Cavanagh v. Ohio Farmers Ins. Co., 2
| Decision Date | 15 May 1973 |
| Docket Number | No. 2,CA-CIV,2 |
| Parties | Estelle G. CAVANAGH, Appellant, v. OHIO FARMERS INSURANCE COMPANY, a corporation, Western Casualty and Surety Company, a corporation, United States Fidelity and Guaranty Company, a corporation, and Maryland Casualty Company, a corporation, Appellees. 1197. |
| Court | Arizona Court of Appeals |
Robertson, Molloy, Fickett & Jones, P.C., by Burton, J. Kinerk and Michael J. Meehan, Tucson, for appellant.
Chandler, Tullar, Udall & Richmond, by D. B. Udall, Tucson, for appellee Ohio Farmers Ins. Co. Lesher & Scruggs by D. Thompson Slutes, Tucson, for appellee Western Casualty & Surety Co.
Maupin, Wilson & Maud, by Oliver H. Maud, Phoenix, for appellee United States Fidelity and Guaranty Co.
O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, by Robert G. Beshears, Phoenix, for appellee Maryland Casualty Co.
This is an appeal by defendant Cavanagh from a declaratory judgment decreeing that the killing of her husband by Walter Burris was intentional and therefore the insurance companies were not liable upon their policies.
On August 11, 1970, Estelle Cavanagh, wife of the victim, filed suit against Margaret Burris, administratrix of the Estate of Walter Burris, alleging that she and her children were damaged by reason of Walter Burris' homicide upon Thomas W. Cavanagh. On November 23, 1970, Ohio Farmers Insurance Company, issuer of a farmowner's policy of insureds Walter and Margaret Burris, filed a declaratory judgment action against defendants Cavanagh, Burris, Western Casualty and Surety Company, United States Fidelity and Guaranty Company and Maryland Casualty Company. The defendant insurance companies had also issued liability insurance policies, naming Walter and Margaret Burris as insureds. Plaintiff prayed for judgment declaring whether, in light of policy exclusions for bodily injury caused by intentional acts of the insured, coverage was extended to the Estate of Walter M. Burris, and if so, the relative priorities of the several policies. All insurers denied coverage based upon exclusionary provisions in their respective policies for deliberate acts of the insureds. The case was tried to a jury, resulting in the judgment which is the subject of this appeal.
The events leading up to the killing of Mr. Cavanagh are substantially without dispute. That prior thereto, Mr. Burris had been hospitalized as a result of a horse kick which caused a blood clot in his leg. Dr. Hermon Price, Jr., a specialist in internal medicine diagnosed his condition as thrombophlebitis (an inflammation and clotting inside of the veins), and pulmonary embolism (a breaking up of the blood clots which travelled to the lungs thereby causing an insufficiency of oxygen to parts of the brain). There was some evidence that Mr. Burris might have been acting incoherently during his stay at the hospital because of the pulmonary embolism.
On the morning of the shooting, Walter Burris left the hospital over the objection of his physicians and returned to his ranch. Upon arriving he asked his foreman, Mr. Wilson, to drive him around to observe conditions on the ranch. They stopped several times to look at cattle and to check water tanks on the property, and stopped to chat with Mr. Dewitt Hummer, a friend and neighbor. Hummer testified that at the time of this conversation Mr. Burris was extremely poor in color--'just the color of a dirty sheet' and that although they had not seen each other for a long time, Mr. Burris did not talk to him and appeared disassociated from Wilson's and Hummer's conversation.
Following the conversation with Hummer, Wilson and Burris continued their drive and stopped to inspect a water tank. At this time Mr. Cavanagh came out of his house, located nearby, and approached them. Burris greeted Cavanagh and introduced him to Wilson. Thereafter Cavanagh made an accusation that one of the Burris cowboys had stolen a saddle and riding equipment from him. Burris stated that he didn't believe that the cowboy would steal, but agreed to go to the area where the men were working and find out if there was any truth to the accusation.
