N.M. R. Civ. P. Dist. Ct. 1-061
No error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.
N.M. R. Civ. P. Dist. Ct. 1-061
ANNOTATIONS Compiler's notes. - For derivation of this rule, see notes to Rule 1-060 NMRA. This rule, to the extent it relates to evidentiary matters, is deemed superseded by Rule 11-103 NMRA. On account of the relevancy of this rule to nearly all appeals, the cases annotated below should not be considered an all-inclusive listing of the applications of the rule. Rule applicable to appellate courts. - This rule applies not only to the district courts, but also to appellate courts. El Paso Elec. Co. v. Real Estate Mart, Inc., 1982-NMCA-117, 98 N.M. 570, 651 P.2d 105; Gallegos v. Citizens Ins. Agency, 1989-NMSC-055, 108 N.M. 722, 779 P.2d 99. This rule necessarily confers discretion upon trial court in its application to Rule 60 (see now Rule 1-060 NMRA). Adams & McGahey v. Neill, 1954-NMSC-116, 58 N.M. 782, 276 P.2d 913. Polling jury, slightest evidence of prejudice acceptable. - Mere failure of trial court to poll jury upon proper request does not in itself constitute reversible error, but reviewing court will accept the slightest evidence of prejudice, and all doubt will be resolved in favor of the party claiming prejudice. Levine v. Gallup Sand & Gravel Co., 1971-NMSC-071, 82 N.M. 703, 487 P.2d 131. Error to warrant a reversal must be prejudicial. State v. Ranne, 1969-NMCA-029, 80 N.M. 188, 453 P.2d 209. A party must show prejudice before reversal is warranted. El Paso Elec. Co. v. Real Estate Mart, Inc., 1982-NMCA-117, 98 N.M. 570, 651 P.2d 105. To complaining party. - Plaintiffs are not entitled to a reversal based upon error which does not affect them and which is harmless to them. Poulos v. Cock 'N Bull Beverage, Inc., 1971-NMCA-118, 83 N.M. 45, 487 P.2d 1350. Unless errors committed by lower court are shown to be prejudicial to a substantial right of the party complaining, they will be disregarded. Johnson v. Nickels, 1959-NMSC-079, 66 N.M. 181, 344 P.2d 697. Appeals are ordinarily not allowed for the purpose of settling abstract questions, however interesting or important to the public generally, but only to correct error injuriously affecting appellant. Ruidoso State Bank v. Brumlow, 1970-NMSC-042, 81 N.M. 379, 467 P.2d 395, overruled on other grounds by De Vargas Sav. & Loan Ass'n v. Campbell, 1975-NMSC-026, 87 N.M. 469, 535 P.2d 1320. Who should reserve error for review. - Although Rule 51(1)(b) (see now Rule 1-051 NMRA) is a mandatory direction to the trial court to give appropriate portions of uniform jury instruction near 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. Technical error harmless. - Use of word "statute" instead of the word "law" in instruction on common-law duty of drivers to keep proper lookout and maintain proper control of vehicles was technical and harmless error and should be disregarded. Porter v. Ferguson-Steere Motor Co., 1958-NMSC-027, 63 N.M. 466, 321 P.2d 1112. Particular form of judgment, order or decision is of no consequence so long as it can be ascertained therefrom what rights, if any, of the respective parties have been determined thereby. Garver v. Public Serv. Co., 1966 -NMSC-261, 77 N.M. 262, 421 P.2d 788. Proper to restrict examination by counsel. - Restriction of examination by counsel was strictly within the trial judge's discretion and was done to avoid repetition of questions and answers. Whereas trial judge has a duty to guide a trial expeditiously to its conclusion, and rulings were not inconsistent with justice nor were substantial rights of any party affected, then the error, if any, was harmless. Csanyi v. Csanyi, 1971-NMSC-037, 82 N.M. 411, 483 P.2d 292. Order limiting issues not prejudicial. - Trial court order limiting the issues in the case to assertions that employment contract was without consideration and signed under duress was not prejudicial to plaintiff. Taylor v. Lovelace Clinic, 1967-NMSC-234, 78 N.M. 460, 432 P.2d 816. Allowing trial amendment to complaint harmless error. - Where the original complaint contained no allegation of gross negligence, but a trial amendment to the complaint was allowed to insert one in absence of notice