N.M. R. Civ. P. Dist. Ct. 1-051
N.M. R. Civ. P. Dist. Ct. 1-051
ANNOTATIONS The 1999 amendment, effective August 27, 1999, in Paragraph G, added the third sentence in which a single set of instructions shall be prepared and agreed upon by both parties.
For preserving questions for review, and scope of review, see Rules 1-046 and 12-216 NMRA. Compiler's notes. - This rule is deemed to have superseded Trial Court Rules 70-101, 70-102, 70-104 to 70-108, derived from 70-101, 70-102, 70-104 to 70-108, C.S. 1929, which were substantially the same. I. GENERAL CONSIDERATION. Jury presumed charged according to law. - Where error complained of was that the court gave its instructions orally, and the record on its face did not sustain the error, and there was no evidence aliunde, the legal presumption was that the charge of the court was delivered according to law. Kent v. Favor, 1885-NMSC-012, 3 N.M. (Gild.) 347, 5 P. 470 (decided under former law). Duty of jury. - The jury must judge the weight of the testimony and the credibility of the witnesses. Kirchner v. Laughlin, 1888-NMSC-007, 4 N.M. (Gild.) 386, 17 P. 132 (decided under former law). Generally. - Where no rights were sacrificed or prejudiced by failure to number instructions as required by Comp. Laws 1897, §2998 (70-108, C.S. 1929, (now superseded by this rule)), it was not such error as would justify a reversal of the judgment. Territory v. Cordova, 1902-NMSC-012, 11 N.M. 367, 68 P. 919; Miller v. Preston, 1888-NMSC-008, 4 N.M. (Gild.) 396, 17 P. 565 (both cases decided under former law). Where erasure or interlineation on instructions handed to jury cannot be considered to be prejudicial, it is not such an irregularity as to justify a reversal. Daly v. Bernstein, 1892-NMSC-006, 6 N.M. 380, 28 P. 764; Denver & R.G. Ry. v. Harris, 1884-NMSC-009, 3 N.M. (Gild.) 114, 2 P. 369, aff'd, 122 U.S. 597, 7 S. Ct. 1286, 30 L. Ed. 1146 (1887) (both cases decided under former law). An instruction is properly refused which would in effect instruct the jury that plaintiff had established his claim, where evidence was conflicting. C.W. Kettering Mercantile Co. v. Sheppard, 1914-NMSC-066, 19 N.M. 330, 142 P. 1128 (decided under former law). II. DUTY TO INSTRUCT. A. IN GENERAL. Instructions considered in entirety. - Considering the instructions as a whole, and in the absence of proper objection, and reading each in the light of all of the others, the court held that the trial court did not err in instructing the jury, as the instructions given adequately cover the law applicable in the instant case. Williams v. Vandenhoven, 1971-NMSC-029, 82 N.M. 352, 482 P.2d 55. It is the duty of the jury to read and consider the instructions as a whole. AT & T Co. v. Walker, 1967-NMSC-049, 77 N.M. 755, 427 P.2d 267. A reviewing court also examines and considers the instructions as a whole. In considering instructions as a whole, particular expressions should be considered as qualified by the context and other instructions. AT & T Co. v. Walker, 1967-NMSC-049, 77 N.M. 755, 427 P.2d 267. The instructions are to be considered as a whole and if they fairly present the law applicable to the issues, that is all that is required. Sturgeon v. Clark, 1961-NMSC-125, 69 N.M. 132, 364 P.2d 757. Instructions must be considered as a whole and, if the law is fairly presented by the whole, that is sufficient. Gerrard v. Harvey & Newman Drilling Co., 1955-NMSC-031, 59 N.M. 262, 282 P.2d 1105. If the entire charge of the court presents the law of the case fairly to the jury, it is sufficient. Kirchner v. Laughlin, 1892-NMSC-001, 6 N.M. 300, 28 P. 505; Torlina v. Trorlicht, 1889-NMSC-012, 5 N.M. 148, 21 P. 68, aff'd, 1891-NMSC-019, 6 N.M. 54, 27 P. 794 (both cases decided under former law). So each instruction need not stand alone. - Where instructions are read together, each need not, within its own limits, contain all elements of the case, if in the aggregate they fairly present the issues and the law applicable thereto. Demers v. Gerety, 1973-NMCA-134, 85 N.M. 641, 515 P.2d 645, rev'd on other grounds, 1974-NMSC-010, 86 N.M. 141, 520 P.2d 869. Refusal to give defendant's requested instruction was not error where the court otherwise correctly instructed on the point of law involved. Landers v. Atchison, T. & S.F. Ry., 1963 -NMSC-162, 73 N.M. 131, 386 P.2d 46. Jury to be instructed clearly and simply on issues. - The court must determine from an examination of the pleadings what the issues are, and so state them to the jury as to be readily comprehended, and setting out the pleadings in lieu thereof will not be tolerated, unless manifestly without prejudice. We may add that such issues cannot be too clearly and explicitly stated, and that terseness and brevity will uniformly add emphasis. Haynes v. Hockenhull, 1964-NMSC-087, 74 N.M. 329, 393 P.2d 444. Where the allegations of the pleading as incorporated therein were not short and concise but long and ambiguous, not plain and simple but intricate and complicated, the trial court committed reversible error by embodying, practically verbatim into the first instruction, all of the pleadings hereinbefore set out, and the case should be reversed and remanded for a new trial. Haynes v. Hockenhull, 1964-NMSC-087, 74 N.M. 329, 393 P.2d 444. Trial courts need not give erroneous instructions. Kinney v. Luther, 1982-NMSC-026, 97 N.M. 475, 641 P.2d 506. B. ALLOWABLE INSTRUCTIONS. When party entitled to instructions. - A party is entitled to an instruction on his theory of the case if such a theory is pleaded and supported by the evidence. Moreover, if a theory is pleaded and supported by the evidence, a refusal to instruct the jury on that theory constitutes reversible error. Conversely, if there is no evidence to support the theory, it would be reversible error to instruct on that theory. Garcia v. Barber's Super Mkts., Inc., 1969-NMCA-126, 81 N.M. 92, 463 P.2d 516. An instruction on a theory is properly given only if theory is pleaded or is tried by express or implied consent of the parties, and there is evidence supporting the theory. Davila v. Bodelson, 1985-NMCA-072, 103 N.M. 243, 704 P.2d 1119. At least instructions on fundamental law of case. - Both Subdivisions 1(a) and 1(g) (see now Paragraphs B and I) should be read together and must be reconciled by a holding that it is the duty of the court at every trial to give to the jury the fundamental law applicable to the facts in the case and that, unless waived by the parties, instructions to that extent at least must be given whether requested or not; and further that if incidental questions arise in the case, as almost always occurs in the trial of a case, the court need not instruct on such incidental questions unless request be made, in writing, before the jury retires. Gerrard v. Harvey & Newman Drilling Co., 1955-NMSC-034, 59 N.M. 262, 282 P.2d 1105. Supported by evidence. - It is reversible error not to have the jury instructed upon all correct legal theories of a case which are supported by evidence. Romero v. Melbourne, 1977-NMCA-015, 90 N.M. 169, 561 P.2d 31, cert. denied, 90 N.M. 254, 561 P.2d 1347. A party is entitled to have the jury instructed on all correct legal theories of his case which are supported by substantial evidence. Crawford v. American Employers' Ins. Co., 1974-NMCA-042, 86 N.M. 612, 526 P.2d 206, rev'd on other grounds, 1975-NMSC-020, 87 N.M. 375, 533 P.2d 1203. It is the trial court's duty to instruct the jury on the law applicable to issues of fact raised by the proof. Hill v. Burnworth, 1973-NMCA-135, 85 N.M. 615, 514 P.2d 1312. There should be a genuine basis for giving the instruction on unavoidable accident such as "unpreventable mechanical failure" and such must be coupled with circumstances which present a fair issue of whether this failure of the driver to anticipate or sooner guard against the danger or to avoid it, is consistent with a conclusion of the exercise of his due care. Goodman v. Venable, 1971-NMCA-031, 82 N.M. 450, 483 P.2d 505. A party is entitled to an instruction on his theory