Tavárez v. San Juan Lodge Number 972

68 P.R. 681
CourtSupreme Court of Puerto Rico
DecidedMay 7, 1948
DocketNo. 9621
StatusPublished
Cited by2 cases

This text of 68 P.R. 681 (Tavárez v. San Juan Lodge Number 972) is published on Counsel Stack Legal Research, covering Supreme Court of Puerto Rico primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tavárez v. San Juan Lodge Number 972, 68 P.R. 681 (prsupreme 1948).

Opinion

Me. Justice Marrero

delivered the opinion of the Court.

For several years the defendant, San Juan Lodge No. 972, Benevolent and Protective Order of Elks, used to hold, on Friday of each week, bingo parties in the building which constitutes its local domicile, situated in Nereidas Ave., San-turce. As admission fee in connection with those parties it charged $1.25 per person, and retained 25 per cent of the total proceeds thus obtained in order to raise funds with which to give parties to the members of the armed forces, to cooperate with institutions like the Boy’s Scouts, Milk Stations, Boy’s Town, American Red Cross, and Cancer League, to defray the expenses usually incurred in such bingo parties, and to improve its physical plant. In front of the above-mentioned building there is a concrete roadway with a width of about 14 feet, having the form of a semicircle or semi-ellipse, which starting on the sidewalk near the western boundary of the lot passes underneath the marquee of the building facing Nereidas Avenue and ends in the same sidewalk, at the left boundary of the building. Between said concrete roadway and the sidewalk there is a comparatively small space, also having the form of a semiellipse, and which is divided in the center by a second roadway located at right angles and leading from the said sidewalk to the marquee. The space thus divided is from % to 1% inches higher than the sidewalk. Along its border it has a small concrete curb raised at the above-stated height and on the day hereinafter referred to it was devoid of grass or flower plants, it had no [684]*684hedges alive or dry, or benches, sunshades, or any signpost indicating that the defendant prohibited passage over it. It was not covered with cement either, and the soil which it contained was wholly sandy. It has been designated as a grassplot (“reata”) by the defendant.

On the evening of Friday, September 10, 1943, the plaintiff Elisa Tavárez, widow of Storer, accompanied by her friend Carmen Henares de Denton, came in the latter’s automobile to defendant’s premises for the purpose of attending, as she had done on other occasions, the bingo party which was being held there. Upon arriving, Mrs. Denton parked her automobile on the semicircular roadway already described, near the right-hand end of the marquee. It was about eight o’clock and immediately they went to the lower story of the building, where they joined the bingo party, together with 800 or more persons who had come there with a similar purpose. When the party ended, between 10:30 and 11:00 o’clock at night, the plaintiff and her friend, as well as the other persons who were there, many of whom had arrived since 5:30 p.m., tried to get out quickly by the two front doors of defendant’s building leading to the Avenue. Upon reaching her automobile Mrs. Denton occupied the seat near to the steering wheel, in the left front part of the vehicle. As at that moment there were numerous persons and several other automobiles on the roadway, the plaintiff, in order to reach the front seat on the right side of her friend, decided to go around the vehicle. Accordingly, she started to walk on the semicircular vacant space above described, with such bad luck that she thrust her right leg into a small hole in the ground, a little over 20" in depth, which contained the main water valve. The plaintiff fell to the ground; but she was promptly picked up by several persons and placed in the back seat of her friend’s automobile. She was then taken to her home where she was confined to her bed for some time. By reason of the injuries received she brought an action for damages against the San Juan Lodge No. 972, Benevolent and [685]*685Protective Order of Elks. After the case was tried on the merits, the District Court of San Juan sustained the complaint and adjudged the defendant to pay the total sum of $2,017, including $250 as attorney’s fees. Feeling aggrieved by that decision the defendant appealed, and in its brief it has assigned seven errors which, we will discuss in the course of this opinion.

Appellant first contends that the lower court committed an error of law in not admitting evidence regarding the use of the “reaia” or grassplot which the plaintiff crossed. Such an error is nonexistent. In connection with the so-called grassplot, Mrs. Denton was asked by defendant’s attorney: “For what do you think that place in the premises is used?” Plaintiff’s attorney objected and the court sustained the objection. We do not see, however, how the defendant could have been prejudiced by this action of the lower court when subsequently the same witness was asked if there was any grass planted within that small place and she answered in the negative, and also when in connection with that same question Rafael Bird, Secretary of the defendant, stated that the Elks used that grassplot to plant grass. Ordinarily, a witness should testify only as to facts that are personally known to him and he should not be permitted to state his views or opinion. The question put to the witness was evidently inadmissible, and therefore it was not error to refuse to allow the incident to be reported, as established by Rule 43(c). The evidence was clearly inadmissible.1

The defendant next urges that the district court erred in permitting a mere nurse to testify regarding medical questions of a technical character. Natividad de Jesús testified that she is a graduate nurse and that on the morning [686]*686of September 11, 1943, sbe was called to attend the plaintiff; tbat sbe found ber in bed and tbat sbe saw that sbe had a serious contusion and laceration on the right leg, from the knee down. Indeed, we do not see why this witness, which was experienced in this field, could not testify regarding things so elemental as contusions and lacerations. As we stated in Yordán v. Ríos,, ante p. 241, “Any incidental reference in technical terms used by the plaintiff, such as the injury in the ‘tibia’ swelling, pains in the tendons, and the use of ‘diathermy,’ are so well known and so widely used that it does not mean that only an expert should have used them.” Moreover, the plaintiff also introduced as a witness Dr. Manuel Pavía Fernandes, and he corroborated the testimony of the witness De Jesús regarding the injuries received by the plaintiff.

The defendant next urges the lower court erred in admitting evidence regarding a supposed contract of insurance, (a) beacuse this was not a question at issue and (6) because it involved a carbon copy which was not adequately identified and which was introduced with the only purpose of showing that there existed an additional source of recovery. "When the evidence for the plaintiff was being introduced, Attorney Antonio E. Simonpietri took the witness stand and stated that he was the manager of the Department of Claims of the Maryland Casualty Co. Upon being asked whether that company had any business relations with the defendant, the latter objected to the question and the court admitted the testimony. Subsequently an insurance policy was offered and admitted in evidence, tending to show that through said policy the defendant had sought to protect itself against the risks arising from accidents similar to the one met by the plaintiff. Oral and documentary evidence to that effect was clearly irrelevant. Whether or not the defendant was insured, it did not increase or decrease its liability. For example, if a person who operates a vehicle injures a pedestrian, his liability will depend upon the [687]*687attendant circumstances and not on whether he is insured or not.

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Cite This Page — Counsel Stack

Bluebook (online)
68 P.R. 681, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tavarez-v-san-juan-lodge-number-972-prsupreme-1948.