General Petroleum Corp. v. Barker

• Decision Date: 19 April 1954
• Docket Number: No. 5726,5726
• Citation: 269 P.2d 729,77 Ariz. 235
• Parties: GENERAL PETROLEUM CORP. v. BARKER et ux. GENERAL PETROLEUM CORP. v. REED et al.
• Court: Arizona Supreme Court

Page 729

269 P.2d 729

77 Ariz. 235

GENERAL PETROLEUM CORP. v. BARKER et ux.

GENERAL PETROLEUM CORP. v. REED et al.

No. 5726.

Supreme Court of Arizona.

April 19, 1954.

Rehearing Denfied May 11, 1954.

Moore & Romley, Phoenix, for appellant, General Petroleum corp.

Joseph H. Morgan and Donald J. Morgan, Phoenix, for appellees Barker.

Carl W. Divelbiss, Phoenix, Attorney for appellees Reed and Employers' Fire Ins. Co.

UDALL, Justice.

This is an appeal by defendant General Petroleum Corporation from orders of the Superior Court of Yavapai County in two consolidated cases, vacating unanimous verdicts in defendant's favor, setting aside the resulting judgments, and granting new trials therein. The primary question involved, as set forth in its sole assignment of error, is whether the trial court abused its discretion in making such orders.

In an earlier appeal we decided certain phases of this litigation and remanded the case for a new trial. See Barker v. General Petroleum Corp., 72 Ariz. 187, 232 P.2d 390; supplemental opinion on rehearing, 72 Ariz. 238, 233 P.2d 449. The facts therein stated give the overall picture and the basis for the suits.

The two damage actions grew out of a fire occurring June 3, 1948, at Camp Verde, Arizona, which destroyed a service station and grocery store building owned by the Barkers, who had leased the grocery store portion thereof to the Reeds. Upon retrial the actions were consolidated by stipulation, and are here consolidated on appeal.

The Barker suit (No. 17399) sought damages in the sum of $17,000, plus loss of certain rents and profits. J. J. Reed, et ux., lessees of the grocery store, and their insurer, Employers' Fire Insurance Company, brought suit (No. 17771) for damages in the sum of $4,114.60, for destruction of a stock of merchandise and certain personal effects, and loss of profits.

In each case it was alleged that the fire causing the destruction was caused by the negligence of an agent or servant of defendant General Petroleum Corporation (one Robert Bland) while making a delivery of stove gas into a barrel located in a storage room of the service station. The answer in each case was in effect a general denial.

The Barker complaint named as defendants the General Petroleum Corporation and W. F. Simpson, the latter being the wholesaler in the area for the corporation's products, and who we declared in the previous appeal was legally an agent of the corporation. The Reed suit named these same defendants as well as the Barkers. During trial a motion for instructed verdict as to Simpson was granted and judgment entered thereon. In the Reed case the court granted a motion to dismiss as to Barkers. No appeal has been taken from these rulings, therefore, except for certain third-party proceedings by General Petroleum Corporation against Simpson, which by stipulation are reserved for later consideration, the battle wages between the respective plaintiffs and the defendant corporation. We shall hereafter refer to them as plaintiffs and defendant.

The trial court did not specify the particular ground or grounds upon which the motions for new trial were granted, and we are therefore compelled to review all the grounds set forth in plaintiffs' motions to see if any one of them justified the action of the trial court. Insofar as the motions are predicated upon errors of law occurring at the trial, we apply this yardstick: are these errors so prejudicial that if the case were here on appeal from a judgment in favor of defendant, we would be required to reverse the case? See, Southern Arizona Freight Lines v. Jackson, 48 Ariz. 509, 63 P.2d 193; cf. City of Phoenix v. Harlan, 75 Ariz. 290, 255 P.2d 609.

1. Fire Insurance

The first ground in this category is that the court erred in admitting evidence that plaintiffs Barker carried fire insurance. This fact was first brought out by Barker who stated that a Mr. Bolt, a 'fire insurance adjuster', had helped him prepare a certain exhibit. No objection was made by counsel, and no motion was made to strike it or to admonish the jury to disregard it. Later, on cross-examination it was referred to again. Plaintiffs claim that even though the matter of fire insurance was inadmissible, inasmuch as it had come to the jury's attention Barkers were entitled to go into the subject and show the amount collected. There is no merit to this contention, because at the request of Barkers the trial court in its instructions specifically told the jury '* * * that any payment made to plaintiffs on account of insurance on the property destroyed may not be used to minimize the amount of damages sustained by them. So if you find the issues in favor of plaintiffs, you will award them damages for their loss, without any deduction for any sum they may have received on account of insurance.' Giving this beneficial instruction sufficiently protected their rights with regard to insurance coverage.