of the case upon which there is evidence. Ward v. Ray, 1967-NMSC-264, 78 N.M. 566, 434 P.2d 388. Where there was proof as to speed and manner of driving, it was proper for the jury to consider this along with all other evidence in determining if party was negligent. Lujan v. Reed, 1967-NMSC-262, 78 N.M. 556, 434 P.2d 378. A party is entitled to instructions on its theory of the case when there is evidence to support it in the record. Failure to submit such instructions to the jury constitutes reversible error. Adams v. United Steelworkers, 1982-NMSC-014, 97 N.M. 369, 640 P.2d 475. Law stated by court must be applicable to facts in issue as shown by the evidence. Flanary v. Transport Trucking Stop, 1968-NMCA-010, 78 N.M. 797, 438 P.2d 637. Pleaded. - The law in this jurisdiction supports the position that the jury must be instructed on defenses pleaded which are supported by evidence. Mills v. Southwest Bldrs., Inc., 1962-NMSC-115, 70 N.M. 407, 374 P.2d 289. It is prejudicial error to refuse to instruct specifically on a litigant's theory of the case, providing such theory is pleaded and there is evidence to support it. Hanks v. Walker, 1955-NMSC-093, 60 N.M. 166, 288 P.2d 699. In a jury trial a party is entitled to have his theory of the case submitted to the jury by specific instruction if that theory is both pleaded and supported by substantial evidence. Hanks v. Walker, 1955-NMSC-093, 60 N.M. 166, 288 P.2d 699. Each party is entitled to an instruction on his theory of the case if he has pled it and there is evidence upon which the theory might be supported. Mac Tyres, Inc. v. Vigil, 1979-NMSC-010, 92 N.M. 446, 589 P.2d 1037. Tried by express or implied consent. - An instruction is proper only if plaintiff pleads the theory or it is tried by express or implied consent. Rice v. Gideon, 1974-NMCA-050, 86 N.M. 560, 525 P.2d 920, cert. quashed, 87 N.M. 299, 532 P.2d 888. C. LIMITATIONS ON INSTRUCTIONS. No instructions on issues not pleaded. - An instruction on last clear chance was improper in a personal injury case where the doctrine was not pleaded. There was evidence in the record which would support certain elements thereof, but that evidence was also relevant to other issues and there was no evidence as to defendant's opportunity to avoid the accident once plaintiff was in a position of peril. Inferences from the evidence without affirmative evidence on the point were not enough to imply consent to try the issue, since the parties did not squarely recognize it as an issue in the case. Rice v. Gideon, 1974-NMCA-050, 86 N.M. 560, 525 P.2d 920, cert. quashed, 87 N.M. 299, 532 P.2d 888. Not supported by evidence. - Since there was no evidence to the effect that the plaintiff was contributorily negligent, or to the effect that a sudden emergency arose, instructions on these theories should not have been given; it is error to instruct on issues which are unsupported by the evidence or which present a false issue. Archibeque v. Homrich, 1975-NMSC-066, 88 N.M. 527, 543 P.2d 820. Where there was no testimony, expert or otherwise, which tended to show the extent, if any, to which plaintiff's injuries would have been mitigated had she been wearing her seat belt, although there was testimony to the effect that her injuries resulted from the striking of her head on the windshield, an instruction precluding recovery for any injuries which a seat belt could have prevented was properly refused because there was no evidence on which to base it. Selgado v. Commercial Whse. Co., 1974 -NMCA-093, 86 N.M. 633, 526 P.2d 430. Where the evidence would not have supported a finding that defendant had a clear chance, by the exercise of ordinary care, to avoid striking decedent, the refusal of the instruction as to him was not only proper but necessary. Lopez v. Maes, 1970-NMCA-084, 81 N.M. 693, 472 P.2d 658, cert. denied, 81 N.M. 721, 472 P.2d 984. In the absence of substantial evidence that driver's act in running over the body proximately caused the death, it was not error for the trial court to refuse the instruction on last clear chance as to this defendant. Lopez v. Maes, 1970-NMCA-084, 81 N.M. 693, 472 P.2d 658, cert. denied, 81 N.M. 721, 472 P.2d 984. It is error to instruct on a proposition of law not supported by the evidence, or which presents a false issue. State ex rel. State Hwy. Comm'n v. Atchison, T. & S.F. Ry., 1966 -NMSC-146, 76 N.M. 587, 417 P.2d 68. It is error to instruct on a legal proposition that is not within the issues in a case and on which there is present no competent evidence. Ryder v. Sandlin, 1962-NMSC-103, 70 N.M. 377, 374 P.2d 133. Where no question of notice to the defendant was raised in any way in the pleadings or the evidence, it was a mistake to give the jury any instruction about notice. Gerrard v. Harvey & Newman Drilling Co., 1955-NMSC-034, 59 N.M. 262, 282 P.2d 1105. An instruction on the issue of trespass is erroneous, where there is insufficient evidence to establish a trespass situation, where the victim of a dog bite had been invited to the defendant's premises. Aragon v. Brown, 1979-NMCA-142, 93 N.M. 646, 603 P.2d 1103. In an action for personal injuries sustained from a dog bite, where there is no evidence that the victim's possession or consumption of beer at the defendant's residence, in violation of former 60-10-16 NMSA 1978 (now see 60-7B-1.1 NMSA 1978), was in any way the proximate cause of his injuries, an instruction on the unlawfulness of giving beer to a minor is properly refused. Aragon v. Brown, 1979-NMCA-142, 93 N.M. 646, 603 P.2d 1103. Based on speculation and conjecture. - Testimony of defendant's expert as to how a one-car accident in which both driver and passenger were killed might have occurred, (e.g., that an insect could have been in the car, that cigarette ashes could have blown into the eyes of the driver, that an animal could have run out in front of the driver, etc.) was speculation and conjecture, and to base a jury instruction on speculation or conjecture was not proper; the interjection of a false issue and the giving of instructions not warranted by the evidence required a reversal. Archibeque v. Homrich, 1975-NMSC-066, 88 N.M. 527, 543 P.2d 820. Instructions to jury limited. - An instruction that plaintiff relied "in part" upon the doctrine of res ipsa loquitur was improper where the trial court only allowed one different theory to go to the jury. Archibeque v. Homrich, 1975-NMSC-066, 88 N.M. 527, 543 P.2d 820. False issue difficult to correct. - The jury having been misled by the submission of a false issue, the resulting prejudice may not be eliminated by giving of a general abstract instruction. Garcia v. Southern Pac. Co., 1968 -NMSC-085, 79 N.M. 269, 442 P.2d 581. A jury instruction that interjects a false issue into the trial is erroneous. - Where plaintiff made a claim under the Emergency Medical Treatment and Active Labor Act (EMTALA), a federal law that requires a hospital emergency department to provide an appropriate medical screening examination to any individual seeking emergency medical treatment and requires that any individual suffering from an emergency medical condition be stabilized before being discharged or transferred from the emergency department, an instruction to the jury that the function of the EMTALA is to prevent the denial of care based on the ability to pay was neither justified by evidence nor by theory and led to the interjection of a false issue into the trial, because the patients' ability to pay is not reflected in the language of the statute. The instruction misstated the law and was not relevant to the determination of whether an EMTALA violation occurred. Mikeska v. Las Cruces Reg'l Med. Ctr., 2016-NMCA-068, cert. denied. Jury instructions that confuse or mislead the jury are erroneous. - Where plaintiff made a claim under the Emergency Medical Treatment and Active Labor Act (EMTALA), a federal law that requires a hospital emergency department to provide an appropriate medical screening examination to any individual seeking emergency