Johnson v. Elliott
| Decision Date | 02 July 1975 |
| Docket Number | No. 11716,11716 |
| Parties | Clifford E. JOHNSON and Daryl Noreen Johnson, his wife, Appellants and Cross-Appellees, v. William T. ELLIOTT and Pauline E. Elliott, his wife, Appellees and Cross-Appellants. |
| Court | Arizona Supreme Court |
Burch, Cracchiolo, Levie, Guyer & Weyl by Michael E. Bradford, Phoenix, for appellants and cross-appellees.
Harrison, Myers & Singer by Robert D. Myers and Noel K. Dessaint, Cahill, Hanson & Phillips by H. Eldon Hanson, Phoenix, for appellees and cross-appellants.
This case arose as the result of a July 23, 1970, automobile collision between appellants, Clifford and Daryl Johnson, and appellees, William and Pauline Elliott. At the trial each driver claimed to have been favored by a green light when entering the accident intersection of Broadway and Alma School Road in Mesa. The Johnsons, as plaintiffs, and the Elliotts, as counterclaimants, sought to recover for personal injuries and property damage allegedly sustained as the proximate result of the other party's negligent operation of a motor vehicle. The jury rejected the claims made by both sides. The Elliotts then filed a motion for a new trial alleging the trial court made several errors which resulted in 'manifest injustice to the parties.' The Elliotts' motion was granted and this appeal by the Johnsons from that order followed. We have repeatedly held 'that the grant or denial of such motion is addressed to the sound discretion of the trial court and, barring a manifest abuse of that discretion, the lower court's decision will be upheld on appeal.' Rodriguez v. Williams, 107 Ariz. 458, 489 P.2d 268 (1971); General Petroleum Corp. v. Barker, 77 Ariz. 235, 269 P.2d 729 (1954).
The first ground advanced by the trial court in support of its order for a new trial was its error in admitting testimony concerning 'the confabulation claim * * * with regard to Mrs. Elliott' because there was insufficient foundation for expert testimony on that phenomenon. Confabulation is a 'symptom of certain forms of mental disorder consisting in making ready answers and reciting experiences without regard to truth.' Dorland's Medical Dictionary (24th ed. 1965). At the trial the following exchange took place:
'BY MR. BRADFORD:
The parties are in disagreement over whether the trial court ever ruled on the belated objection to the confabulation testimony. Appellees' reliance, however, on the trial court's reference in the Order to Correct the Record to 'the ruling made with respect to his testimony' to establish that such a ruling was made is misplaced. The Order clearly appears to be referring to the sustaining of the objection to a prior question by the appellees' counsel concerning amnesia. It is also clear that the objection posed by appellees' counsel to the confabulation testimony is not a legally sufficient objection and cannot be construed as an objection for lack of foundation.
State v. Aldrich, 75 Ariz. 53, 251 P.2d 653 (1952).
"An objection to the admission of evidence must state the reason and if it is not objectionable on the ground stated, it is not error for the court to admit it, even though there might be some other proper reason for its rejection not raised by the objection as made.' * * * Brierly's failure to raise this specific objection constituted a waiver of the objection.' State v. Brierly, 109 Ariz. 310, 509 P.2d 203 (1973).
An attorney must make a timely objection:
'Parties may not sit by and allow error which is not fundamental to be committed without protesting and asking the trial court to correct the error at the time, and then later, when the judgment goes against them, ask for a new trial on that ground.' Southern Arizona Freight Lines v. Jackson, 48 Ariz. 509, 63 P.2d 193 (1936).
There is no evidence that the admission of the testimony concerning confabulation was fundamental error. Trojanovich v. Marshall, 95 Ariz. 145, 388 P.2d 149 (1963). The trial court improperly used this allegation of error as a ground for its order granting a new trial. The second ground advanced by the trial court justifying a new trial was its refusal to allow appellees' counsel to question their medical expert on the ability of Mrs. Elliott to accurately recall the events prior to the impact without the intervention of amnesia. This questioning preceded the testimony referred to in the first allegation of error and related to the issue of confabulation.
'Q. Doctor (Fountain), I apologize for digressing, something I didn't take up before, but did Mrs. Elliott report to you any momentary unconsciousness at the time of the injury?
'A. Yes, sir. In her history she indicated that she was knocked unconscious when she was thrown to the floor.
'Q. Do you have any medical opinion as to the effect this might have upon her memory of the events that surround the time that she was knocked unconscious?
'A. It varies. Some patients have an area of amnesia which goes back before the period of unconsciousness, and other patients after the unconscious period have no memory, at least until they wake up again.
'Q. That's because in that period when they were unconscious, that's a period when the mind was forming the memory which stays with the later; is that correct?
'A. Yes, sir. Some patients actually will get amnesia going back even a little before the accident.
'Doctor, if Mrs. Elliott testified under oath that she recalled the events prior to the impact, in your opinion would she have undoubtedly recalled without the intervention of amnesia?
Counsel was attempting to elicit Dr. Fountain's medical opinion on the effect of the collision on Mrs. Elliott's memory, a proper subject for expert testimony. Brown v. Connolly, 62 Cal.2d 391, 42 Cal.Rptr. 324, 398 P.2d 596 (1965); Stafford v. Goode, 193 Kan. 120, 392 P.2d 140 (1964). Mrs. Elliott had previously testified that she 'came to on the floor of (the) * * * car' and could not recall being taken from her car to the hospital. Mr. Elliott testified that his wife was 'incoherent' just after the accident. Hospital records indicate that Mrs. Elliott was confused as to the events surrounding the accident upon her arrival by ambulance. The court did not abuse its discretion in ordering a new trial because of its error in not allowing Dr. Fountain to answer the disputed question.
The third ground advanced by the trial court for ordering a new trial was its conclusion 'that it was probably improper on oral argument to argue the officer's testimony that he was unable to determine who had run the red light.' Under direct examination by counsel for the defendants-counterclaimants a Mesa police officer, Jose Garcia, testified as follows:
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