2. Limiting Scope of Recross-examination of Bland

Robert Bland was called as a defense witness, and after giving testimony on direct examination he was cross-examined at length by counsel for both plaintiffs. On redirect examination Bland was asked only about the color of the socks he wore on the day of the fire and whether he was smoking during the time he was filling the drum with stove gas. Counsel for plaintiffs Barker then undertook on recross-examination of Bland to delve into the contents of a written statement, identified by the witness as having been made by him after the fire and prior to trial. The statement was not offered in evidence and there is no showing the court was even informed of its contents. Counsel apparently wanted to show that statements appearing therein were contradictory to some testimony given on direct examination or cross-examination, and thus impeach the witness. The objection was made and sustained by the court that this was improper recross-examination. This ruling was assigned as one of the grounds for granting motion for new trial.

The question presented is whether the court, in the circumstances above set forth, abused its discretion in thus limiting the scope of recross-examination to the matters brought out on redirect examination. We are convinced that it did not. Unquestionably, under Rule 43(b) Rules Civil Procedure, Section 21-922, A.C.A.1939, the scope of cross-examination proper is limited only by materiality, for 'Any witness may be cross-examined on any matter material to the case. * * *' (Emphasis supplied.) See Podol v. Jacobs, 65 Ariz. 50, 173 P.2d 758, for an excellent exposition of the rule. However, Rule 43(b) does not mean the trial court, in its discretion, may not limit the scope of the inquiry on recross- examination. The rule in this respect is well stated in 70 C.J. Witnesses, § 868, as follows:

'Ordinarily a party must exhaust his cross-examination of a witness when it is entered into, and recross-examination is properly refused where redirect examination has been confined to the scope of the cross-examination and has brought out no new matter, particularly where the matter sought to be inquired into is not disputed. Recross-examination, generally, is not allowable as of right, but the whole matter of permitting recross-examination, and further questioning and particular questions thereon, is in the sound discretion of the trial court, whose action will not be disturbed unless an abuse of discretion is shown.'

3. Denying right to cross-examine Simpson by leading questions

W. F. Simpson was called and testified as a witness for the plaintiffs. At this time he was a party defendant in both suits, but the court later directed a verdict in his favor. There is still pending a third-party claim by General Petroleum against Simpson for contribution in the event the judgment goes for plaintiffs. Upon redirect examination of Simpson, counsel for plaintiffs Barker undertook to declare the witness to be hostile and demanded the right to cross-examine him by leading questions. The court refused to permit it, and this ruling was assigned as a basis for new trial. Careful examination of the record convinces us the trial court was correct in ruling that the witness manifested no hostility. Under the test laid down by us in the recent case of J. & B. Motors, Inc., v. Margolis, 75 Ariz. 392, 257 P.2d 588, as to when leading questions may be asked of one's own witness, we hold the trial court did not abuse its discretion in refusing to permit the neutral witness Simpson to be asked leading questions.

4. Bias and Prejudice of Jury

This was one of the grounds urged for new trial, but upon appeal no mention is made of it, doubtless because this assignment finds no support in the record.

5. The Instructions

The motion for new trial alleges error of law occurred in the failure to give certain portions of plaintiffs' requested instruction No. 5, failure to give plaintiffs' requested instruction No. 15, and the giving of defendant's instruction No. 5. Plaintiffs' No. 5 would have been a comment on the evidence, for it assumed a fact in issue, namely, that the fire was touched off by a static or electric spark as plaintiffs contended, and made no mention of defendant's contention that it was touched off by the pilot light in the hot water heater. We believe it would have been reversible error to give this instruction. Plaintiffs' instruction No. 15 was an instruction relative to the failure of defendant to furnish reasonably safe and adequate appliances for delivery to plaintiffs of stove gas, which is an explosive and inflammable product. There was no evidence offered by plaintiffs that the appliances furnished were not safe or adequate, and the record before us certainly would not permit an inference of defendant's negligence in this regard. Defendant's No. 5 was an instruction on contributory negligence, wherein the jury was told that if this defense were established to their satisfaction it would be a...