medical treatment and requires that any individual suffering from an emergency medical condition be stabilized before being discharged or transferred from the emergency department, instructing the jury to disregard evidence of medical malpractice or medical negligence on plaintiff's misdiagnosis was error, because under EMTALA, the jury is allowed to consider evidence of the misdiagnosis, but only to the extent, if any, that it applies to the issues of whether plaintiff received the appropriate medical screening examination, or whether defendant hospital failed to stabilize plaintiff before her discharge. The instructions created the potential for the jury to be confused and misled the jury concerning the evidence that they could properly consider. Mikeska v. Las Cruces Reg'l Med. Ctr., 2016-NMCA-068, cert. denied. D. ERROR. When incorrect instruction not reversible error. - A judgment will not be reversed by reason of an erroneous instruction, unless upon a consideration of the entire case, including the evidence, it shall appear that such error has resulted in a miscarriage of justice; usually there will be no cause for reversal unless the evidence indicates that without such error in the instructions the verdict probably would have been different from the verdict actually returned by the jury. Romero v. Melbourne, 1977-NMCA-015, 90 N.M. 169, 561 P.2d 31, cert. denied, 90 N.M. 254, 561 P.2d 1347. Since there was a conflict in the evidence as to the degree of injury of the plaintiffs and since there was evidence that much of their chiropractor's treatment may have been unnecessary and that he had a personal interest in prolonging the treatment, the jury had ample ground for deciding that the plaintiffs had suffered no compensable injuries as a result of the collision, and therefore, the inclusion of an erroneous instruction as to the contributory negligence of a passenger was harmless and did not require reversal. Romero v. Melbourne, 1977-NMCA-015, 90 N.M. 169, 561 P.2d 31, cert. denied, 90 N.M. 254, 561 P.2d 1347. Since the trial court correctly instructed the jury to deliberate the matter of liability before damages, and the jury did not find the necessary causal connection to establish any liability, any incorrect instructions on the question of damages did not constitute reversible error. Sandoval v. Cortez, 1975-NMCA-088, 88 N.M. 170, 538 P.2d 1192. If the jury has resolved the question of liability in favor of defendant, the failure to have given correct instructions on the question of damages does not constitute reversible error. Britton v. Boulden, 1975-NMSC-029, 87 N.M. 474, 535 P.2d 1325. Lack of instruction. - Where jury was not instructed to confine its comparisons to individual features or specific traits, it was not reversible error for the court to fail to so instruct the jury where no such request was made by either side. Glascock v. Anderson, 1972-NMSC-030, 83 N.M. 725, 497 P.2d 727, 55 A.L.R.3d 1079 (1972). Where the court has instructed the jury in the degree of care which a driver is required to exercise, and these instructions had not been objected to, it is not error requiring a reversal for the court to refuse to give an instruction on sudden emergency, where no proper instruction was tendered, even though defendants would have been entitled to the same if they had tendered a correct statement of the law in this regard. Montoya v. Winchell, 1961-NMSC-127, 69 N.M. 177, 364 P.2d 1041. Abstract instruction. - While abstract statements of rules of law, in no way connected with the issues and proof in a case, are not to be given, reversible error does not result if there is no prejudice, or the jury is not misled. Mills v. Southwest Bldrs., Inc., 1962-NMSC-115, 70 N.M. 407, 374 P.2d 289. Granting of negative instruction is not in itself reversible error especially where the negative language is primarily cautionary and is not contrary to law. Clinard v. Southern Pac. Co., 1970 -NMSC-093, 82 N.M. 55, 475 P.2d 321. Undue emphasis and repetition may cause reversible error in instructions. - Instructions, which unduly emphasize, by repetition or by singling out and making unduly prominent, any portion of the case or of the applicable law, should not be given, and if such instructions are given and the emphasis is of such nature that a party is prejudiced thereby, then such constitutes reversible error. Scott v. Brown, 1966-NMSC-135, 76 N.M. 501, 416 P.2d 516. Refusal to give a requested instruction in the form tendered is not error where another correct instruction on the same rule of law is in fact given. Apodaca v. Miller, 1968-NMSC-086, 79 N.M. 160, 441 P.2d 200. Instructions which are repetitious or which unduly emphasize certain portions of the case should not be given. State ex rel. State Hwy. Comm'n v. Atchison, T. & S.F. Ry., 1966 -NMSC-146, 76 N.M. 587, 417 P.2d 68. Erroneous and repetitious instruction. - Plaintiff cannot be heard to complain that the court failed to give her requested instruction, which was not only erroneous, but was repetitious of her prior requested instruction, which the court stated would be given and was given. Lopez v. Maes, 1970-NMCA-084, 81 N.M. 693, 472 P.2d 658, cert. denied, 81 N.M. 721, 472 P.2d 984. It is not error to refuse instructions which are incomplete, erroneous or repetitious. Goodman v. Venable, 1971-NMCA-031, 82 N.M. 450, 483 P.2d 505. III. ADMONITIONS TO JURY ON CONDUCT. Elements of admonition. - Under UJI 13-102, juries are given instructions concerning their province as the sole judges of the facts, their duty to follow the law as given them by the court, and that they must not select or single out any particular instruction, or portion thereof, but must consider all of the instructions, as a whole, in reaching their verdict. Scott v. Brown, 1966-NMSC-135, 76 N.M. 501, 416 P.2d 516. Showing of prejudice necessary for finding of reversible error. - Although Subdivision 1(b) (see now Paragraph C) is a mandatory direction to the trial court to give appropriate portions of UJI 13-102 near the outset of the trial, where no prejudice was shown as a result of failure to properly instruct the jury, or the complaining party did not reserve the omission for review, there was no reversible error. City of Albuquerque v. Ackerman, 1971-NMSC-032, 82 N.M. 360, 482 P.2d 63. Prejudice determined by facts of each case. - Whether an admonition by the court can cure possible prejudice arising out of an improper question is a matter that must be determined according to the facts and circumstances of each case; and asking defendant whether he had come to the city in order to take marijuana to another city when accompanied by proper admonitions, was held to be insufficiently prejudicial to give rise to a mistrial. State v. Garcia, 1968-NMSC-119, 79 N.M. 367, 443 P.2d 860. IV. USE OF UNIFORM JURY INSTRUCTIONS. Uniform Jury Instructions must be used, unless the court finds it to be erroneous or otherwise improper, and states into the record the reasons for not using it. A failure to do so constitutes reversible error. Chapin v. Rogers, 1969-NMCA-097, 80 N.M. 684, 459 P.2d 846. Reconciliation of former and current instructions. - Where a Uniform Jury Instruction is amended after the filing of a claim, the former version is applicable to the case to the extent it accurately reflects current New Mexico law; however, where there is conflict between the former UJI and current law, a trial court has the discretion to fashion a hybrid instruction that incorporates the former and current versions of the law. Brooks v. K-Mart Corp., 1998-NMSC-028, 125 N.M. 537, 964 P.2d 98. UJI Civ. 3.6 (see now UJI 13-304 ) is properly given in district court cases arising under Probate Code. Thorp v. Cash, 1981-NMCA-074, 97 N.M. 383, 640 P.2d 489. Giving general instruction is error where more specific instruction covers case. - It is error for the district court to give jury instructions on the issues of negligence and contributory negligence when the mandatory instruction states the entire law of