(16), N. M.S.A. 1953 (Repl. Vol. 4). One of the contested issues of law stated was:\n1. The binding effect of plaintiff\u2019s stipulation to allow the introduction of an ex parte statement, entitled \u201cCLAIMANT\u2019S REPORT OF ACCIDENT\u201d.\nUnder Proposed Exhibits and Objections, it is stated:\n2. Ex parte statement of plaintiff, entitled, \u201cCLAIMANT\u2019S REPORT OF ACCIDENT\u201d. (Plaintiff insists upon his right to explain the same in detail.) (Requests permission to tender testimony for the record.)\nThese issues were preserved for review, Mantz v. Follingstad, 505 P.2d 68 (Ct. App.) decided November 22, 1972, and they were properly challenged.\nThe above stipulation must be given a fair and reasonable construction in order to effect the intent of the parties. To seek the intention of the parties, the language should not be so construed as to give it the effect of an admission of a fact obviously intended to be controverted. Neither should it be so construed as to constitute a waiver of a right not plainly intended to be relinquished. Alldredge v. Alldredge, 20 N.M. 472, 151 P. 311 (1915); In re Quantius\u2019 Will, 58 N.M. 807, 277 P. 2d 306 (1954); Griego v. Hogan, 71 N.M. 280, 377 P.2d 953 (1963); Southern Union Gas Co. v. Cantrell, 57 N.M. 612, 261 P.2d 645 (1953). Compare, Caranta v. Pioneer Home Improvements, Inc., 81 N.M. 393, 467 P.2d 719 (1970).\nIn Atchison, Topeka and Santa Fe Railway Company v. Rodgers, 16 N.M. 120, 113 P. 805 (1911), a stipulation was entered into by the parties \u201c . . that the paper hereto attached is an exact copy of the instrument in writing, . . . and that the said contract, Exhibit A, may be used in evidence in this case the same as if the representatives of the defendant, . . ., were here present and testified to the fact of the signing of said instrument in writing by said parties.\u2019 \u201d\nThe court said:\nThe circumstances surrounding the execution of this stipulation, and, indeed, its very terms, show that it was intended to \u2022stipulate only to the genuineness of the instrument and its use by plaintiff for transportation, thus relieving defendant from the necessity of bringing to the trial the two witnesses named in it. It would be a strange and utterly unreasonable construction of this agreement to hold that the plaintiff assented thereby to the validity of the contract as limiting his recovery and thus practically stipulating away his whole case. While stipulations fairly made between counsel ought to be enforced, they are not to be given effect beyond their terms.\nWe believe the same legal principle applies to the instant case.\nThe defendant introduced the stipulation and accident report in evidence. The stipulation did not state the attendant facts and circumstances surrounding the execution and initialing of the report.\nOn November 8, 1971, a month before the order was entered, plaintiff filed an affidavit in response to defendant\u2019s motion for summary judgment in which he explained the attendant circumstances. He attached an executed copy of the.accident report with a portion \u201cblanked out.\u201d The portion \u201cblanked out\u201d was the claimed version of the facts of the accident written in by the person procuring the report. Plaintiff insisted on his right to explain this portion of the accident report with testimony in support thereof.\nPlaintiff had this right to explain to the jury his recollection of the facts and circumstances surrounding the execution and initialing of the accident report. The validity or correctness of the report would then become an issue for the jury to determine.\nThe sole fact stipulated was that either party, if he desired, could introduce plaintiff\u2019s accident report in evidence without objection. There was no provision that the accident report, if introduced in evidence, was a true, correct and voluntary admission of all the facts set forth therein. There was no language that the accident report could be introduced in evidence with such limitations and restrictions that plaintiff could not correct or explain its contents. We find nothing to indicate that plaintiff intended to waive his rights or that he was guilty of conduct, oral or written, which would give rise to estoppel. Certainly, plaintiff did not so stipulate.\nThe trial court erred in its order in which it estopped plaintiff from the right of explanation of the accident report or its correctness.\n(2) Defendant Cannot Introduce in Evidence her Answers to Interrogatories Propounded by Plaintiff if Defendant was Unable to Attend and Testify Because of Illness Under the Circumstances of this case.\nOn August 16, 1971, defendant filed her answers to interrogatories propounded by plaintiff.