Carr v. Florian

• Decision Date: 19 February 1934
• Docket Number: Civil 3387
• Parties: ALBERT B. CARR, Appellant, v. IVY A. FLORIAN, Doing and Transacting Business in Phoenix and Maricopa County, Arizona, Under the Style and Fictitious and Firm Name of BARKER BAKERY, Appellee
• Court: Arizona Supreme Court

29 P.2d 728

43 Ariz. 149

ALBERT B. CARR, Appellant, v. IVY A. FLORIAN, Doing and Transacting Business in Phoenix and Maricopa County, Arizona, Under the Style and Fictitious and Firm Name of BARKER BAKERY, Appellee

Civil No. 3387

Supreme Court of Arizona

February 19, 1934

APPEAL from a judgment of the Superior Court of the County of Maricopa. Dave W. Ling, Judge. Judgment affirmed.

Mr. H S. McCluskey, for Appellant.

Messrs Ellinwood & Ross and Mr. Norman S. Hull, for Appellee.

OPINION

LOCKWOOD, J.

Albert B. Carr, hereinafter called plaintiff, brought suit against Ivy A. Florian, doing business under the name of Barker Bakery, hereinafter called defendant, for damages which plaintiff alleged he had received as the result of a collision between an automobile in which he was riding and one operated by an employee of defendant. The case was tried to a jury, which returned a verdict in favor of plaintiff in the sum of $1,500. Defendant was satisfied withe the judgment, but plaintiff was not, and, after a motion for a new trial had been made by him, the latter appealed.

There are two assignments of error, but they are based upon the same legal proposition, which is that the amount of damages awarded by the jury was so inadequate as to show they were actuated by passion or prejudice, or else judice, or else that they misapplied the law or disregarded the evidence. It is contended by plaintiff, first, that certain actions of the trial court were such as to prejudice the jury against him and, second, that the evidence, taken in the strongest manner on this point in favor of defendant, as of course it must be under the verdict of the jury, shows conclusively that the amount of damages awarded him was utterly inadequate to compensate him for the injuries which he sustained. There is no question but that the verdict of the jury established conclusively that defendant's employee was guilty of negligence which caused an injury to plaintiff, nor does defendant deny this. The appeal is solely as to the amount of damages awarded.

When the case was called for trial, defendant's counsel urged that it be consolidated with another case against the same defendant, and arising out of the same collision, in which Floyd Medlock was plaintiff, under section 3804, Revised Code 1928. This motion was made orally and without notice to plaintiff's counsel, and in the presence of the jury panel. Plaintiff's counsel did not object to the manner of the motion, or to the fact that he had been given no notice thereof, nor did he ask that the panel be excluded during the discussion of the motion. He did, however, object most strenuously to the consolidation. The court, after listening to the argument for a short time, ordered that counsel for Medlock be brought into court, and that he be also heard upon the matter. When the latter arrived, he also objected to the consolidation, announcing that he was not ready for trial, and the court, after some discussion, the full details of which do not appear in the record, announced that the motion for consolidation would be denied. It is urged that this proceeding in the presence of the jury panel prejudiced it against the plaintiff. We are at a loss to see how it could have any such effect. Had plaintiff been forced into a consolidation against his wish, there might perhaps be some merit to his contention, but the court, without, so far as the record shows, making any remark in regard to the merits of the case, andwithourt any such remark being made by any of the counsel engaged in the discussion, ruled in favor of plaintiff's contention. There was no error in this action.

We then consider whether the evidence was such that upon any reasonable view thereof a jury would be justified in fixing the amount of damages sustained by plaintiff at not exceeding $1,500. The evidence bearing upon the extent of plaintiff's injuries may be divided into three classes First, his own testimony; second, that of the medical witnessesl His own testimony; second, that of those witnesses who saw his conduct at the time of and after the accident; and, third, that of the medical witnesses. His own testimony as to the extent of his injuries, if believed by the jury, would require far larger verdict. The undisputed evidence of an impartial, disinterested, and unimpeached witness may not arbitrarily be disregarded by a jury, when nothing in the circumstances casts suspicion thereon. Otero v. Soto, 34 Ariz. 87, 267 P. 947. But we think human experience is such that a jury is not required, as a matter of law, to believe the testimony of so interested a party as a plaintiff in a personal injury case. It appears from the evidence of several disinterested witnesses that the car in which plaintiff was seated was moving at the rate of about twelve miles per hour when a delivery truck owned by defendant backed into it, striking its left rear fender a blow severe enough to...