Wilson and Burris drove out to the area where the hands were working, Cavanagh following in another vehicle. After driving for approximately fifteen minutes, Wilson pulled the Burris vehicle to the side of the road and parked it; Cavanagh parked five or six feet behind the Burris vehicle. Wilson then walked to the top of a nearby hill to see if he could spot the workers. Seeing no sign of them, he returned to the bottom of the hill where he found the two men having words about the theft. Wilson suggested that they leave since Burris was getting tired. As Wilson and Burris were getting into the pickup truck, Cavanagh called Burris a 'lying, no good non-of-a-bitch.' Burris replied, 'I have never lied to you,' reached into the pickup truck, got a loaded shotgun, held it to Cavanagh's head and pulled the trigger. Wilson immediately grabbed the shotgun from Burris, ejected the shells and threw it into the bed of the truck. Wilson then told Burris that they had to get an ambulance for Cavanagh, and Burris responded, 'My God, what have I done?' Wilson testified that during this time Burris 'looked like he was just staring off into space.' Burris, later the same day, took his own life.
The principal issue on the lower court was whether Mr. Burris had committed this act while in control of his senses. The appeal involves numerous claims of error.
Appellant argues that distribution of peremptory challenges to the jury between plaintiffs and defendants was improper under Rule 47(e), as amended, Arizona Rules of Civil Procedure, and therefore prejudicial error was committed by the trial court. Rule 47(e), Ariz.Rules Civ.Proc., 16 A.R.S., provides:
The amendment changes the prior rule which required all parties on a particular side to join in each of four peremptory challenges, and made no provision for adverse interests on the same side of the case. The purpose of the amendment has been commented upon in the State Bar Committee Note (1968) to Rule 47(e):
'The provision that each case shall be treated as having only two sides is intended to forestall any contention that there may be more than two sides because of cross-claims or third party claims. . . .'
In its application of Rule 47(e), the lower court ruled that the defendants were entitled to six peremptory challenges, three to defendants Cavanagh and Burris and three to the defendant insurance companies; and, in accordance with the rule the plaintiff was also given six. The appellant claims that there was an improper division of sides because the sides were actually the insurance companies against Cavanagh and Burris even though the nominal division of plaintiffs and defendants was otherwise. 1
Appellant concedes that Rule 47(e) allows only two sides to a controversy but argues that 'sides' does not refer to plaintiff and defendant but rather to sides of the Actual controversy. She would have us interpret Rule 47(e) to read that where the actual controversy is known to be other than between the designated plaintiff and defendant, the sides should be identified in accordance with the actual conflict. Appellant points out that by ruling that plaintiff-insurer was in opposition to the defendant-insurers who were actually in opposition to the individual defendants, the insurance companies were provided with nine peremptory challenges while the individual defendants were provided with only three.
The exercise of peremptory challenges in civil cases is granted by Rule 47(e), and the rule controls. Moran v. Jones, 75 Ariz. 175, 253 P.2d 891 (1953). The meaning attributed to the word 'side' is the controlling factor in determining whether the trial court properly granted the peremptory challenges. In Moran v. Jones, supra, the court used 'side' interchangeably with plaintiff and defendant quoting from Corpus Juris Secundum as follows:
'. . . where there are several plaintiffs or several defendants, . . . All on one side constitute but one party and are entitled only to the number of peremptory challenges allowed a single plaintiff or defendant; . . ..' 75 Ariz. at 178, 253 P.2d at 892 (Emphasis added)
The court further noted the foregoing to be true in spite of several defendants or several plaintiffs being antagonistic or adverse in their positions.
The rule limits each case to two sides which necessarily are the plaintiffs and the defendants. No provision is made for the situation where the plaintiffs and some defendants are not adverse. The rule does provide for additional peremptory challenges where two or more parties on a side 'have an adverse or hostile interest . . . but each side shall have an equal number of peremptory challenges.' We are of the opinion that the trial court followed the rule and appellant's claim of error is without merit.
Upon arrival at the ranch house, 15 to 20 minutes after the shooting, Mr. Wilson made a statement of Jack Kabelli, to...
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