\nOn January 17, 1972, the day before trial, the pre-trial order was executed by court and counsel. Under the subject of \u201cIDENTIFICATION OF WITNESSES,\u201d plaintiff stated:\nMrs. Lavon Mary Measday, Deming, New Mexico, (Adverse witness, under rule 43(b), in person and/or by interrogatories).\nDefendant stated:\nMrs. Lavon Measday, Deming, New Mexico.\nNo statement was made under \u201cIDENTIFICATION OF WITNESSES\u201d or \u201cUNUSUAL QUESTIONS OF EVIDENCE,\u201d that defendant was ill and would seek to use her answers to interrogatories as her only evidence to establish her defense.\nOn the morning of trial, plaintiff was advised that defendant was ill and would not appear to testify, but defendant did not request a continuance. Defendant\u2019s physician submitted a letter to the trial court that defendant was under his \u201ccare for treatment of a long-standing disease condition which has some psychological and emotional aspects,\u201d [Emphasis added] and that she should not appear in court, but if she does, she should not be expected to testify.\nDefendant\u2019s attorney offered in evidence defendant\u2019s answers to interrogatories propounded by plaintiff. Plaintiff objected because it was not mentioned, presumably in the pre-trial order, and interrogatories cannot be self-serving declarations. The objection was overruled.\nRule 33 of the Rules of Civil Procedure [\u00a7 21-1-1(33), N.M.S.A.1953 (Repl. Vol. 4)] provides in part that \u201cthe answers maybe used to the same extent as provided in Rule 26(d) for the use of the deposition of a party.\u201d\nRule 26(d) [\u00a7 21-1-1(26) (d), N.M.S.A. 1953 (Repl. Vol. 4)] provides in part:\nAt the trial . . ., any part or all of a deposition, so far as admissible under the rules of evidence, may be used against any party who was present or represented at the taking of the deposition . . ., in accordance with any one of the following provisions:\nHi \u2021 # H\u00ed H* H*\n(3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: ... 3, that the witness is unable to attend or testify because of . . sickness, infirmity, . . .; 5, upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposi-, tion to be used. [Emphasis added]\nThe trial court heard no testimony and made no findings.\nThis is a matter of first impression in New Mexico. Effective July 1, 1970, Rules 26 and 33 of the Federal Rules of Civil Procedure were amended, but no substantive change occurred in the rules applicable to the question under consideration. The New Mexico Rules have not been amended. The issue yet remains whether under \u201crules of evidence,\u201d the person interrogated may use his answers to interrogatories to establish his defense \u2014to have his day in court.\nIt is generally held in federal and state courts that answers to interrogatories are inadmissible if offered on behalf of the party making answers, who does not attend or testify, because answers are self-serving declarations not subject to cross-examination. Callaway v. Perdue, 238 Ark. 652, 385 S.W.2d 4 (1965), 13 A.L.R.3d 1300; Great Plains Supply Co. v. Mobil Oil Company, 172 N.W.2d 241 (N.D.1969); Rosenthal v. Poland, 337 F.Supp. 1161 (U.S.D.C.N.Y.1972); American Colonial Insurance Company v. Mabry, 245 Ark. 288, 432 S.W.2d 15 (1968); In re Estate of Horman, 265 Cal.App.2d 796, 71 Cal.Rptr. 780 (1968); Giesler v. Berman, 6 Cal.App.3d 919, 86 Cal.Rptr. 205 (1970); Haskell Plumbing & Heating Co. v. Weeks, 237 F.2d 263, 16 Alaska 436 (9th Cir.1956). Annot. 13 A.L.R.3d 1312; 23 Am.Jur.2d Depositions and Discovery, \u00a7 292 ; 4A Moore\u2019s Federal Practice, \u00a7 33.29.\nThe basic reason for the rule is that answers to interrogatories are no more than affidavits of interested persons containing self-serving facts. In the absence of statutory permission, an affidavit is not competent evidence. In re Estate of Horman, supra. See McKnight v. El Paso Brick Co., 16 N.M. 721, 120 P. 694 (1911), Ann.Cas.1912D, 1309, rev. on other grounds, 233 U.S. 250, 34 S.Ct. 498, 58 L.Ed. 943, L.R.A.1915A 113; if this practice were approved, it would discourage the use of discovery procedures and thwart the purpose of the rules. In re Estate of Horman, supra.\nOn the other side of the fence, Treharne v. Callahan, 426 F.2d 58 (3rd Cir.1970), relied on by the defendant, puts admissibility of answers to written interrogatories within the- discretion of the trial court; that the loss of plaintiff\u2019s cross-examination must be weighed against the loss of defendant\u2019s day in court. However, the court said:\nWe emphasize that all we decide is that Rule 43 [see, \u00a7 21-1-1(43), N.M.S. A.1953 (Repl. Vol. 4)] permits the use here of the established equity rule that in case of death of a witness prior to cross-examination the district judge is permitted to exercise discretion as to whether to admit the testimony given. [Emphasis added]\nIt is interesting to note that the Court of Appeals, nevertheless, granted plaintiff a new trial because it was fundamental error not to charge the jury with a cautionary instruction concerning lack of cross-examination. If this rule were followed, plaintiff, in the instant case, would be entitled to a new trial.