{ "id": 2828404, "name": "Hattie M. BOULDEN, Plaintiff-Appellant, v. Terry L. BRITTON and Kenneth L. Britton, d/b/a Big Red Tool Company, Defendants-Appellees", "name_abbreviation": "Boulden v. Britton", "decision_date": "1974-09-18", "docket_number": "No. 1362", "first_page": "775", "last_page": "778", "citations": [ { "type": "official", "cite": "86 N.M. 775" }, { "type": "parallel", "cite": "527 P.2d 1087" } ], "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": "78 N.M. 53", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5325724 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/78/0053-01" ] }, { "cite": "89 P. 256", "category": "reporters:state_regional", "reporter": "P.", "year": 1907, "opinion_index": 0 }, { "cite": "14 N.M. 91", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 204482 ], "year": 1907, "opinion_index": 0, "case_paths": [ "/nm/14/0091-01" ] }, { "cite": "84 N.M. 222", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2764611 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/84/0222-01" ] }, { "cite": "175 P. 714", "category": "reporters:state_regional", "reporter": "P.", "year": 1918, "opinion_index": 0 }, { "cite": "24 N.M. 666", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8513202 ], "year": 1918, "opinion_index": 0, "case_paths": [ "/nm/24/0666-01" ] }, { "cite": "191 F.2d 86", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 478070 ], "year": 1951, "opinion_index": 0, "case_paths": [ "/f2d/191/0086-01" ] }, { "cite": "284 F.2d 495", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2006209 ], "year": 1960, "opinion_index": 0, "case_paths": [ "/f2d/284/0495-01" ] }, { "cite": "308 F.2d 355", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 200961 ], "year": 1962, "opinion_index": 0, "case_paths": [ "/f2d/308/0355-01" ] }, { "cite": "62 N.M. 239", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2714243 ], "weight": 2, "year": 1957, "opinion_index": 0, "case_paths": [ "/nm/62/0239-01" ] }, { "cite": "84 N.M. 125", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2768111 ], "weight": 2, "year": 1972, "opinion_index": 0, "case_paths": [ "/nm/84/0125-01" ] }, { "cite": "28 U.S.C. \u00a7 1732", "category": "laws:leg_statute", "reporter": "U.S.C.", "opinion_index": 0 } ], "analysis": { "cardinality": 563, "char_count": 10010, "ocr_confidence": 0.807, "pagerank": { "raw": 6.520133521512098e-08, "percentile": 0.40057895267253035 }, "sha256": "80cd4d5051b9df0d6aee36b621a448b5493749bd21370a8682c2512bc17c1001", "simhash": "1:53c4cb46332998ce", "word_count": 1620 }, "last_updated": "2023-07-14T22:44:27.328252+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WOOD, C. J., and LOPEZ, J., concur." ], "parties": [ "Hattie M. BOULDEN, Plaintiff-Appellant, v. Terry L. BRITTON and Kenneth L. Britton, d/b/a Big Red Tool Company, Defendants-Appellees." ], "opinions": [ { "text": "OPINION\nHENDLEY, Judge.\nPlaintiff appeals from a judgment for defendants based upon the verdict of a jury in a personal injury action arising out of a vehicle collision in 1971. Plaintiff asserts two points for reversal: (1) admission of hospital records; and, (2) pre-accident condition instruction. We affirm as to (1) and reverse on (2).\nHospital Records\nDuring the course of the trial defendant offered, over plaintiff\u2019s objection, Presbyterian Hospital records, through the assistant medical record administrator, concerning three hospital admissions of plaintiff for the years 1962, 1969 and 1971. The assistant administrator testified the records were kept in the usual course of business and that it was the hospital\u2019s regular course of business to make such a record. Defendant offered the record for \u201cpurely impeachment\u201d purposes. The trial court admitted them subject to plaintiff\u2019s right of impeachment. Plaintiff had no question as to their authenticity but only as to their admissibility. Plaintiff did not request a limiting instruction.\nThe present case involved injuries to plaintiff\u2019s back. Plaintiff testified to a previous hospitalization in Presbyterian Hospital under the care of Dr. Johnson. She testified this hospitalization was for a back problem which she characterized as a pulled muscle.\nThe records are contained in a folder with a \u201cMaster Summary Sheet\u201d showing the dates admitted, discharged, and diagnosis. The first entry \u201c5-13-62\u201d to \u201c5-21-62\u201d shows under diagnosis \u201cHerniated nucleus pulposus.