Forquer v. Pinal County

• Citation: 22 Ariz.App. 266,526 P.2d 1064
• Decision Date: 03 October 1974
• Docket Number: No. 1,CA-CIV,1
• Parties: Robert C. FORQUER, Administrator for and on behalf of the Estate of A. Merrill Russell, Deceased, and the surviving children, Betty Holt, Wanda Marchessault and David Russell, Appellant, v. PINAL COUNTY, Howard Duke Crisler and Jane Doe Crisler, husband and wife, and Coy K. DeArman, Sheriff of Pinal County, Appellees. 2164.
• Court: Court of Appeals of Arizona

Page 1064

526 P.2d 1064

22 Ariz.App. 266

Robert C. FORQUER, Administrator for and on behalf of the Estate of A. Merrill Russell, Deceased, and the surviving children, Betty Holt, Wanda Marchessault and David Russell, Appellant, v. PINAL COUNTY, Howard Duke Crisler and Jane Doe Crisler, husband and wife, and Coy K. DeArman, Sheriff of Pinal County, Appellees.

No. 1 CA-CIV 2164.

Court of Appeals of Arizona, Division 1, Department B.

Oct. 3, 1974.

Rehearing Denied Nov. 20, 1974.

Rosen & McGroder, Ltd., by David Neal Rosen, Phoenix, for appellant

Jack M. Anderson and John S. Schaper, Phoenix, for appellees.

OPINION

JACOBSON, Chief Judge, Division 1.

The sole issue on this appeal is whether the trial court abused its discretion in granting a new trial following a plaintiff's verdict in a wrongful death action based upon improper argument of plaintiff's counsel relative to damages.

Appellant-plaintiff, Robert C. Forquer, as administrator of the estate of A. Merrill Russell, brought an action in wrongful death on behalf of Mr. Russell's children against the appellees-defendants, Howard Duke Crisler, Coy DeArman, Sheriff of Pinal County, and Pinal County. Mr. Russell's death resulted from a head-on automobile collision with a car driven by Mr. Crisler, while Crisler was employed as a deputy sheriff of Pinal County. Mr. Crisler was proceeding to the scene of a drowning when his vehicle crossed the center line of the highway and struck Mr. Russell's automobile. During final jury arguments, plaintiff's counsel made the following comments:

'I'm going to talke to you about how the collision occurred and the investigation only, only because it is material on the issue of damages because this is a death case and in a death case you not only consider the injuries and damages that are sustained, but you have a duty to consider--and I'm quoting now from what the Court's instruction will be--award such damages which you deem fair and just with reference to the injury resulting from the death to each beneficiary having regard to the mitigating or aggravating circumstances attending the wrongful act.'

'Now, the way I see this case, I think it is about the most aggravated case I have ever run into or tried of liability. And it's not pleasant sometimes to say some of the things that I feel it is my duty to say, but I feel that I owe it to my conscience and I owe it to the Court because my job is to try to bring you the truth the way I think it was and that I think the evidence showed, and I owe it certainly to David to tell you that I think the police officer, Mr. Crisler, did not tell us the truth. I think that the police officer tried to influence that investigation to create a false story, a false police report.

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'Now, the reason I call these things to your attention is because I think it is aggravated--that there are aggravating circumstances when a Pinal County Sheriff's officer who has the public trust tries to mislead the highway patrolman who is trying to get to the truth of what happened that night. I think that is aggravating circumstance.

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'Now, that's why I talk about what happened because I think you have to consider in your verdict, if you agree, if you believe that the makes sense to you, you have to consider this a case of aggravated liability and one which, whatever your verdict is, you should consider a greater verdict because of the aggravating circumstances attending the wrongful act.'

After this statement was made, defense counsel interrupted the argument and at the bench objected on the grounds that what plaintiff's counsel personally thought about the facts of the case was improper argument. Defense counsel also stated: '. . . I want to make a motion for mistrial but no need to do it now if I may reserve the motion until after the arguments have been presented.' The court then responded: 'We'll reserve on this until later after argument.'

After the jury retired for its deliberations, but prior to its returning a verdict, defense counsel, in chambers, again moved for a mistrial and in addition to the ground stated in his objection at the bench, objected on the ground that plaintiff's counsel's argument would allow the jury to consider Crisler's alleged lying to the investigative officers as an element of punitive damages. The motion for mistrial was denied.

The jury subsequently returned a verdict in plaintiff's favor in the sum of $48,051.52, apportioning this figure as follows: $11,051.52 to the estate for hospital bills and burial expenses; $35,000 to David Russell, the deceased's 15-year-old son; and $1,000 each to two married daughters. The deceased was 72 years old at the time of his death and had a life expectancy of approximately 9 years.

Following entry of judgment, defendants timely moved for a new trial which the trial court denied. Prior to reducing the minute entry denial of this new trial to writing, the trial court on its own motion vacated its prior denial of the new trial and entered an order granting the new trial on the basis of plaintiff's counsel's comments during his jury argument. Plaintiff has appealed the granting of the new trial.

Plaintiff initially raises two procedural defenses to the granting of the new trial, the first being that defense counsel's failure to object to the jury argument on the grounds subsequently argued after the jury retired constituted a waiver of the right to object. Normally, failure to timely object to improper jury arguments constitutes a waiver of such error. Kelch v. Courson, 103 Ariz. 576, 447 P.2d 550 (1968). Moreover, grounds for objection not stated to the trial court are also normally waived. Sato v. First Nat'l Bank, 12 Ariz.App. 263, 469 P.2d 829 (1970). However, we are of the opinion that these normal rules of appellate review are not applicable to the procedural manner in which the matter was handled by the trial court. Here, defense counsel, during plaintiff's counsel's jury argument specifically objected to the argument and requested leave, which was granted, to present a motion for mistrial after the argument had been concluded. After the jury had retired, but before a verdict had been reached, defense counsel moved for a mistrial, setting forth the specific ground that plaintiff's counsel's argument allowed the jury to consider an improper element of punitive damages. This ground was again urged on the motion for a new trial.

We do not have here the basis for the rationale giving rise to the appellate review rules previously stated, that is, the trial court must be given the initial opportunity to correct errors, and a party may not lie in wait by determining what the jury's verdict will be before making objections. In this case, the trial court was fully informed of the grounds upon which defense counsel objected prior to the time the jury had returned its verdict and hence the grounds were properly preserved for presentation in a motion for new trial.

The second procedural defense raised by the plaintiff is that as the trial court initially...