to the defendant, who had appeared and answered but was not present in person or by counsel at the trial, allowance of amendment was harmless error. Gurule v. Larson, 1967-NMSC-249, 78 N.M. 496, 433 P.2d 81. Likewise omission of instruction on proximate cause. - In an automotive collision case, while something might have been added by way of understandability if the instruction had included an admonition that there would be no liability unless the negligence as defined proximately contributed to the accident, it cannot be said that omission of such language constitutes reversible error. Sturgeon v. Clark, 1961-NMSC-125, 69 N.M. 132, 364 P.2d 757. Refusal to instruct on negligence per se prejudicial error. - It was prejudicial error for trial court to refuse to instruct the jury that violation of the ordinance involved is negligence as a matter of law where it is proximate cause of injury. Sanchez v. J. Barron Rice, Inc., 1967-NMSC-077, 77 N.M. 717, 427 P.2d 240. Remittitur or new trial properly refused. - Where the court found ample evidence of a substantial nature to support the verdict, where amounts awarded by the jury were all between the highest and lowest values testified to by the various witnesses and where nothing in the record indicated that the verdict of the jury was wrong or that it was made through mistake or prejudice or that it was excessive as a matter of law, court properly refused to grant remittitur or a new trial. El Paso Elec. Co. v. Landers, 1970-NMSC-001, 82 N.M. 265, 479 P.2d 769. Findings of court should be considered in their entirety; appellant cannot rely on one erroneous conclusion to justify reversal of the entire case. Stolworthy v. Morrison-Kaiser F & S, 1963-NMSC-053, 72 N.M. 1, 380 P.2d 13. Appellate court cannot limit its review to only a portion of the record but must review the entire record presented to the trial court. Coe v. City of Albuquerque, 1968-NMSC-069, 79 N.M. 92, 440 P.2d 130. It was not material that jury instruction did not contain all aspects of damages to be considered by the jury where the instructions read as a whole fairly presented the damage issue; trial court did not commit error in giving said instruction. Lujan v. Gonzales, 1972-NMCA-098, 84 N.M. 229, 501 P.2d 673, cert. denied, 84 N.M. 219, 501 P.2d 663. A reviewing court 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. If trial court stated a reason upon which it could properly disallow the amendment to the complaint, its ruling is not to be reversed because it also stated another allegedly erroneous reason. Cantrell v. Dendahl, 1972-NMCA-035, 83 N.M. 583, 494 P.2d 1400. Error was harmless where trial court's conclusion of law was that plaintiff's claim of title was barred solely upon a claim of adverse possession when actually it rested on other grounds as well. Heron v. Conder, 1967-NMSC-039, 77 N.M. 462, 423 P.2d 985. Erroneous finding of fact immaterial to decision in case is harmless error and cannot be basis for reversal. Board of Cnty. Comm'rs v. Little, 1964-NMSC-240, 74 N.M. 605, 396 P.2d 591. Error must necessarily have affected ultimate disposition of case. - Trial court's failure to adopt requested findings was not reversible error where had findings between adopted, they would not necessarily have affected the ultimate disposition of the case. Grants State Bank v. Pouges, 1972-NMSC-074, 84 N.M. 340, 503 P.2d 320. Judgment will not be reversed by reason of erroneous instruction unless upon 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 evidence indicates that without such error in the instructions the verdict probably would have been different from the verdict actually returned by the jury. Since there was a conflict in the evidence as to degree of injury of plaintiffs and there was evidence that much of chiropractor's treatment may have been unnecessary and that he had a personal interest in prolonging treatment, jury had ample ground for deciding that plaintiffs had suffered no compensable injuries as a result of the collision, and therefore inclusion of an erroneous instruction as to contributory negligence of 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. Erroneous findings of