liability and relief from liability in connection with dog-bite injuries. Aragon v. Brown, 1979-NMCA-142, 93 N.M. 646, 603 P.2d 1103. Court seeks slightest evidence of prejudice in nonuse. - In determining whether the failure to give a Uniform Jury Instruction is reversible error, the court would accept the slightest evidence of prejudice, with all doubt resolved in favor of the party claiming prejudice. De La O v. Bimbo's Restaurant, Inc., 1976-NMCA-115, 89 N.M. 800, 558 P.2d 69, cert. denied, 90 N.M. 7, 558 P.2d 619; Davila v. Bodelson, 1985-NMCA-072, 103 N.M. 243, 704 P.2d 1119. Submission of non-uniform instruction can result in reversible error. - Subdivision (D) (see now Paragraph D) alerts lawyers and district judges to the fact that the submission of non-uniform jury instructions to the jury can result in reversible error unless compliance therewith has occurred. Malczewski v. McReynolds Constr. Co., 1981 -NMCA-046, 96 N.M. 333, 630 P.2d 285. Under Paragraph D, published uniform jury instructions must be used unless under the facts or circumstances of the particular case they are erroneous or otherwise improper and the trial court states its reasons for refusing to use them. Deviation from required uniform jury instructions is reversible error if the appellant can show that he was prejudiced by the erroneous instruction. First Nat'l Bank v. Sanchez, 1991-NMSC-065, 112 N.M. 317, 815 P.2d 613. Nonuse not necessarily reversible error. - The failure to give a Uniform Jury Instruction under Subdivision 1(c) (see now Paragraph D), if the sole error of the trial court, is not necessarily reversible error. Jewell v. Seidenberg, 1970-NMSC-139, 82 N.M. 120, 477 P.2d 296. Although the use of Uniform Jury Instructions is mandatory, supreme court did not intend to place form above substance in adopting the instructions. The standards there set forth will be of first consideration, and any deviation from them is held to be error. In determining whether it is reversible error, supreme court will accept the slightest evidence of prejudice, and all doubt will be resolved in favor of the party claiming prejudice. Thus, determination will be made by viewing the record in light of the standards the supreme court adopted for a fair trial, rather than indulging in a presumption of prejudice if the Uniform Jury Instructions are not followed. Jewell v. Seidenberg, 1970-NMSC-139, 82 N.M. 120, 477 P.2d 296. Failure to comply with Subdivision 1(c) (see now Paragraph D) is reversible error only if the complaining party is prejudiced by the noncompliance and substantial rights have been harmed, but the slightest evidence of prejudice is sufficient. McCrary v. Bill McCarty Constr. Co., 1979 -NMCA-017, 92 N.M. 552, 591 P.2d 683. Record to be made of reason for nonuse. - Both former 14.1 and 17.8, U.J.I. Civ., were to be given, purposely to cover the subject matter twice, unless, as provided by Subdivision 1(c) (see now Paragraph D), the court found and stated of record its reasons why the proposed instruction was erroneous or otherwise improper. Clinard v. Southern Pac. Co., 1970 -NMSC-093, 82 N.M. 55, 475 P.2d 321. Party may not object where instruction modified to accommodate his evidence. - Having presented evidence of another land sale by the condemnor, the condemnee cannot then complain that the sale was an unfair measure of value, or that UJI Civ. 7.11 (1st Ed.) (now UJI 13-717 ) should not have been modified so as to explain to the jury how they should consider such evidence. El Paso Elec. Co. v. Real Estate Mart, Inc., 1982-NMCA-117, 98 N.M. 570, 651 P.2d 105. Failure to record reasons for denying repetitious instructions did not violate Paragraph D. - It was not error for court to deny requested jury instructions when instructions given adequately covered law to be applied; trial court did not violate Subdivision (D) (see now Paragraph D) in not stating its reasons for refusing requested instructions. Kirk Co. v. Ashcraft, 1984-NMSC-065, 101 N.M. 462, 684 P.2d 1127. Uniform Jury Instructions are standard in determining if a fair trial had resulted. Jewell v. Seidenberg, 1970-NMSC-139, 82 N.M. 120, 477 P.2d 296, 49 A.L.R.3d 121 (1970). V. INSTRUCTION WHEN NO APPLICABLE UNIFORM INSTRUCTION. Use of non-UJI instructions. - Attorneys may request non-Uniform Jury Instructions or modifications thereof where no applicable instruction on the subject is available. Mac Tyres, Inc. v. Vigil, 1979-NMSC-010, 92 N.M. 446, 589 P.2d 1037. The plain meaning of Paragraph D is that it applies when the trial court determines that a particular Uniform Jury Instruction is erroneous or improper. Thus the trial court did not err in failing to make a finding that UJI 13-1811 was erroneous or improper before giving a non-UJI instruction where the two instructions were complementary and both were given. Blacker v. U-Haul Co., 1992-NMCA-001, 113 N.M. 542, 828 P.2d 975. Necessity of additional instructions. - The committee comments to the Uniform Jury Instructions are not the equivalents of the "directions for use"; thus, the giving of an instruction regarding a corporation's liability for actions committed while the corporation was under different ownership, although not found in Uniform Jury Instructions, met the requirements of Subdivision 1(e) (see now Paragraph F), and despite the fact that the committee comment to UJI 13-411 states that UJI 13-411 is sufficient for any issue of liability of a corporation, the "directions for use" suggests an additional instruction may be necessary, so that no error was committed in giving an additional instruction. O'Hare v. Valley Utils., Inc., 1976-NMCA-004, 89 N.M. 105, 547 P.2d 1147, rev'd in part on other grounds, 1976-NMSC-024, 89 N.M. 262, 550 P.2d 274. VI. PREPARATION AND REQUEST FOR INSTRUCTIONS. Generally. - The law requiring instructions to be in writing was mandatory; error is established where record shows charge was given orally, even though charge itself does not appear of record. Territory v. Perea, 1879-NMSC-001, 1 N.M. 627 (decided under former law). The court is under no obligation in civil cases to instruct the jury unless requested so to do, and the fact that an instruction is insufficient is not available error, unless a sufficient instruction was requested. King v. Tabor, 1910-NMSC-037, 15 N.M. 488, 110 P. 601; Palatine Ins. Co. v. Santa Fe Mercantile Co., 1905-NMSC-026, 13 N.M. 241, 82 P. 363 (both cases decided under former law). A judge is not bound to charge the jury in the exact words proposed to him by counsel. The form of expression may be his own. If he instructs the jury correctly and in substance covers the relevant rules of law proposed to him by counsel, there is no error in refusing to adopt the exact words of the request. Cunningham v. Springer, 204 U.S. 647, 27 S. Ct. 301, 51 L. Ed. 662, 9 Ann. Cas. 897 (1907) (decided under former law). In an action of assumpsit against husband and wife jointly for goods sold, it was error not to give an instruction requested by the wife that a married woman is not liable for the debts of her husband, and that before jury could find against her they must find that the goods were sold to her and not to her husband, especially where it was not alleged such goods were necessaries. Holmes v. Tyler, 1896-NMSC-024, 8 N.M. 613, 45 P. 1129 (decided under former law). Entitled to instructions on theories of case supported by evidence. - A party is entitled to have the jury instructed on all correct legal theories of his case which are supported by substantial evidence but in this case the court's refusal to give the involuntary manslaughter instruction was correct where to have given the requested instruction, which included acts for which there was no evidentiary support, would have introduced false issues and would have been misleading to the jury. LaBarge v. Stewart, 1972-NMCA-119, 84 N.M. 222, 501 P.2d 666, cert. denied, 84 N.M. 219, 501 P.2d 663. When pleaded or tried with implied consent. - Before a party is entitled to an instruction upon his theory of the