\u201d The only record in the folder relating to this is a copy of the \u201cMedical Record Face Sheet.\u201d This shows plaintiff had an admission diagnosis of \u201cPos. Slipped Disc\u201d and a final diagnosis of \u201cHerniated nucleus pulposus.\u201d There was no indication of what level of the spine the herniation existed. The face sheet was signed by Doctor M. P. Johnson, the admitting physician.\nThe issue is whether the face sheet of a hospital record which reflects the admitting and the final diagnosis in 1962 was admissible in evidence for impeachment purposes.\nPlaintiff does not contend that the hospital records contained in the exhibit are not regular business entries. It is plaintiff\u2019s position that the face sheet was incompetent evidence because it does not meet all tests of admissibility.\nSection 20-2-12, N.M.S.A.1953 (Repl. Vol. 1970) which was in effect at the time of the cause and subsequently repealed by Laws 1973, ch. 223, \u00a7 2 states:\n\u201c . . . In any court of this state, any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event, shall be admissible as evidence of said act, transaction, occurrence, or event, if it shall appear that it was made in the regular course of any business, and that it was the regular course of business to make such memorandum or record at the time of such act, transaction, occurrence, or event or within a reasonable time thereafter. All other circumstances of the making of such writing or record, including legal or personal knowledge by the entrant or maker, may be shown to affect its weight, but they shall not affect its admissibility. The term \u2018business\u2019 shall include business, profession, occupation and calling of every kind.\u201d [Emphasis added].\nThis section is almost an exact duplicate of the federal act. See 28 U.S.C. \u00a7 1732.\nHere the issue is not that the face sheet was being offered for the truth of the matter asserted. It was being offered for \u201cpurely impeachment\u201d purposes. The factual predicate for the admission into evidence of the records was established by plaintiff on cross-examination when the following questions were asked and answered in relation to a fall plaintiff had:\n\u201cO And you were hospitalized then with a back injury ?\n\u201cA Pulled muscle of the back.\n\u201cO You were hospitalized?\n\u201cA Yes, sir.\n\u201cQ In the Presbyterian Hospital in Albuquerque ?\n\u201cA Yes, sir.\n\u201cQ Who was your doctor then ?\n\u201cA I believe it was Doctor Johnson.\u201d\nA hospital record, when properly made in the regular course of business and for which it was the regular course of business for the hospital to make such a record, is admissible. In Re Will of Callaway, 84 N.M. 125, 500 P.2d 410 (1972); Sapp v. Atlas Building Products Company, 62 N.M. 239, 308 P.2d 213 (1957). Once the record has met these requirements other circumstances may be shown to affect its weight, \u201c . . . but they shall not affect its admissibility. . . . \u201d Section 20-2-12, supra. This is the view the trial court took when it stated that these matters go to the weight of the evidence and not admissibility. See Thomas v. Hogan, 308 F.2d 355 (4th Cir. 1962); Glawe v. Rulon, 284 F.2d 495 (8th Cir. 1960); Korte v. New York, N. H. & H. R. Co., 191 F.2d 86 (2d Cir. 1951); McCormick on Evidence \u00a7 290 (1954).\nFurther, that the statements are a conclusion (diagnosis) is of no moment. Plaintiff herself testified that she was hospitalized by Dr. Johnson. The record indicates it was for a period of some nine days. Plaintiff stated she was hospitalized for a \u201c[p]ulled muscle of the back.\u201d The face sheet states differently. The fact that the record may have been inadmissible for one purpose does not render it inadmissible for another purpose. See Moore v. Mazon Estate, 24 N.M. 666, 175 P. 714 (1918). Plaintiff having established the factual predicate of the hospital admission under Dr. Johnson\u2019s care could be impeached by the properly kept business records of the hospital even though the records may not have been admissible for the truth of the matter asserted therein, a point we do not decide.\nInstruction\nPlaintiff\u2019s requested instruction on damages was identical to that given by the court (N.M.U.J.I. 14.2) except for an additional paragraph in the elements of damage part which stated:\n\u201c(2) The aggravation of any pre-existing ailment or condition, but you may allow damages only for the aggravation itself, and not for the pre-existing ailment or condition. A wrongdoer is said to \u2018take his victim as he finds him,\u2019 and the wrongdoer is liable for all harm which follows from an injury negligently caused. This is true where the injured person was suffering at the time of injury from a condition which aggravated the consequences of such injury and made him susceptible to greater damage.