\nThe view of Rule 43, supra, applicable to this case, is stated in Ennen v. Southwest Potash Company, 65 N.M. 307, 336 P.2d 1062 (1959). The court said:\nIt would not require the citation of authority to support the proposition that a witness may not give testimony in a cause unless he is placed under oath and the other party is given an opportunity to cross-examine him. Counsel cite 1953 Comp., \u00a7 21-1-1(43), reading:\n\u201cIn all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by these rules * *\nSee, International M. & C. Corp. v. Employment Sec. Com\u2019n, 78 N.M. 272, 430 P.2d 769 (1967).\nA party who uses Rule 33, supra, is not bound the day of trial by the opposite party\u2019s answers to written interrogatories.\nRule 26(d), supra, contemplates- examination and cross-examination of the witness. It was never intended to apply to discovery procedures used by a party to search for information.\nWhen Rules 26(d), 33 and 43, supra, are analyzed, logic and justice dictate that answers to written interrogatories may be used by a party against the party who made the answers, or admissions in those answers-may be used against the party answering. The answers cannot be used by the party making them to establish an affirmative claim or defense because they are not subject to cross-examination. Confrontation and cross-examination are basic ingredients of a fair trial. Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L. Ed.2d 1377 (1959). It is a valuable right and cannot be so restricted as to wholly deprive a party of the opportunity to test the credibility of a witness. State v. Talamante, 50 N.M. 6, 165 P.2d 812 (1946).\nThe trial court erred in admitting in evidence defendant\u2019s answers to interrogatories.\n(3) A Deposition, not Signed by the Witness Deposed, is hot Admissible in Evidence Unless Signature is Waived. \u25a0.\nDefendant served plaintiff with notice of the taking of Dr. Louis Breck\u2019s deposition in El Paso, Texas, on September 30, 1971. In lieu of appearance at the deposition, plaintiff submitted 40 written interrogatories to be answered by Dr. Breck under Rule 30(c) [\u00a7 21-1-1(30) (c), N.M.S.A. 1953 (Repl. Vol. 4)].\nIn the absence of plaintiff and his attorney, Dr. Breck waived his signature to the transcribed deposition before defendant\u2019s oral examination began. At the conclusion of the answers to written interrogatories, Dr. Breck waived presentation of the transcript for reading and signature.\nAt the time of taking the deposition of Dr. Baxter, attorneys for the parties stipulated that reading and signature were waived. Plaintiff\u2019s attorney refused such stipulation for the deposition of Dr. Feil. Attorneys for both parties were familiar with the rules requiring signature and waiver thereof by stipulation.\nIn the pre-trial order executed the day before trial, defendant identified Dr. Breck as a witness, but no mention was made of use of the deposition. Plaintiff\u2019s attorney stated that during the pre-trial conference, held on the day before trial, the envelope which contained Breck\u2019s deposition was opened, and that night it was learned that the deposition was not signed.\nThe following appears in the record. It evidently occurred at the commencement of the trial.\nCOURT: Let\u2019s see, is the Defendant going to have all the witnesses listed here testify?\nMR. TRIVIZ: We agreed by stipulation to the deposition of Doctor Fiel [sic], Doctor Breck\u2019s deposition may be read.\nMR. MARTIN: Doctor Breck\u2019s deposition, when it is offered, Your Honor, we will object to it being offered now. We will object because there is a failure to comply with the rules of procedure in that the deposition is not signed by the witness and there is no waiver or stipulation waiving the witness\u2019 signature on file in this cause. The rules of civil procedure require this before it\u2019s admissible. [Emphasis added]\nThe trial court overruled the objection. It agreed that the rule requires the signature but because plaintiff did not buy a copy of the deposition and ask to open it up and look at it within the last six months, the objections were overruled. The deposition of Dr. Breck was read in its entirety over the objection of plaintiff\u2019s attorney.