case, that theory must be pleaded or tried with implied consent. Ciesielski v. Waterman, 1974-NMCA-023, 86 N.M. 184, 521 P.2d 649, rev'd on other grounds, 1974-NMSC-086, 87 N.M. 25, 528 P.2d 884. Relied on at pretrial hearing. - A refusal to instruct on assumption of risk when it was not stated as a defense in the pleadings and was not relied on at the pretrial hearing is not error. Skeet v. Wilson, 1966-NMSC-182, 76 N.M. 697, 417 P.2d 889. Failure to submit instruction may limit scope of appeal. - When evidence is admitted over objection, with a statement by the court that its use would be limited by the instructions but the court fails to so instruct, an appellant cannot complain of this action if he does not submit a limiting instruction, or in some manner call the omission to the attention of the court. McCauley v. Ray, 1968-NMSC-194, 80 N.M. 171, 453 P.2d 192. If plaintiff did not tender an instruction concerning how they were to determine the price for or value of the services rendered, plaintiff is not in a position to complain of incomplete instructions. Panhandle Irrigation, Inc. v. Bates, 1968-NMSC-024, 78 N.M. 706, 437 P.2d 705. If plaintiff wished any instruction, it was her duty to submit it in writing, and not merely make a general statement on appeal that the Uniform Jury Instructions were not given. Lopez v. Maes, 1970-NMCA-084, 81 N.M. 693, 472 P.2d 658, cert. denied, 81 N.M. 721, 472 P.2d 984. Submission of improper verdicts. - Parties cannot participate in the submission of an improper verdict or other improper matters and then have the verdict set aside because it may turn out to be unfavorable. Scott v. Brown, 1966-NMSC-135, 76 N.M. 501, 416 P.2d 516. No error if given instructions adequately cover issues of case. - Denial of requested instructions is not error when the court gives instructions adequately covering the issues. Nor is it material that one instruction did not contain all the elements of defendant's requested instruction if all instructions given fairly present the issues and the law applicable thereto. Garcia v. Barber's SuperMarkets, Inc., 1969-NMCA-126, 81 N.M. 92, 463 P.2d 516. If instructions considered on a whole fairly present all issues of law applicable to the facts, then they are sufficient and it is not error to refuse all others as surplusage. Naumburg v. Wagner, 1970-NMCA-019, 81 N.M. 242, 465 P.2d 521. If instructions, considered as a whole, fairly present the issues and the law applicable thereto, they are sufficient. Denial of a requested instruction is not error where the instructions given adequately cover the issue. Hudson v. Otero, 1969-NMSC-125, 80 N.M. 668, 459 P.2d 830. Denial of a requested instruction is not error where the instructions given adequately cover the issue. Flanary v. Transport Trucking Stop, 1968-NMCA-010, 78 N.M. 797, 438 P.2d 637. Court may refuse instruction. - It is not error for the trial court to refuse an instruction which is incomplete, erroneous or repetitious. LaBarge v. Stewart, 1972-NMCA-119, 84 N.M. 222, 501 P.2d 666, cert. denied, 84 N.M. 219, 501 P.2d 663. The trial court properly refused an oral request for an additional instruction because instructions tendered by the parties are to be in writing, and because the oral request was confusing, including a reference to proximate cause, which the requested written instruction on contributory negligence did not. De La O v. Bimbo's Restaurant, Inc., 1976-NMCA-115, 89 N.M. 800, 558 P.2d 69, cert. denied, 90 N.M. 7, 558 P.2d 619. No prejudice when variety of paper qualities received by jury. - Plaintiffs were not prejudiced where six of the seven forms of verdicts submitted to the jury were on onionskin paper and in part carbon copies, but the form of verdict in favor of defendants was in ribbon copy on bond paper. Scott v. Brown, 1966-NMSC-135, 76 N.M. 501, 416 P.2d 516. VII. INSTRUCTIONS IN WRITING TO JURY; WAIVER. Generally. - Any error in permitting instructions to go to jury room was waived, if not invited, where counsel participated in proceedings and objected to sending certain exhibits to jury room, but did not object to sending instructions to jury room until motion for new trial. Dollarhide v. Gunstream, 1951-NMSC-057, 55 N.M. 353, 233 P.2d 1042 (decided prior to 1966 amendments to this rule). Where no objection is raised on account of the failure of the jury to take instructions with them, there is no ground for a new trial. Cunningham v. Springer, 1905-NMSC-027, 13 N.M. 259, 82 P. 232, aff'd, 204 U.S. 647, 27 S. Ct. 301, 51 L. Ed. 662, 9 Ann. Cas. 897 (1907) (decided under former law). Instructions must be submitted to the court in writing when the evidence is concluded, and before the cause is argued or submitted to the jury, and an oral request after jury had retired must be refused. Laws v. Pyeatt, 1935-NMSC-091, 40 N.M. 7, 52 P.2d 127 (decided under former law). Denial of requested instruction which is not in writing is not error. Lujan v. McCuistion, 1951-NMSC-043, 55 N.M. 275, 232 P.2d 478. Duty of court as to instructions. - Both Subdivisions 1(a) and 1(g) (see now Paragraphs B and I), should be read together and must be reconciled by a holding that it is the duty of the court at every trial to give to the jury the fundamental law applicable to the facts in the case and that, unless waived by the parties, instructions to that extent at least must be given whether requested or not; and further that if incidental questions arise in the case, as almost always occur in the trial of a case, the court need not instruct on such incidental questions unless request be made, in writing, before the jury retires. Gerrard v. Harvey & Newman Drilling Co., 1955-NMSC-034, 59 N.M. 262, 282 P.2d 1105. VIII. ERROR IN INSTRUCTIONS; PRESERVATION. A. IN GENERAL. Instruction not distinguishing between claims, nor between contribution and indemnity, incorrect. - Where a requested instruction fails to distinguish between the claims of the third-party plaintiffs and fails to distinguish between contribution and indemnity, it is incorrect and therefore should be refused. Dessauer v. Memorial Gen. Hosp., 1981 -NMCA-051, 96 N.M. 92, 628 P.2d 337. Notice and opportunity to correct errors needed. - Unless the trial court's attention is called in some manner to the fact that it is committing error, and given an opportunity to correct it, cases will not be reversed because of errors which could and would have been corrected in the trial court, if they had been called to its attention. City of Albuquerque v. Ackerman, 1971-NMSC-032, 82 N.M. 360, 482 P.2d 63. Attorneys are afforded a reasonable opportunity to object to instructions and such objections must be explicit. Objections in general terms are not sufficient as the trial court must be advised on the specific error so he may have an opportunity to correct it. Echols v. N.C. Ribble Co., 1973-NMCA-038, 85 N.M. 240, 511 P.2d 566, cert. denied, 85 N.M. 229, 511 P.2d 555. It is not sufficient that the objection be in general terms. The court must be advised of the error therein so he may have an opportunity to correct it. Sturgeon v. Clark, 1961-NMSC-125, 69 N.M. 132, 364 P.2d 757. Objection cannot be made in general terms. Atler v. Murphy Enterprises, Inc., 2005-NMCA-006, 136 N.M. 701, 104 P.3d 1092, cert. granted, 2005-NMCERT-001. In an action by a tenant against a landlord for violation of the Owner-Resident Relations Act, when the landlord did not tender correct or adequate instructions on his theory that the act did not apply because the tenant was an employee, and since the amendment making the act applicable to written agreements only was not brought to the attention of the court, unpreserved errors in the jury instructions that were given covering these matters were not reviewable since they were not fundamental and did not involve the public interest. Gracia v. Bittner, 1995-NMCA-064, 120 N.M. 191, 900 P.2d 351. There is no issue concerning propriety of instruction where there is no objection. Perfetti v. McGhan Medical, 1983-NMCA-032, 99 N.M. 645, 