fact unnecessary to support judgment of the court are not grounds for reversal. Specter v. Specter, 1973-NMSC-047, 85 N.M. 112, 509 P.2d 879. There was no prejudice to appellant nor any error that would affect the ultimate result or substantial rights of the parties as a result of trial court's quieting title to the stock in defendant as against plaintiff where there was technically no pleading warranting granting of such relief, but the complaint sought an adjudication of ownership in the stock and the answer not only denied plaintiff's ownership but asserted ownership in defendant. Hyde v. Anderson, 1961-NMSC-005, 68 N.M. 50, 358 P.2d 619. Failure to instruct on a theory supported by substantial evidence is generally reversible error, but if jury has resolved question of liability in favor of defendant, failure to have given correct instructions on question of damages does not constitute reversible error. Britton v. Boulden, 1975-NMSC-029, 87 N.M. 474, 535 P.2d 1325. Exclusion of evidence deemed harmless error. Kleinberg v. Board of Educ., 1988-NMCA-014, 107 N.M. 38, 751 P.2d 722. Exclusion of evidence did not affect the substantial rights of defendants. - Where plaintiff brought a claim under the Whistleblower Protection Act (WPA), NMSA 1978, §§ 10-16C-1 to -6, claiming that defendants were in violation of state law by failing to promptly and immediately investigate reports of child abuse and neglect referred to the Farmington Police Department (FPD) from the New Mexico Children, Youth and Families Department (CYFD), the district court's exclusion of evidence documenting the reprimand of plaintiff that occurred after plaintiff's chain of command received plaintiff's report regarding potential negligence on the part of the FPD, if erroneous, was harmless, because defendant's proffered evidence was cumulative of other testimony that defendants' understanding of plaintiff's complaints was that FPD was defrauding the FBI, not that FPD was in violation of state law. Dart v. Westall, 2018-NMCA-061. Court must state error did not affect jury to affirm erroneous ruling. - If the court is to affirm an erroneous ruling, it must say with a high degree of assurance that the error did not affect the jury and was therefore harmless. Mallard v. Zink, 1979-NMCA-114, 94 N.M. 94, 607 P.2d 632, cert. denied, 94 N.M. 629, 614 P.2d 546. Speculative effect not considered on appeal. - Even if trial court erred in denying plaintiffs' motions for summary judgment and for an instructed verdict on liability, plaintiffs were not harmed since jury found for plaintiffs on liability; assertion that an unnecessary battle by the jury on the question of liability led it to compromise on the award is pure speculation. Phillips v. Smith, 1974-NMCA-064, 87 N.M. 19, 528 P.2d 663, cert. denied, 87 N.M. 5, 528 P.2d 649, overruled on other grounds by Baxter v. Gannaway, 1991-NMCA-120, 113 N.M. 45, 822 P.2d 1128. No reversible error where substantial evidence on both sides. - Where evidence is conflicting, refusal to make findings and conclusions favorable to unsuccessful party cannot be sustained as error. Thus where requested findings would have been supported by substantial evidence, but trial court adopted contrary findings also supportable by substantial evidence, there was no reversible error. Grants State Bank v. Pouges, 1972-NMSC-074, 84 N.M. 340, 503 P.2d 320. Where reasons in record, failure to specify not reversible error. - Although trial court did not state of record reasons for modification of a uniform jury instruction on damages as is required by Rule 51(c) (see now Rule 1-051 NMRA), nonetheless there was evidence in the record to support modification, and defendant failed to show any prejudice resulting therefrom; thus modification was not reversible error. 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. Am. Jur. 2d, A.L.R. and C.J.S. references. - 5 Am. Jur. 2d Appellate Review §562 et seq.; 58 Am. Jur. 2d New Trial §§83 to 86. Counsel's argument or comment stating or implying that defendant is not insured and will have to pay verdict himself as prejudicial error, 68 A.L.R.4th 954. 5 C.J.S. Appeal and Error §470 et seq.; 66 C.J.S. New Trial § 17.