Northern Arizona Supply Co. v. Stinson
238 P.2d 937
Ariz.
1951
Check Treatment

*1 238 P.2d 937 SUPPLY ARIZONA

NORTHERN v. STINSON.

CO. et al. CO. ARIZONA SUPPLY

NORTHERN OLSON et al.

et al. v.

No. 5518. of Arizona. Court

Dec. 1951.

Rehearing Jan. Denied

juries wife as a result of a suffered collision between driven the wife a car belonging the Northern Arizona and one Company Fryberg- Supply driven H. J. er, employee. Olson, guardian an Helen *2 litem,' per- damages ad also for for asked injuries by sonal suffered Cheves Virginia Cheves, Allen her minor children who in her were car at the time of the accident. passenger car, A in the Olson Alice Stin- son, complaint against also filed a the com- pany employee praying damages and its for incurred a result of she occa- by sioned the accident.

The actions were consolidated for trial jury. Liability and tried the de- by stipulation fendants admitted was filed court, with the and the be issues to by jury tried amount of dam- were ages plaintiffs by that the several suffered accident. reason last of the On the afternoon a short was taken and record recess shows again p. court was session at 4:00 During one m. this recess Stevenson, of Flagstaff, & McQuatters engaged in this sitting Foil, D. A. appellants. for president of company, the defendant in a Cox, Phoenix, for Alice Stin- Cox & Foil testified conversation. under oath that son. import following of that talk: Phoenix, Tenney, for Helen W. Carl together sitting “We chairs out al. Olson et there, discussing possibility of him Low, maybe up to Show coming starting a' CONCINI, DE Justice. business, got through and after we with remark, passed Olson, Robert wife he what he Olson Helen W. know, both cars complaint in the trial like to covered husband, in- filed a surance, I him I personal and told did for know. asking

Ill tran- exact words that After court had examined Foil have forgotten the companies Bulson, appellees said, ‘All then moved for spired then. Then I insurance,’ judgments jury. on At the verdicts of the traveling cars cover appellants this time transpired.-” counsel for for the all that and that is first time “on moved a mistrial shows, the first the record Insofar grounds improper conduct of the to the trial called above was time that before the case was submitted to the after 4:35 sometime attention court’s for deliberation.” The trial court denied jury retired to m., when the p. since appellants’ motion and directed that jury returned with a verdict. reach judgments on the granted. verdicts be A p. during m. at Sometime 5 :40 the verdicts motion for a ap- ap- minutes, counsel for five hour and pellants and was denied the trial court. to the court’s attention pellants called Appeal to this court then followed. juror and Foil. Appellants present eight assignments of following: record shows opening Assignments error in their brief. reported “It court: four relate trial court’s one the defendants by the Court appellants’ motions action in had a Foil conversa- A.D. trial for the mistrial and reason that Bulson, dur- Edgar juror named tion with *3 juror the prejudicial of was the misconduct sub- was case before of this the trial ing and the Northern Supply denied Arizona ** *. jury, the mitted to Company and H. a fair and J. reported to the court is further “It impartial Assignments trial. five through at a arrived jury has now the eight concern themselves with award by the the receive the Court intention of the is jury plaintiffs, to each of the the four testimony from D. then receive and that each award “is jus- excessive and not Bulson, under Edgar juror, the Foil A. and by evidence tified and is contrary to purpose conversation as to this oath the law”. not miscon- of whether or consideration of question first to be answered is parties part and had on the of said duct was whether defendants denied a fair and parties pun- be should whether or said impartial trial? contempt and a mistrial declared. ished by appellants cases cited Arizona are objections, dictate them any you want “If proposition authority that it is im- record.” into negligence personal in a case for proper property either response inject no and There opened session to of carrying liability and side jury. In insurance. all of these cases the the verdicts exist- receive 112