\nThis is a matter of first impression in New Mexico.\nRule 30(e) [\u00a7 21-1-1(30) (e), N.M.S.A. 1953 (Repl. Vol. 4)] reads in part as follows:\nWhen the testimony is fully transcribed the deposition shall be submitted to the witness for examination and shall be read to or by him, unless such examination and reading are waived by the witness and by the parties. The deposition shall \u25a0 then be signed by the witness, unless the parties by stipulation waive the signing or the witness is ill or cannot be found or refuses to sign. If the deposition is not signed by the witness, the officer shall sign it and state on the record the fact of the waiver or of the illness or absence of the witness or the fact of the refusal to sign together with the reason, if any, given therefor; and the deposition may then be used as fully as though signed, unless on motion to suppress under Rule 32(d) the court holds that the reasons given for the refusal to sign require rejection of the deposition in whole or in part. [Emphasis added]\nRule 32(d) [\u00a7 21-1-1(32) (d), N.M.S.A. 1953 (Repl. Vol. 4) ] reads as follows:\nErrors and irregularities in the manner in which the testimony is transcribed or the deposition is prepared, signed, certified, sealed, endorsed, transmitted, filed, or otherwise dealt with by the officer under Rules 30 and 31, are waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is, or with due diligence might have been, ascertained. [Emphasis added]\nRule 26(g) [\u00a7 21-1-1(26) (g), N.M.S.A. 1953 (Repl. Vol. 4)] provides in part:\nThe officer taking such testimony shall administer the proper oath to each witness, shall cause the testimony to be reduced to writing and signed by the witness, unless such signature is expressly waived by stipulation in writing filed in the case, . . . [Emphasis added]\nWhere the word \u201cshall\u201d is used in Rules 30(e) and 26(g), supra, it is mandatory. Section 1-2-2(I), N.M.S.A.1953 (Repl. Vol. 1); Voorheis v. HawthorneMichaels Co., 151 Cal.App.2d 688, 312 P.2d 51 (1957). The rule requires signing unless signature is waived or the reasons for no signature are stated as provided in the rule.\nThe objections made to the use of Dr. Breck\u2019s deposition were made with reasonable promptness and due diligence within the meaning of Rule 32(d), supra. Plaintiff had no duty before trial to take steps to open the deposition and inspect it. Tuttle v. Tomasino, 336 S.W.2d 683 (Mo.1960); In re Fite, 285 Ala. 666; 235 So.2d 809 (1970); Bernstein v. Brenner, 51 F.R.D. 9 (D.C.1970). See, Valdez v. United States, 326 F.2d 598 (9th Cir.1963).\nDepositions are not admissible in evidence where the witness has not signed the deposition and the signature of the witness has not been waived by the party objecting to the deposition, or the provisions for use of the deposition where it is not signed have been met. Tuttle v. Tomasino, supra; In re Fite, supra; Smith v. Insurance Company of North America, 30 F.R.D. 534 (M.D.Tenn.1962); Mortensen v. Honduras Shipping Company, 18 F.R.D. 510 (S.D.N. Y.1955); Porter v. Seas Shipping Company, 20 F.R.D. 108 (S.D.N.Y.1956). See, Moore v. Phillips Petroleum Co., 36 N.M. 153, 9 P.2d 692 (1932). Compare, Bernstein v. Brenner, supra, and Bankers Multiple Line Insurance Co. v. Gordon, 422 S.W.2d 244 (Tex.Civ.App.1967), where a motion to suppress was filed before trial. Nor does mere physical presence alone of opposing counsel constitute a waiver of signature. Bernstein v. Brenner, supra. Here, the attorney for plaintiff was not present at the taking of the deposition.\nWe find nothing of record that indicates that the parties by stipulation waived the signature of Dr. Breck.\nThe trial court erred in admitting the deposition in evidence because signature was not waived and because the provisions of the rule for use of a deposition in the absence of signature have not been shown to exist.\nReversed.\nIt is so ordered.\nWOOD, C. J., and HERNANDEZ, J., concur.", "type": "majority", "author": "SUTIN, Judge." } ], "attorneys": [ "James T. Martin, Jr., William L. Lutz, Martin & Martin, John A. Anderson, Las Cruces, for plaintiff-appellant.", "Edward E. Triviz, Las Cruces, for defendant-appellee." ], "corrections": "", "head_matter": "508 P.2d 1317\nLacy CRABTREE, Plaintiff-Appellant, v. Lavon Mary MEASDAY, Defendant-Appellee.\nNo. 990.\nCourt of Appeals of Now Mexico.\nJan. 26, 1973.\nRehearing Denied Feb. 20, 1973.\nCertiorari Denied March 20, 1973.\nJames T. Martin, Jr., William L. Lutz, Martin & Martin, John A. Anderson, Las Cruces, for plaintiff-appellant.\nEdward E. Triviz, Las Cruces, for defendant-appellee." }, "file_name": "0020-01", "first_page_order": 82, "last_page_order": 89 }