662 P.2d 646. Complaint as to nonacceptance of testimony by jury barred absent objection to instruction. - Not having objected to an expert testimony instruction, the plaintiff may not complain of the jury's failure to accept 100 percent of an expert's uncontradicted testimony. Strickland v. Roosevelt Cnty.Rural Elec. Coop., 1982 -NMCA-184, 99 N.M. 335, 657 P.2d 1184, cert. denied, 463 U.S. 1209, 103 S. Ct. 3540, 77 L. Ed. 2d 1390 (1983). No appeal without proper objection. - Objections must be made to an instruction if error is to be preserved for appeal. Morris v. Dodge Country, Inc., 1973-NMCA-100, 85 N.M. 491, 513 P.2d 1273, cert. denied, 85 N.M. 483, 513 P.2d 1265. In order to preserve error in the giving of an instruction, objection must be made thereto, whether in the Uniform Jury Instructions or not. Jasper v. Lumpee, 1970-NMCA-014, 81 N.M. 214, 465 P.2d 97. Plaintiff is required to call a claimed error in instructions to the attention of the trial court. Where he did not do so this contention will not be reviewed. Sanchez v. J. Barron Rice, Inc., 1967-NMSC-077, 77 N.M. 717, 427 P.2d 240. Where appellants argue that court erred in failing to instruct on circumstantial evidence, and it is a point raised on appeal for the first time, as no instruction was tendered by the appellants at the trial, even if such an omission were error, the error is not preserved. State v. Gutierrez, 1965-NMSC-143, 75 N.M. 580, 408 P.2d 503. Appellant's objection to a jury instruction was not considered as it failed to specifically object to the instruction in the trial court on any of the grounds urged on appeal, and the error was not preserved. Lanier v. Securities Acceptance Corp., 1965-NMSC-011, 74 N.M. 755, 398 P.2d 980. The form of the instruction to the jury on unavoidable accident is not subject to review since plaintiff failed, by proper objection, to preserve the error in the lower court. Zamora v. Smalley, 1961-NMSC-004, 68 N.M. 45, 358 P.2d 362. At trial appellant failed to specifically object to the instruction on unavoidable accident on the ground that it was an inaccurate statement of law, and, therefore, could not on appeal raise the issue since he had failed, by proper objection, to preserve the error, if any, of the lower court. Lucero v. Torres, 1960-NMSC-034, 67 N.M. 10, 350 P.2d 1028. A litigant may not sit by and see the trial court about to give an erroneous instruction and one that is contrary to his theory of the case without objecting and pointing out the vice thereof, and then claim error for failing to adopt his contrary instruction. This rule is the same in civil and criminal cases. State ex rel. State Hwy. Comm'n v. Weatherly, 1960-NMSC-048, 67 N.M. 97, 352 P.2d 1010. Where no objection was made and saved in trial court that court commented on weight of evidence, it is not available on appeal. Nelson v. Hill, 1924-NMSC-081, 30 N.M. 288, 232 P. 526 (decided under former law). Errors in giving or refusing instructions and in deciding matters of law arising on trial cannot be considered on appeal unless incorporated in bill of exceptions, for the mandatory terms of Laws 1880, ch. 6, §26 (70-107, C.S. 1929) (now superseded by this rule) require exceptions to secure a review. Rogers v. Richards, 1896-NMSC-031, 8 N.M. 658, 47 P. 719 (decided under former law). No corrections made. - Where neither party objected to the instruction, the appellate court will not consider the trial court's error in including the price claimed for the services as part of the alleged sale. Panhandle Irrigation, Inc. v. Bates, 1968-NMSC-024, 78 N.M. 706, 437 P.2d 705. Instructions become law of case. - Where defendant did not tender any instructions nor object to the instructions given, those instructions became "the law of the case" on appeal and not vulnerable to attack. Sanford v. Stroll, 1974-NMCA-003, 86 N.M. 6, 518 P.2d 1210. Where no objection was made to any of these instructions in the trial court, and no claim of error therein is asserted on appeal, the statements contained in the instructions are the law of the case. Adamson v. Highland Corp., 1969-NMCA-007, 80 N.M. 4, 450 P.2d 442. Where the court's instruction as to the effect of a jury view of condemned land was in no way attacked in the trial court and is not attacked on appeal, it is the law of the case. AT & T Co. v. Walker, 1967-NMSC-049, 77 N.M. 755, 427 P.2d 267. Timeliness of objections. - Error in failure to give incidental instructions, even from the Uniform Jury Instructions, and even though mandatory, must be brought to the attention of the court in timely fashion if it is to be preserved as error, at least as to instructions which do not cover the fundamental law applicable to the facts in the case. City of Albuquerque v. Ackerman, 1971-NMSC-032, 82 N.M. 360, 482 P.2d 63. Errors in respect to instructions are to be invited to the attention of the court before retirement of the jury. City of Albuquerque v. Ackerman, 1971-NMSC-032, 82 N.M. 360, 482 P.2d 63. Any claimed error on instructions given, whether Uniform Jury Instructions or not, whether mandatory or not, at least as to instructions which do not cover the fundamental law applicable to the facts, must be brought to the attention of the trial court for ruling before retirement of the jury. Otherwise, it is not subject to review. Valencia v. Beaman, 1973-NMCA-056, 85 N.M. 82, 509 P.2d 274. B. PRESERVATION OF ERROR. Generally. - Prior to the publication of this opinion (1953) it was possible to preserve error in the court's charge either by specifically pointing out the error in objection thereto, or by tendering a correct instruction. No distinction was recognized in the decisions between instances where the court did or did not instruct on the point. State v. Compton, 1953-NMSC-036, 57 N.M. 227, 257 P.2d 915. Preservation requirement of Paragraph I is not intended to be punitive. Martinez v. Friede, 2004-NMSC-006, 135 N.M. 171, 86 P.3d 596. Purpose of Paragraph I would be undermined by precluding district court judges from protecting unpreserved errors prior to appeal. Martinez v. Friede, 2004-NMSC-006, 135 N.M. 171, 86 P.3d 596. Paragraph I presents no barrier to district court's ability to reopen judgment under Rule 1-060 NMRA and grant a new trial on the basis of juror confusion, despite petitioner's failure to object to a jury instruction. Martinez v. Friede, 2004-NMSC-006, 135 N.M. 171, 86 P.3d 596. To preserve error in instructions for review: (1) it is sufficient if a correct instruction has been tendered, if the court has not instructed on the subject matter; (2) if, however, the court has instructed erroneously on a subject, even where a correct instruction has been tendered, it must be clear in the record that the error has been called to the court's attention. Where the court has instructed erroneously, it is not a prerequisite to a right to complain of an instruction that a correct instruction be offered - rather the important question concerns the clarity with which the errors in the instruction given have been called to the attention of the trial court. Baros v. Kazmierczwk, 1961-NMSC-055, 68 N.M. 421, 362 P.2d 798. Correct interpretation of rule is that where the court has not instructed on the subject it is sufficient to preserve the error if a correct instruction is tendered. But, where the court has instructed erroneously on the subject, although a correct instruction has been tendered on the point, if it leaves it doubtful whether the trial judge's mind was actually alerted thereby to the defect sought to be corrected by the requested instruction, the error is not preserved unless, in addition, the specific vice in the instruction given is pointed out to the trial court by proper objection thereto only. State v. Compton, 1953-NMSC-036, 57 N.M. 227, 257 P.2d 915. Need to point out specific vice of instruction. - Where the court has instructed erroneously on a subject, although a correct instruction has been tendered on the point, if it leaves it doubtful whether the trial judge's mind was