ence of insurance raised highly fault these inflammatory prejudicial and plaintiff. These cases are Blue statements jury been Bar Hudspeth, Taxicab & Transfer Co. v. whole there question but be what a 287, 246; 25 Ariz. Gold P. Tom Reed granted. new trial would have been Does Morrison, 281, Mines Co. 26 Ariz. 224 P. only v. juror the fact that one con- thus 822; Grant, Fike v. P.2d 39 Ariz. make taminated them innocuous? We 242; Motors, Inc., Consolidated v. Ket right think not. constitutional to an cham, Ariz. 66 P.2d 246. impartial jury up- cannot be made to hinge jurors prejudiced. number of on the thus agree appellants’ We further with right There is no more sacred than the brief, statement in opening viz.: “The fair right to a and trial. There provided by rule of law these cases wrong grievous is no more than the nega- injection- into evi right. Nor can such miscon- tion liability of a defendant’s insurance dence by the State’s contention that be cured duct coverage prejudicial requires and a mis anyway by have resulted a conviction trial, reversal, or may the case strength reason of the State’s case. be,- is without if defendant fault one ballot Although but was taken the matter is promptly called Court’s verdict, arriving at its still that ver- (Emphasis attention.” ours.) unanimous. possible dict had be It is agree ap however with We cannot improperly without information received, pellants were without fault. Mr. juror might Cora Seitz have voted acquittal.” Foil, president of the de D. A. owner corporation, made fendant The instant respect case is different in companies “All cover their juror that requiring verdict; to not be- unanimous insurance.” traveling cars He jurors civil case need nine talking with a shouldn’t Regardless however, agree. of that if all especially of the trial the course during it, president about the case in he not talk about should corporation owner him- - say all that “All respects, least of com telling them self on the witness stand or carry insurance.” panies otherwise, it would not excuse the defend- (cid:127) State, v. ant because own Whitson 65 Ariz. its witness case of about *4 822,825,this court set aside a which it now situation seeks to 181 P.2d avoid. grounds on the do not one of While we excuse the guilty of for verdict misconduct, yet told of the defendant’s bad his actions did pre- not former state of his resi- vent defendants from in the a fair and reputation case: any from said “Had but rather if Quoting, prejudice dence. arose : “ ** * Chambers, it com- this in was the fault of defendant In discussion juror, pany’s president talking Appellees’ attorneys in were notified complain. Appellants’ happened, and it cannot to what had be heard of this briefly stated that them Foil told advantage of its If take a defendant can he, Foil, had the wit- incident before taken plaintiff own they get did ness stand but that adjudicated until never have his case complete story full and it after the until satisfactory the defendant. to -was ”* * * evidence all in. judicial administration procedure in Such a appellants deny foregoing do not is untenable. reply but answer in their brief follows: Court, in the case The Texas submit that “We the statement facts Campbell, Cigar Tex. Co. v. Finck preceding Appellants’ Opening Brief is cor- 759, 761, a 133 S.W.2d said: “It is rect; every appearing there- jurisdiction well settled rule this record, supported by in is and that it to inform the de is error unnecessary bring has in extraneous damages per in an fendant action matter to bolster the statement of facts in protected by indemnity sonal present order to a fact situation justifying * * * rule insurance. But that no appeal.’ application defendant, when the or one of witnesses, voluntarily brings his such in However, assuming that counsel for jury, formation and it is not appellants did not learn of the incident any plaintiff fault of the or his until the matter had been submitted to the * * * attorneys. exception jury, they still did not move for mistrial general not recognized, rule the de objections or make before judge power fendant have it within received the verdict. Before he received bring about mistrial in all cases judge verdict the specifically admon plaintiff would guard be unable to against you them ished as follows: “If (to want it.” objections, make) any dictate them into attempt

Appellants record.” avoid their mis- asking for take because of objections. appellants no Fryberger. H. J. this case admitted lia- employee an the defendant com- bility. issues were the pany. represented The same counsel plaintiffs. Counsel submitted the defendants. hope jury in the doubt of a appellees assert Counsel brief After considering the small ver- during a judge discussion with the verflict. following place: took high in chambers too moved trial. dicts *5 114 “ * * * rule And if there is is: laxness should not be rewarded. The trial cases,