\u201d [Emphasized part is N.M.U.J.I. 14.4].\nN.M.U.J.I. 14.4 as written was not requested nor was it given.\nPlaintiff\u2019s objection, to the court\u2019s refusal to give the requested instruction with the additional paragraph (2), was as follows :\n\u201c . . . Judge, we object to the Court\u2019s denial of Plaintiff\u2019s Requested Instruction No. 1 as it pertains to Paragraph 2, which we first submitted in its entirety as written and introduced into the record, and as we have alternately submitted it by removing the first three lines of Paragraph 2, which read, \u2018The aggravation of any pre-existing aliment [sic] or condition, but you may allow damages only for the aggravation itself, and not for the pre-existing ailment or condition.\u2019 \u201d\nThe \u201cDirections for Use\u201d to N.M.U.J.I. 14.4 states:\n\u201cWhen the evidence shows that the plaintiff was suffering from a pre-existing condition and the same has been aggravated as a result of the injury and the extent of the aggravation is proven, then this instruction is proper. This is to be inserted in Instruction UJI 14.2.\u201d\nA party is entitled to have the jury instructed on all correct legal theories of his case which are supported by substantial evidence. LaBarge v. Stewart, 84 N.M. 222, 501 P.2d 666 (Ct.App.1972). N.M.U.J.I. shall be used unless under the facts or circumstances of the case the N. M.U.J.I. would be erroneous or improper. Section 21-1-1 (51) (1) (c), N.M.S.A.1953 (Repl.Vol.1970).\nPlaintiff contends that the second sentence of her requested instruction is supported by City of Roswell v. Davenport, 14 N.M. 91, 89 P. 256 (1907) which relates to an aggravation of a pre-existing condition. We agree.\nThe first paragraph of N.M.U.J.I. 14.2 deals with damages resulting from the alleged negligence of defendant. The medical evidence is that plaintiff had an abnormality from birth. This abnormality was that three nerves came out of a common sleeve. This abnormality existed at the level where a herniated disc was found during surgery. There is evidence that a normal disc would not have given way under the circumstances of the accident, but because of the abnormality, the collision was the \u201clast straw\u201d which caused the disc to herniate. This is evidence of a condition which aggravated the consequences of plaintiff\u2019s injury and made her susceptible to greater damage.\nWe do not concern ourselves with whether plaintiff was entitled to her original request combining N.M.U.J.I. 14.4 with the holding in Davenport, supra. Plaintiff\u2019s alternative request was based on the Davenport holding, and did not include N. M.U.J.I. 14.4. There is evidence to support this alternative. No instruction was given covering aggravated consequences resulting from a pre-existing abnormality. No argument is made that an instruction contained within N.M.U.J.I. would cover this aspect of damages, and accordingly, has not been considered.\nFailure to instruct on a theory supported by substantial evidence is reversible error. Stephens v. Dulaney, 78 N.M. 53, 428 P.2d 27 (1967). Plaintiff was entitled to an instruction based on City of Roswell v. Davenport, supra.\nReversed and remanded for a new trial for plaintiff Hattie Boulden.\nIt is so ordered.\nWOOD, C. J., and LOPEZ, J., concur.", "type": "majority", "author": "HENDLEY, Judge." } ], "attorneys": [ "William G. Gilstrap, Richard E. Ransom, P. A., Smith, Ransom & Gilstrap Law Offices, Albuquerque, for plaintiff-appellant.", "Daniel C. Lili, Farlow & Lili, Albuquerque, for defendants-appellees." ], "corrections": "", "head_matter": "527 P.2d 1087\nHattie M. BOULDEN, Plaintiff-Appellant, v. Terry L. BRITTON and Kenneth L. Britton, d/b/a Big Red Tool Company, Defendants-Appellees.\nNo. 1362.\nCourt of Appeals of New Mexico.\nSept. 18, 1974.\nRehearing Denied Oct. 2, 1974.\nCertiorari Granted Nov. 5, 1974.\nWilliam G. Gilstrap, Richard E. Ransom, P. A., Smith, Ransom & Gilstrap Law Offices, Albuquerque, for plaintiff-appellant.\nDaniel C. Lili, Farlow & Lili, Albuquerque, for defendants-appellees." }, "file_name": "0775-01", "first_page_order": 805, "last_page_order": 808 }