Fulton v. Johannsen

• Court: Arizona Court of Appeals
• Writing for the Court: STEVENS
• Citation: Fulton v. Johannsen, 3 Ariz.App. 562, 416 P.2d 983 (Ariz. App. 1966)
• Decision Date: 25 July 1966
• Docket Number: CA-CIV,No. 1,1
• Parties: R. S. FULTON, also known as Bob Fulton, doing business as Bob Fulton Trucking Company, and William Earl Patterson, Appellants, v. Joyce JOHANNSEN, surviving widow of Arnold Johannsen, deceased, Appellee. 178.

Page 983

416 P.2d 983

3 Ariz.App. 562

R. S. FULTON, also known as Bob Fulton, doing business as Bob Fulton Trucking Company, and William Earl Patterson, Appellants, v. Joyce JOHANNSEN, surviving widow of Arnold Johannsen, deceased, Appellee.

No. 1 CA-CIV 178.

Court of Appeals of Arizona.

July 25, 1966.

Rehearing Denied Sept. 2, 1966.

Review Denied Oct. 18, 1966.

Trew & Woodford, by R. R. Woodford, and Evans, Kunz & Bluemle, by Donald R. Kunz, Phoenix, for appellants.

Kenneth Rosengren, Phoenix, for appellee.

STEVENS, Chief Judge.

Arnold Johannsen met his death on 4 December 1963. The motorcycle he was riding collided with a truck as the truck was proceeding from the easterly or north bound lane across Johannsen's westerly or south bound lane, at a point not near a street intersection. The jury awarded a verdict of $200,000 and judgment was entered accordingly after an appropriate reduction reflecting money paid pursuant to a covenant to not execute in relation to other parties defendant. The appeal presents issues relating to a claimed excessive verdict and claimed errors in instructions.

The Johannsens were married on 5 October 1954, and had lived in Arizona approximately five years next before the fatal accident. On the date of his death he was 29 years of age and Mrs. Johannsen was 25 years of age. Their four children were age 8, 7, 5 and 1. Johannsen had been steadily employed during his time in Arizona. For a number of years he worked the graveyard shift at an all night service station being the sole employee during most of the hours of this employment. Approximately three months before the accident he changed jobs taking a reduction in income, the change being made because the new employment afforded a greater opportunity to be with his family and also afforded a greater opportunity for advancement. His gross pay at the time of his death was $400 a month and he was due for a $25 raise on the payday next following his death. Both of his employers spoke highly of him. He was described as a fine family man and a good neighbor.

The action now under consideration was brought by the surviving widow on her own behalf and on behalf of the four surviving children, three sons and a daughter. The amended complaint did not allege negligence in general terms, it alleged seven specific acts of negligence, the seventh being last clear chance. The answer denied any negligence on the part of the defendants and set forth the defenses of sole negligence and contributory negligence. There was another major issue which was resolved by the trial court as a matter of law, this decision not being presented to us for review. Historically, this case is of interest in that it was the first jury case tried in the then new Superior Court Building.

In relation to claimed errors in instructions, the appellee urges that the court is not permitted to review the instructions which, on appeal, are claimed to be erroneous unless proper exceptions thereto were presented to the trial court. Rule 51(a) of the Rules of Civil Procedure, 16 A.R.S., is as follows:

'Instructions to jury; objection. At the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests. The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury, but the court shall instruct the jury after arguments are completed. No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objections. Opportunity shall be given to make the objection out of hearing of the jury.' (Emphasis supplied.)

The emphasized portion of the above quotation is an adequate statement of the legal principle involved. There are a number of Arizona cases on the subject. Illustrative cases are: Salinas v. Kahn, 2 Ariz.App. 181, 407 P.2d 120; 2 Ariz.App. 348, 409 P.2d 64 (1965); Kostolansky v. Lesher, 95 Ariz. 103, 387 P.2d 804 (1963); Michie v. Calhoun Bros. Livestock Transp. Co., 85 Ariz. 270, 336 P.2d 370 (1959).

In conjunction with Rule 51(a), we also consider Rule 59 relating to motions for new trial. Rule 59(c) is as follows:

'1. The motion for new trial shall be in writing, shall specify generally the grounds upon which the motion is based, and may be amended at any time before it is ruled upon by the court.

