Taylor v. Southern Pac. Transp. Co.

• Citation: 637 P.2d 726,130 Ariz. 516
• Decision Date: 04 November 1981
• Docket Number: No. 15330,15330
• Parties: Dennis TAYLOR, surviving husband of Kathleen Taylor, deceased, Appellee, Cross-Appellant, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY, a Delaware corporation; Wilbur L. Biggerstaff, Appellants, Cross-Appellees.
• Court: Supreme Court of Arizona

Page 726

637 P.2d 726

130 Ariz. 516

Dennis TAYLOR, surviving husband of Kathleen Taylor, deceased, Appellee, Cross-Appellant, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY, a Delaware corporation; Wilbur L. Biggerstaff, Appellants, Cross-Appellees.

No. 15330.

Supreme Court of Arizona, In Banc.

Nov. 4, 1981.

Rehearing Denied Dec. 15, 1981.

Haralson, Kinerk & Morey, P.C. by Dale Haralson, Tucson, for appellee-cross-appellant

Evans, Kitchel & Jenckes, P.C. by Ralph J. Lester, Robert R. Mills, F. Pendleton Gaines, III, Phoenix, for appellants-cross-appellees

CAMERON, Justice.

On 6 February 1979, a jury returned a verdict in favor of the plaintiff, Dennis Taylor, in a cause of action alleging that the defendants, Southern Pacific Transportation Company and Wilber L. Biggerstaff, had negligently caused the wrongful death of Taylor's wife. The jury found Southern Pacific liable for $7,000 in compensatory damages and $200 in exemplary damages. At the same time, the jury found Biggerstaff not liable. On 6 April 1979, the trial court issued an order granting a new trial to Taylor against both defendants on all issues. The trial court based its decision to grant a new trial on the misconduct of defendants' attorneys, and on a finding that the verdict was insufficient and the result of passion or prejudice on the part of the jury. Southern Pacific appeals from the order granting a new trial and assessment of costs, and Taylor cross-appeals from the failure of the trial court to impose sanctions for misconduct on the part of counsel for Southern Pacific. We have jurisdiction pursuant to Rule 19(e), Rules of Civil Appellate Procedure, 17A A.R.S.

We must answer the following questions on appeal:

1. Was the trial court correct in excluding evidence of Taylor's remarriage?

2. Did defendants' attorneys' actions in questioning Taylor contrary to the court's order in limine constitute misconduct?

3. Did the trial court err in granting Taylor's motion for a new trial?

4. Did the trial court properly assess costs against the defendant?

5. Was it error not to impose sanctions on defendants' attorneys?

The facts necessary for a determination of these issues are as follows. On 2 November 1974, a collision occurred at a railroad crossing between a train and a car driven by plaintiff, Dennis Taylor, in which his wife Kathy was a passenger. The train was owned by defendant, Southern Pacific Transportation Company, and was being operated by co-defendant Wilber Biggerstaff. Kathy Taylor died as a result of the accident, and Taylor filed suit against the defendants for negligently causing the wrongful death of his wife. At the time of the accident, Dennis and Kathy Taylor had been married for approximately two months.

Before trial, Taylor moved for an order in limine to prevent the defendants from mentioning Taylor's remarriage. The motion was granted. Upon violation of this order, Taylor moved for a mistrial and for sanctions. Taylor's motion was taken under advisement.

The trial then proceeded through nine more days of testimony. Evidence was introduced through expert testimony to show the amount of damages Taylor would suffer throughout his lifetime as a result of the loss of homemaking services and income that the deceased would have been expected to contribute to the marriage. After six days of deliberation, the jury returned a verdict finding Biggerstaff not liable, but finding in favor of Taylor against defendant Southern Pacific for $7,000 compensatory damages and $200 punitive damages.

Thereafter, the trial court granted Taylor's motion for new trial against both defendants on all issues finding that the verdict was insufficient and the result of passion or prejudice because of misconduct by defense counsel.

Defendant's motion to reconsider the order for new trial was accompanied by affidavits from all but two jurors stating that they "had no information and drew no conclusion as to the plaintiff's marital status," and that it "played no part in * * * deliberations or judgment." The affidavits were stricken and the motion to reconsider was denied.

