Fike v. Grant

• Decision Date: 24 February 1932
• Docket Number: Civil 3070
• Parties: VOLNEY M. FIKE and SABINA IRENE FIKE, His Wife, and VOLNEY M. FIKE, Jr., Appellants, v. MARY GRANT, Appellee
• Court: Arizona Supreme Court

8 P.2d 242

39 Ariz. 549

VOLNEY M. FIKE and SABINA IRENE FIKE, His Wife, and VOLNEY M. FIKE, Jr., Appellants, v. MARY GRANT, Appellee

Civil No. 3070

Supreme Court of Arizona

February 24, 1932

APPEAL from a judgment of the Superior Court of the County of Maricopa. Joseph S. Jenckes, Judge. Reversed and remanded.

Mr Herman Lewkowitz and Mr. C. H. Young, for Appellants.

Mr Frank H. Lyman and Mr. Samuel C. Jefferies, for Appellee.

OPINION

McALISTER, C. J.

Mary Grant brought an action against Volney M. Fike, Sabina Irene Fike and Volney M. Fike, Jr., for damages for injuries suffered by her as a result of an automobile accident which occurred on October 17, 1929, in Phoenix, Arizona. She recovered judgment in the sum of $5,000 and from it the defendants appeal.

The car was being driven at the time by Volney M. Fike, Jr., a young man seventeen years of age and a son of his co-defendants Volney M. Fike and Sabina Irene Fike. It was alleged and the jury evidently found that the injuries suffered by the plaintiff resulted from the unlawful and excessive rate of speed at which the car was running. The record discloses that the car was the property of Irene Fike, a sister of Volney M. Fike, Jr., but was used part of the time by the parents as lessees in connection with their business at Third and Jefferson Streets, and that on this particular evening, somewhere near 8:30 or 9 o'clock, it was driven away from this place by Volney M. Fike, Jr., but whether on a mission for his parents or for himself the evidence is conflicting. However, in view of the instructions of the court that if he were directed by either of his parents to go on an errand for them, they would be liable, but in case he used the car on business of his own without permission from them, they would not be, the verdict of the jury is conclusive on that proposition and the appeal must be disposed of upon the theory that he was at the time on a mission for his parents.

There are several assignments but none of them attack the finding that the injuries were caused by the negligence of the driver or that he was at the time on an errand for his parents. The principal contention is that the fact that liability insurance was carried on the car was brought to the attention of the jury by the testimony of one of appellee's witnesses and through no fault of appellants and that this constituted error so prejudicial that it requires a reversal of the case. It appears from the testimony of Helen Grant, daughter of appellee, that on the morning following the accident she went alone to appellants' place of business and had a talk with them and that at this point she was asked by her attorney whether she talked about the accident, whereupon the following took place:

"A. Would you like to know what I asked them?

"Q. You may tell all that was said. A. I went for the purpose of asking Mr. and Mrs. Fike --

"Q. Just a minute. Speak a little slower and talk to the jury. A. I went to the Fike's place of business to inquire about the insurance on their car and Mr. and Mrs. Fike --

"Q. Was that all you asked them? A. No."

Nothing more was said by her concerning insurance but she was questioned further relative to other phases of the case and it appears from this testimony that two days after the first visit she called again at appellants' place of business and that while there she and Mrs. Fike had a conversation relative to the car and the purpose for which it was being driven at the time of the accident. At the close of her testimony appellants' counsel moved, in the absence of the jury, that due to the fact that the question of insurance on the car had been brought into the case a mistrial be declared but this was denied, though the testimony of the witness, Helen Grant, as to what was said on her first visit to appellants' place of business was stricken on their motion and the jury instructed upon its return to give it no consideration whatever, the attorney for appellee especially agreeing thereto. The court made a further effort in its charge to the jury to cure any injury that might have resulted from this testimony. After telling it generally not to travel outside the evidence to determine any facts in the case or anything relative to the damages that might be allowed it directed in the following language particular attention to the matter of insurance:

"There was some evidence which was stricken out in this case as you probably recall, a statement made by Miss Helen Grant, the daughter of the plaintiff; it was stricken out as a voluntary statement by her that she went down to talk to these people about their insurance. That is a question which never should be injected into a case of this kind. There is no evidence in this case that these defendants carried any insurance and that must be eliminated entirely by you in the consideration of this case. I think I may say if there was any insurance in the case it was not carried by these particular defendants so that should be entirely eliminated."

The owner of the car, Irene Fike, it appears from a statement the court made out of the presence of the jury, carried insurance on the car but she was not a party to the action, and the only intimation or suggestion the jury had on this subject was in the testimony of Helen Grant and the implication that might be found in the instruction that there was no evidence in the case that the defendants, Mr. and Mrs. Fike, carried such insurance. However, these two statements, appellants contend, led the jury to believe that there was liability insurance on the car and though carried in the name of a member of the family other than the defendants could and would be used to satisfy any judgment that might be returned against them. This, of course, was not the legal situation, but due...