to he such should a mistrial court prejudicial did not commit error or prejudicial come incident is when dis- abuse its denying discretion in defendants’ covered and determined that motion for a new trial.” trial integrity of the has been de- answer, question second to based stroyed. given Here the court was no on the last assignments error, four inquire into opportunity alleged to whether the verdicts are excessive? misconduct, any prejudice nor to remove After a careful reading of the tran Having taken from it. its chance resulting script evidence, we believe the evidence failing of the on the verdict sustains case, the verdicts in wit: spoken, speak it should have we will Helen W. Olson $2,000. court, uphold- finding of the not disturb ” Virginia 9,500. * Cheves * * integrity of verdict. Allen 1,000. Cheves Ry. Morgan, Cent. Co. 129 v. Ark. Arkansas Alice Stinson 5,500. 67, 195 S.W. Judgment affirmed. question granting a trial new On the juror this court improper conduct of a STANFORD, PHELPS and LA Miner, 109, Ariz. v. 191 said in Jacob PRADE, JJ., concur. “ * * * of the P.2d 736: view was unanimous the verdict fact that UDALL, (dissenting). Chief Justice judge, by trial experience learned opinion I am of the learned trial trial, for a de- motion new court abused its discretion in not granting resulted, prejudice had that no termined either defendants’ motion for a mistrial or disposed ruling. his not to disturb we are for a hence I am in favor of ruling; our i. factor enters into Another reversing judgments with directions to affidavits estab- their e. the defendants grant a new trial. juror of the visit of they lish juror my that when the Bul- view trial of the of before the complained question insurance the asked son yet failed to re- was concluded case integrity done and the damage was they Evidently court. port the same destroyed. subsequent trial was ver- juror’s upon effect the gamble chose to thereby vitiated and irregu- dict verdict, on a might have inspection larity not be cured what the first time in adverse it was after might given. answer Foil The apprised for a motion their inescapable ference seems juror’s the court (and at that time make jury’s Such probably desired to overturn effort going entirely information our make) did later use of the rules outside some the facts. official in the consideration of record. obtained I do While See 799. Sec. C.J. upon majority The fact relies our yet am not excuse Foil for misconduct Miner, decision in v. of Jacob he would enough naive believe that *6 supra, dif- merely our tends accentuate angle— intentionally insurance the disclose the manifestly appears from ferences. against decidedly which his inter- was so attorneys de- facts in case the on predicate est—as for a later a mistrial liberately gamble on chose to the verdict satisfactory to them. if the verdict juror’s apprize the court a by failing to culprit To me the in the real well aware they were of which misconduct agree with offending juror the and I cannot concluded, in whereas the trial had before majority that defendants the the case, a is not scintilla the instant there which seek about the situation in record that competent evidence

to avoid. of the conversation between he, urging in Defendant had until after and Foil blameless, to a being was entitled (cid:127) jury. As I read been submitted to the trial or mistrial met in court with is a were transcript, counsel rep- “the same counsel reporting the in the act brings resented defendants”. me both This had reached reported bailiff point disagree to the other on which I Whereupon court announced a majority. saying in effect is court receiving its intention of first precluded that both defendants are be- incident which investigating promptly failure to of their counsel’s cause being in offenders ultimately resulted verdicts mistrial before the move The court hav- contempt of court. held in returned, implication being that it up mind course its as from purposely refrained mak- counsel had much pursue.'there was not intended to gamble on a motion order ing such a un- do and think it is that counsel could my opinion satisfactory verdict. them with dereliction charge fair to sup- without an unwarranted inference is duty moving there in not then and reporter’s transcript, and in- port in the reality If in was the. situa- mistrial. such court, to me that the surprising quickly deed judge would tion the trial have decision, dignify by support its and this would doubtless sensed — opinion excerpt into an corporating principal basis formed —an as to what their are, brief plaintiffs’ motion for mistrial. We how- from judge’s in the cham- allege said not left doubt on that ever, score counsel patent January 20, violation order of This I submit its bers. upon the “of- solely decision

bottoms its party”

fending rule. dissent that I

It is for reasons these suspicion in this case

it seems to me upon fair and been cast justice.

administration

238 P.2d v. BROWN.

SANDERS

No. 5379. Arizona. Court of 17, 1951.

Dec.

Rehearing Jan. Denied