(specially concurring).
I concur in the result reached by Judge Sutin. My reasons follow.
1.In arguing the sufficiency of the evidence, defendant failed to comply with Rule of Civ.App.Proc. 9(d) in that defendant did not state the substance of all evidence bearing on this issue. Instead, defendant argues insufficiency by taking testimony out of context and, in effect, asks this Court to weigh the evidence. Contrary to defendant’s contention, there is evidence that the weld which failed was defective. The defect was either metal fatigue, the absence of an inside weld, or insufficient penetration of the weld. Defendant contends there was no evidence that a defect existed when it left the manufacturer. The evidence of no changes in the tank subsequent to manufacture and the evidence that the tank was properly used, permits the inference that the defect existed while the tank was with the manufacturer. Contrary to defendant’s contention, the testimony supporting the verdict is not based on speculation and conjecture.
Defendant attempts to obfuscate the evidence issue by asserting that plaintiff could not rely on res ipsa loquitur; plaintiff did not rely on res ipsa loquitur. Another attempt at obfuscation is the claim that expert witnesses judged the credibility of other witnesses. This claim simply disregards the testimony of the experts, and is not supported by the record. Related to these obfuscations are additional claims, not discussed by Judge Sutin. One claim is that the witness Johns was not qualified to express an opinion as to the cause of the explosion. Another claim is that the plaintiff was not qualified to testify concerning penetration of the weld that failed. The record in this case shows that the testimony of Johns and plaintiff was admissible under Evidence Rule 701. Jesko v. Stauffer Chemical Company, 89 N.M. 786, 558 P.2d 55 (Ct.App.1976).
2. Defendant’s argument concerning the A.S.M.E. Standards is that, at the time of the explosion, the Standards had not been adopted in New Mexico. Whether or not adopted in New Mexico, relevancy of the Standards was established by testimony that the Standards were used by defendant in manufacturing the tank in question.
3. I agree with defendant that the method of interjecting insurance into this case goes beyond the facts of prior New Mexico cases; I have found no New Mexico case where plaintiff interjected insurance by questioning his own witness on direct examination. As I read Evidence Rule 411, the ■ admissibility of testimony which informs the jury of insurance coverage depends on relevancy, and not on whether the testimony is elicited on direct, cross or rebuttal.
I disagree with Judge Sutin’s comment that Hartford Insurance Group was the real party in interest. There are simply too many variables in the relationship between-insurer and insured to make such a statement. Testimony identifying a party’s insurer does not permit an inference that the insurance covered the event in question, or that the insurer would pay all or part of a judgment entered against the insured party. Whether one is a real party in interest depends on the facts, and a reference to an insurance company, without more, is insufficient to establish the facts.
In permitting the identification of Hartford Insurance Group as an insurer of defendant, the trial court did not abuse its discretion. MacTyres, Inc. v. Vigil, 92 N.M. 446, 589 P.2d 1037 (1979). The interest of DiSylvester, the person who heard Smith’s “bad seam” remark, was relevant in determining whether Smith made the remark and in determining the credibility of DiSylvester, the person who testified the remark was made. It is unnecessary to decide whether this interest, standing alone, was sufficient because there was more. In cross-examining the personnel manager of plaintiff’s employer, defendant justified questions concerning workmen’s compensation “in that Montgomery Ward is the subrogated insurance carrier . . . .” In successfully objecting to portions of Smith’s deposition, which plaintiff sought to introduce, defendant was able to leave the inference with the jury that DiSylvester was “a man from Montgomery Ward.” The trial court could properly allow plaintiff to correct the false impression that defendant had placed before the jury. See State v. Razan, 90 N.M. 209, 561 P.2d 482 (Ct.App.1977). There was no abuse of discretion in permitting the identification of the insurer because of the combination of DiSylvester’s interest and the false impression left with the jury as to DiSylvester’s position in the case.
4.Judge Sutin discusses defendant’s contention that plaintiff’s attorney denied defendant a fair trial by deliberate and prejudicial remarks. A related contention of defendant, not discussed by Judge Sutin, is that the conduct of the trial judge deprived defendant of a fair trial. Defendant did not object to some of the items on which he relies. Defendant takes some of the items out of context. A review of the record shows an obstreperous attorney for defendant who provoked plaintiff’s attorney into giving as well as he got. There were times when the attorneys were so occupied with arguing with one another that they were slow to heed the trial court’s admonition to desist. The details of the various arguments between counsel, the interruptions of counsel, and the objections made to the trial court need not be reviewed. The record shows that more of the offending was by defendant’s counsel than by plaintiff’s counsel. The record shows the trial court never abdicated its function to keep counsel in line; rather, the record shows the trial court was alert to the problems caused by counsel and worked at the job of keeping control of the trial. Defendant’s claims of being denied a fair trial are meritless.
5. There is evidence of special damages consisting of past and future medical expense and lost earning capacity figured on a 10.9-year work-life expectancy. The special damages totaled $115,709. At the time of the accident, plaintiff had a life expectancy of 21.8 years. At the time of trial he was totally incapacitated from work; he has a severe limitation on his ability to walk, a 58 percent hearing loss, impairment of speech, severe headaches and almost constant pain. These residuals came about after injuries to the skull, neck and low back. The evidence does not permit this Court to hold the damages were excessive as a matter of law. Gonzales v. General Motors Corporation, 89 N.M. 474, 553 P.2d 1281 (Ct.App.1976).
6. Defendant contends that two instructions were erroneous, that certain exhibits were improperly admitted, and that there was cumulative error. I agree with Judge Sutin that these contentions are not sufficiently meritorious to require discussion.