actually alerted thereby to the defect sought to be corrected by the requested instruction, the error is not preserved unless, in addition, the specific vice in the instruction given is pointed out to the trial court by proper objection thereto. Bendorf v. Volkswagenwerk Aktiengesellschaft, 1975-NMCA-100, 88 N.M. 355, 540 P.2d 835, cert. denied, 88 N.M. 319, 540 P.2d 249, aff'd, 1977-NMCA-038, 90 N.M. 414, 564 P.2d 619. Where the trial court fails to instruct on a certain subject, tendering of correct instruction is sufficient to preserve error, but to preserve error where the court has given erroneous instruction, specific vice must be pointed out to the trial court by proper objection thereto and correct instruction tendered. Williams v. Vandenhoven, 1971-NMSC-029, 82 N.M. 352, 482 P.2d 55. To save a question for review, it must be presented to the court and a ruling invoked thereon. It follows, therefore, that instructions, right or wrong, cannot be reviewed for error where the objections failed to point out the vice in the instructions. Louderbough v. Heimbach, 1961-NMSC-020, 68 N.M. 124, 359 P.2d 518. To preserve error on appeal as to an instruction, the objection must specifically guide the mind of the trial court to the claimed vice. Objections in general terms are not sufficient to advise the court of the particular claim of error so that it may be corrected. Poorbaugh v. Mullen, 1982-NMCA-141, 99 N.M. 11, 653 P.2d 511. Where a defendant claimed on appeal that an instruction was not supported by sufficient evidence, but at trial the objection made did not refer either to causation or to the sufficiency of the evidence to support the instruction, the objection made at trial was not specific enough to alert the district court to the contention made on appeal. Andrus v. Gas Co., 1990-NMCA-049, 110 N.M. 593, 798 P.2d 194. An objection on appeal cannot change from that argued to the trial court and this is particularly true for challenges to jury instructions. Hinger v. Parker & Parsley Petro. Co., 1995 -NMCA-069, 120 N.M. 430, 902 P.2d 1033. Need to tender correct instruction. - Issue was not properly preserved for appeal when, although the failure to instruct was on a point of law, a correct instruction was not tendered. Terrel v. Duke City Lumber Co., 1974-NMCA-041, 86 N.M. 405, 524 P.2d 1021, aff'd in part, rev'd in part sub nom. 1975-NMSC-041, 88 N.M. 299, 540 P.2d 229. In a patient's medical malpractice case against a doctor where the trial court required the patient to refine his proffered jury instructions, the patient objected to neither the wording, nor the structure of the instruction ultimately given, and never suggested better or different wording or structure; thus, the patient failed to preserve error. Allen v. Tong, 2003-NMCA-056, 133 N.M. 594, 66 P.3d 963. When no need to tender correct instruction. - Where counsel pointed out the defect in the instruction and all that would have been required to correct it would have been to strike out and omit the second sentence, no purpose would have been served by requiring the attorneys in the midst of a trial to find a means to get the correct instruction in shape to tender in writing. Where defendant pointed out defect in instruction, he did all that was necessary to sufficiently preserve error. Baros v. Kazmierczwk, 1961-NMSC-055, 68 N.M. 421, 362 P.2d 798. Issue of erroneous instructions preserved. - The issue of erroneous instructions was preserved, notwithstanding the failure to record "extensive argument" regarding such instructions, where the trial judge was alerted to any error in the instructions and had the opportunity to correct any error prior to retirement of the jury by virtue of his participation in the argument. Nichols Corp. v. Bill Stuckman Constr., Inc., 1986-NMSC-077, 105 N.M. 37, 728 P.2d 447. IX. REVIEW. Preservation of error for review. - Where the trial court fails to instruct on a certain subject, tendering of correct instruction is sufficient to preserve error, but to preserve error where the court has given erroneous instruction, specific vice must be pointed out to the trial court by proper objection thereto and correct instruction tendered. Williams v. Vandenhoven, 1971-NMSC-029, 82 N.M. 352, 482 P.2d 55. To preserve error in instructions for review: (1) it is sufficient if a correct instruction has been tendered, if the court has not instructed on the subject matter; (2) if, however, the court has instructed erroneously on a subject, even where a correct instruction has been tendered, it must be clear in the record that the error has been called to the court's attention. Where the court has instructed erroneously, it is not a prerequisite to a right to complain of an instruction that a correct instruction to be offered - rather the important question concerns the clarity with which the errors in the instruction given have been called to the attention of the trial court. Williams v. Vandenhoven, 1971-NMSC-029, 82 N.M. 352, 482 P.2d 55. Need to point out specific defects in instructions. - Objections which fail to point out specifically the vice or defect in an instruction, so as to clearly inform the trial court of the claimed error, are insufficient to preserve the error for review. Scott v. Brown, 1966-NMSC-135, 76 N.M. 501, 416 P.2d 516. A general exception or objection to an instruction is not sufficient to preserve claimed error. The specific vice in the instruction must be pointed out so as to leave no doubt that the court's mind was actually altered. Castillo v. Juarez, 1969-NMCA-031, 80 N.M. 196, 453 P.2d 217. Need evidence on which instruction founded. - Neither instructions given by the court, nor instructions requested by the parties, can ordinarily be reviewed by an appellate court in the absence of the evidence, for the reason that proper instructions are necessarily founded on the evidence. Scott v. Brown, 1966-NMSC-135, 76 N.M. 501, 416 P.2d 516. All instructions must be read and considered together, and if, when so considered together, they fairly present the issues and the law applicable thereto, they are sufficient. Williams v. Vandenhoven, 1971-NMSC-029, 82 N.M. 352, 482 P.2d 55. Law reviews. - For article, "The `New Rules' in New Mexico," see 1 Nat. Resources J. 96 (1961). For note, "Undue Influence in Wills - Evidence - Testators' Position Changes After In re Will of Ferrill," see 13 N.M.L. Rev. 753 (1983). Am. Jur. 2d, A.L.R. and C.J.S. references. - 75A Am. Jur. 2d Trial §1077 et seq. Instructions in civil action for assault upon female person, 6 A.L.R. 1030. Necessity of repeating definition of legal or technical term in different parts of instructions in which it is employed, 7 A.L.R. 135. Instructions in action based on employer's statutory duty as to timbering of mines, 15 A.L.R. 1491. Use of emphatic words, like "great care," "utmost care" or "highest care" in instructing jury as to duty of carrier to passengers, 32 A.L.R. 1190. Instruction as to what items of damage on account of personal injury to infant belongs to him and what to parent, 37 A.L.R. 78, 32 A.L.R.2d 1060. Instructions in action on policy insuring against automobile conversion or embezzlement, 55 A.L.R. 848. Duty to instruct, and effect of failure to instruct jury as to reduction to present worth of damages for future loss on account of death or personal injury, 77 A.L.R. 1439, 154 A.L.R. 796. Statute in relation to subject-matter or form of instructions as impairing right to jury trial, 80 A.L.R. 906. Duty to instruct as to what constitutes natural drainway for flow of surface water, 81 A.L.R. 273. Court's communication with or instructions to jury in civil case in absence of counsel, 84 A.L.R. 220. Instructions regarding measurement of damages for pain and suffering, 85 A.L.R. 1010. Instructions regarding determination of life expectancy, 87 A.L.R. 910. Instruction as to mental suffering as element of damages for libel and slander, 90 A.L.R. 1195. Necessity of defining preponderance or weight of evidence, 93 A.L.R. 156. Furnishing or