EVIDENCE OF REMARRIAGE IN WRONGFUL DEATH CASES

We must first consider whether the trial court erred in excluding evidence of "The great majority of the states hold that the limitation placed upon the City of Phoenix in connection with the trial of the case now under consideration was the correct ruling. (citations omitted) So far as we are informed, Wisconsin (citations omitted) and Mississippi (citations omitted) are the only states holding against the majority. Arizona's statutory measure of damages in a wrongful death action is found in A.R.S. § 12-613. In part, this section provides:

plaintiff's subsequent remarriage. Although this court has previously declined to express an opinion on the rule, State v. Stone, 104 Ariz. 339, 452 P.2d 513 (1969) and supplemental opinion, 452 P.2d at 518, the Court of Appeals has cited with approval the subsequent marriage exclusionary rule. State v. Cress, 22 Ariz.App. 490, 528 P.2d 876 (1974); Hing v. Youtsey, 10 Ariz.App. 540, 460 P.2d 646 (1969); City of Phoenix v. Whiting, 10 Ariz.App. 189, 457 P.2d 729 (1969). In affirming a decision of the trial court to exclude evidence of remarriage, the Court of Appeals stated:

'In an action for wrongful death, the jury shall give such damages as it deems fair and just with reference to the injury resulting from the death to the surviving parties who may be entitled to recover, and also having regard to the mitigating or aggravating circumstances attending the wrongful act, neglect or default.'

"One member of the Department participating in this opinion urges the Wisconsin and the Mississippi rule, but the majority of those participating in this opinion urge the majority rule. We hold that there was no "error in refusing to permit the disclosure of Mr. Whiting's remarriage. " City of Phoenix v. Whiting, supra, 10 Ariz.App. at 194, 457 P.2d at 734.

Arizona's wrongful death statute has not changed since Whiting, supra, and neither has the case law. Unlike statutes in other states that specifically allow for evidence of marriage to be introduced, see Fla.Stat.Ann. § 768.21(6) (c) (West) (1980 Supp.), our statute is silent on the issue.

Historically, the refusal to consider the surviving spouse's marital status in wrongful death cases has been attributed to three avenues of thought. One view is that damages should be calculated as of the time of death. See Comment, Remarriage and Wrongful Death, 50 Marq.L.Rev. 653 (1969). Another reason to exclude evidence of remarriage has been that the decedent's contributions relative to the contributions of the new spouse would be too speculative to calculate accurately. See e.g., The City of Rome, 48 F.2d 333 (2d Cir. 1930); Hightower v. Dr. Pepper Bottling Co., (La.App.) 117 So.2d 642 (1959). Lastly, and most often, it is advanced that the collateral source rule, which disallows evidence of payments to the injured party from other sources to be credited against the tortfeasor's liability, should be invoked to exclude evidence of remarriage. See D. Dobbs, Remedies § 8.6 (1973); see also Annot., 87 A.L.R.2d 252 (1963); J. Stein, Damages and Recovery § 250 (1972); W. Prosser, Law of Torts 930-31 (3rd ed. 1964). Simply stated, the collateral source rule requires that:

"Payments made to or benefits conferred on the injured party from other sources are not credited against the tortfeasor's liability, although they cover all or a part of the harm for which the tortfeasor is liable." Restatement (Second) of Torts § 902(2) (1979). See also, Michael v. Cole, 122 Ariz. 450, 595 P.2d 995 (1979).

The collateral source rule is most often applied in cases where an injured party recovers from a tortfeasor amounts for which plaintiff has already been compensated by his insurer. Evidence of these collateral payments is not admissible to show mitigation of damages and the tortfeasor will be barred from arguing that the plaintiff has already been made whole for his losses by his own insurance company. See Michael v. Cole, supra. The rationale for this rule is that simply because the injured party might have provided by contract for reimbursement of medical expenses, it should not be used to lessen the tortfeasor's liability. There should be no windfall for a tortfeasor because he injured an insured

instead of a non-insured. Likewise, we believe a person guilty of wrongful death should not benefit from the spouse's remarriage. But see Shields & Giles, Remarriage and the Collateral Source Rule, 36 Ins. Counsel J. 354, 357 (1969). Remarriage of the spouse before the lawsuit is over should not result in a windfall for the person who negligently caused the death of the previous spouse. To so hold might well encourage a surviving spouse not to remarry until after the lawsuit for wrongful death is settled, not necessarily a socially desirable result. We see no need to change the law in Arizona that a plaintiff's remarriage is not admissible in a suit for wrongful death.

MISCONDUCT OF DEFENDANTS' ATTORNEYS

Before trial and pursuant to Taylor's motion in limine, the trial court issued an order preventing the defendants from bringing up plaintiff's current marital status. The order read:

"IT IS FURTHER ORDERED granting plaintiff's oral motion in limine and ORDERING that the defendant not bring up the marital status of the plaintiff, until further Order of this Court."

On the first full day of testimony, defendant asked the following question of Dennis Taylor on cross-examination:

"Q * * * Now, are you implying that since Kathy's death you have done without homemaking services?"

Before the witness could answer and out of the hearing of the jury, the objection to the question was sustained. The court found that the question violated the pretrial order despite defendants' contention that the question sought to establish mitigation of damages and not the plaintiff's current...