'2. Upon the general ground that the court erred in admitting or rejecting evidence, the court shall review all rulings during the trial upon objections to evidence.

'3. Upon the general ground that the court erred in charging the jury and in refusing instructions requested, the court shall review the charge and the rulings refusing an instruction requested.

'4. Upon the general ground that the verdict, decision, finding of fact, or judgment is not justified by the evidence, the court shall review the sufficiency of the evidence.'

Subsection 3 of Rule 59(c) must be read in conjunction with Rule 51(a).

An examination of the record which was made at the time of the settling of the instructions discloses that the plaintiff excepted to the refusal of the court to give two of the plaintiffs instructions, one of these being on the subject of last clear chance.

The defendants excepted to the giving of Plaintiff's Requested Instruction No. 1 which reads as follows:

'The plaintiff has alleged several allegations of negligence in the pleadings. It is necessary, however, for the plaintiff to prove only one of the allegations of negligence in order to sustain her case on that issue.'

In connection with this instruction, the record reflects that:

'Defendant objects to the giving of Plaintiff's Requested Instruction Number 1 because it does not include all of the elements required to be shown before a plaintiff can recover, and implies to the jury that if the Defendant was negligent in any way, that the Plaintiff is entitled to recover, which is contrary to the law.'

The defendants further excepted to the giving of Plaintiff's Requested Instruction No. 7 which reads as follows:

'A person who, without negligence on his part, is suddenly and unexpectedly confronted with peril arising from either the actual presence or the appearance of imminent danger to himself or others, is not expected nor required to use the same judgment and prudence that is required of him in the exercise of ordinary care in calmer and more deliberate moments. His duty is to exercise only the care that an ordinarily prudent person would exercise in the same situation. If at that moment he does what appears to him to be the best thing to do, and if his choice and manner of action are the same as might have been followed by any ordinarily prudent person under the same conditions, he does all the law requires of him, although in the light of after-events, it should appear that a different course would have been better and safer.'

The exceptions to this instruction urge that there was no evidence as to whether or not the deceased was faced with a sudden and unexpected peril or that the deceased exercised any judgment due to the appearance or the fact that the truck was 'momentarily blocking * * * (the) decedent's right-hand side of the highway'. There was a further exception to the court's refusal to instruct in relation to a matter which was resolved by the court as a matter of law, a matter not before us on appeal.

On appeal the defendants urge that the giving of the imminent peril instruction was error in that the principles of law involved apply to defendants only and not to plaintiffs. In support of this contention, they cite the case of Dobbertin v. Johnson, 95 Ariz. 356, 390 P.2d 849 [3 Ariz.App. 565] (1964). In our opinion, this case does not so hold. In our opinion the imminent peril instruction is one which aids the jury in determining the presence or absence of negligence, one which aids in evaluating the reasonable prudent person, whether it be the negligence of the plaintiff or the negligence of the defendant. While there could be no evidence as to the state of mind of the deceased in relation to exercising a choice, the evidence was such that the deceased had the opportunity to exercise a choice even though it may be that none of the alternatives were attractive.

The defendants urge that it was error to give Plaintiff's Instruction No. 1 in that with the specificity of the pleading of negligence, a recovery on behalf of the plaintiff must be within the grounds specifically plead. Hall v. Delvat, 95 Ariz. 286, 389 P.2d 692 (1964). This contention arises for the reason that in the opening argument to the jury the attorney for the plaintiff in outlining the issues referred to this instruction and then enumerated the seven alleged grounds of negligence including last clear chance. The argument of the plaintiff did not stress last clear chance. The argument on behalf of the defendants did not point out the absence of issues on last clear chance. A reading of the instructions and the arguments convinces this Court that this brief mention of last clear chance in the argument did not confuse the jury. There was no objection to the argument during the course thereof nor was a record made before the jury retired. Objections for the purpose of preserving questions of law are permitted in that Rule 51(d) is as follows:

'Interruption of counsel during argument. Interruption of counsel in argument will not be permitted, except for the purpose of raising a question of law.'

Objections not preserved before the jury retires are normally deemed waived. Bruno v. San Xavier Rock & Sand Co., 76 Ariz. 250, 263 P.2d 308 (1953); City Transfer Co. v. Johnson, 72 Ariz. 293, 233 P.2d 1078 (1951).

Plaintiff's Instruction No. 4 was given as modified and as given, reads as...