reading instructions to jury, in jury room, after retirement, as error, 96 A.L.R. 899. Instruction in action for injury or damage by automobile colliding with temporary obstruction in connection with alteration or repair of street, 100 A.L.R. 1389. Sufficiency of instruction on contributory negligence as respects element of proximate cause, 102 A.L.R. 411. Right or duty of court to instruct jury as to presumptions, 103 A.L.R. 126. Instructions to jurors as to right to act upon their own knowledge in determining property values, 104 A.L.R. 1020. Instructions in action for injury to trespasser or licensee struck by object projecting or thrown from passing train, 112 A.L.R. 864. Necessity of expert testimony to justify instruction to jury as to permanency of injury or as to future pain and suffering, 115 A.L.R. 1149. Failure to comply with statute, constitutional provision or court rule providing for giving instructions to jury in writing as prejudicial or reversible error, 115 A.L.R. 1332. Propriety of instruction as to instinct of self-preservation where there is direct evidence as to what took place at time of accident, 116 A.L.R. 340. Use of, or comment on use of, "and/or" in instruction, 118 A.L.R. 1376, 154 A.L.R. 866. Instructions as to effect of good or bad character of witnesses in their credibility, 120 A.L.R. 1443. Propriety in action for libel or slander where actual damages are not shown, of instructions on compensatory damages which do not embody jury's right to award small or nominal damages, 122 A.L.R. 853. Duty of court in civil case to correct, and to give as corrected, a requested instruction which includes a clerical or inadvertent mistake, 125 A.L.R. 685. Propriety of instruction, or requested instruction, in civil case, as to caution in considering testimony of oral admissions, or as to weight of such admissions as evidence, 126 A.L.R. 66. Propriety and effect of instruction or requested instruction which either affirms or denies jury's right to draw unfavorable inference against a party because he invokes privilege against testimony of person offered as witness by the other party or because he fails to call such person as a witness, 131 A.L.R. 693. Propriety of instructions on matters of common knowledge, 144 A.L.R. 932. Right of defendant in prosecution for perjury to have the "two witnesses, or one witness in corroborating circumstances," rule included in charge to jury, 156 A.L.R. 499. Instruction in ejection on rule that plaintiff must recover on strength of own title, 159 A.L.R. 646. Instructions defining weight and value of dying declarations as evidence, 167 A.L.R. 158. Duty of court instructing jury to explain and define offense charged, 169 A.L.R. 315. Use of language of statute in explaining and defining of offense charged, 169 A.L.R. 331. Necessity of request for instruction giving definition or explanation of crime, 169 A.L.R. 352. Constitutional or statutory provision permitting comment on failure of defendant in criminal case to explain or deny by his testimony, evidence or facts against him, 171 A.L.R. 1267. Right of plaintiff in res ipsa loquitur case to an instruction respecting inference by jury, 173 A.L.R. 880. Propriety of instruction mentioning or suggesting specific sum as damages in personal injury action, 2 A.L.R.2d 454. Modern view as to propriety and correctness of instructions referable to maxim "falsus in uno, falsus in omnibus," 4 A.L.R.2d 1077. Propriety and effect of court's indication to jury that court would suspend sentence, 8 A.L.R.2d 1001. Propriety of instructions in will contest defining natural objects of testator's bounty, 11 A.L.R.2d 731. Instruction requiring or permitting consideration of changes in cost of living or in purchasing power of money in fixing damages, 12 A.L.R.2d 611, 21 A.L.R.4th 21. Instructions to jury in action by patron of public amusement for accidental injury from cause other than assault, hazards of game or amusement, or condition of premises, 16 A.L.R.2d 912. Driving motor vehicle without lights or with improper lights as affecting liability for collision, 21 A.L.R.2d 7, 62 A.L.R.3d 560, 62 A.L.R.3d 771, 62 A.L.R.3d 844. Binding effect of court's order entered after pretrial conference, 22 A.L.R.2d 599. Instructions as to intoxication of person injured or killed as affecting applicability of last clear chance doctrine, 26 A.L.R.2d 308. Instructions in action for injury incident to touring automobile, 30 A.L.R.2d 1019. Instruction as to application of "assured clear distance ahead" or "radius of lights" doctrine to accident involving pedestrian crossing street or highway, 31 A.L.R.2d 1424. Right of defendant to complain, on appellate review, of instructions favoring codefendant, 60 A.L.R.2d 524. Prejudicial effect of judge's disclosure to jury of motions or proceedings in chambers in civil case, 77 A.L.R.2d 1253. Indoctrination by court of persons summoned for jury service, 89 A.L.R.2d 197. Provision in Rule 51, Federal Rules of Civil Procedure, and similar state rules and statutes, requiring court to inform counsel, prior to argument to jury, of its proposed action upon requests for instructions, 91 A.L.R.2d 836. Propriety and prejudicial effect of instructions in civil case as affected by the manner in which they are written, 10 A.L.R.3d 501. Sufficiency of evidence, in personal injury action, to prove future pain and suffering and to warrant instructions to jury thereon, 18 A.L.R.3d 10. Sufficiency of evidence, in personal injury action, to prove impairment of earning capacity and to warrant instructions to jury thereon, 18 A.L.R.3d 88. Sufficiency of evidence, in personal injury action, to prove permanence of injuries and to warrant instructions to jury thereon, 18 A.L.R.3d 170. Propriety and effect of instruction to the jury as to landowner's unwillingness to sell property in eminent domain proceedings, 20 A.L.R.3d 1081. Admissibility and probative value of admissions of fault by agent on issue of principal's secondary liability, where both are sued, 27 A.L.R.3d 966. Verdict-urging instructions in civil case stressing desirability and importance of agreement, 38 A.L.R.3d 1281. Verdict-urging instructions in civil case commenting on weight of majority view or authorizing compromise, 41 A.L.R.3d 845. Verdict-urging instructions in civil case admonishing jurors to refrain from intransigence or reflecting on integrity or intelligence of jurors, 41 A.L.R.3d 1154. Construction of statutes or rules making mandatory the use of pattern or uniform approved jury instructions, 49 A.L.R.3d 128. Necessity and propriety of instructing on alternative theories of negligence or breach of warranty, where instruction on strict liability in tort is given in products liability case, 52 A.L.R.3d 101. Liability or recovery in automobile negligence action arising out of collision or upset as affected by operation of vehicle without front lights or with improper front lights, 62 A.L.R.3d 560. Liability or recovery in automobile negligence action arising out of collision or upset as affected by operation of vehicle without or with improper taillights or rear reflectors, 62 A.L.R.3d 771. Liability or recovery in automobile negligence action arising out of collision or upset as affected by operation of vehicle without, or with improper, clearance, load, or similar auxiliary lights, 62 A.L.R.3d 844. Instructions as to duty to dim motor vehicle lights, 63 A.L.R.3d 824. Right of defendant in prosecution for perjury to have the "two witnesses, or one witness and corroborating circumstances," rule included in charge to jury - state cases, 41 A.L.R.5th 1. Federal Rules of Civil Procedure, construction and effect of provision in Rule 51, and similar state rules, that counsel be given opportunity to make objections to instructions out of hearing of jury, 1 A.L.R. Fed. 310. When will federal court of appeals review issue raised by party for first time on appeal where legal developments after trial effect issue, 76 A.L.R. Fed. 522. 88 C.J.S. Trial §§ 267, 330 to 333, 390, 413.