Kinman v. E. Grousky, Civil 3529

• Decision Date: 30 September 1935
• Docket Number: Civil 3529
• Citation: 46 Ariz. 191,49 P.2d 624
• Parties: BERTHA S. KINMAN, an Individual, and BERTHA S. KINMAN, as Guardian of the Estates of Thelma Illena Sample and John S. Sample, Minors, Appellants, v. E. GROUSKY, Appellee
• Court: Arizona Supreme Court

49 P.2d 624

46 Ariz. 191

BERTHA S. KINMAN, an Individual, and BERTHA S. KINMAN, as Guardian of the Estates of Thelma Illena Sample and John S. Sample, Minors, Appellants, v. E. GROUSKY, Appellee

Civil No. 3529

Supreme Court of Arizona

September 30, 1935

APPEAL from a judgment of the Superior Court of the County of Maricopa. G. A. Rodgers, Judge. Judgment Affirmed.

Mr Harold J. Janson, for Appellants.

Mr Herman Lewkowitz and Mr. J. B. Zaversack, for Appellee.

OPINION

LOCKWOOD, C.J.

E Grousky, hereinafter called plaintiff, brought suit against Bertha S. Kinman, an individual, and Bertha S. Kinman, as guardian of the estates of Thelma Illena Sample and John S Sample, minors, hereinafter called defendants, to recover the value of certain property of his which he alleged had been converted by defendants. Defendants answered admitting that they were in possession of the property which plaintiff alleged they had converted, but claiming that they held it as security for rent by virtue of a landlord's lien. The case was tried to a jury, which returned a verdict in favor of plaintiff in the sum of $500, and this appeal was taken.

There are two assignments of error, which read as follows:

"Assignment of Error No. I.

"The Court erred in its instructions to the jury in ignoring defendant's claim of a landlord's lien in her answer as well as in her cross-complaint; that is, the Court merely off-set the claim for damages against the claim for rent, though the claim of landlord's lien was an issue raised by the pleadings and the evidence.

"Assignment of Error No. II.

"The Court erred in not instructing the jury that plaintiff could not maintain his action for trover or damages based upon implied contract unless and until he had made a tender of the amount of the lien or indebtedness for rent."

It will be seen that the appeal is predicated solely upon the failure of the court to give certain instructions which defendants claimed should have been given, and not upon the giving of any erroneous instructions as to the law. We have held in Southwest Cotton Co. v. Ryan, 22 Ariz. 520, 199 P. 124, that it is the duty of the trial court to charge on all the vital issues made by the pleadings and contested in the evidence, although not requested by either party to do so, but have modified that holding later in the case of Southwest Cotton Co. v. Clements, 25 Ariz. 124, 213 P. 1005, by stating that it was only when the court totally failed to instruct upon an issue which must be determined by the jury in order to sustain the judgment that a failure to instruct was reversible error, and that it was not its duty of its own motion to take notice of all questions directly or collaterally involved in the trial of the case and to instruct the jury thereon.

It appeared, however, that frequently in the trial of cases counsel would deliberately refrain from calling to the attention of the trial court the necessity of instructing on certain phases of a case, even when the court, after disposing of all requested instructions and having, as it thought, covered all vital issues involved, specifically asked counsel if other or further instructions were desired apparently in the hope that if they failed to win the case on its merits before the jury, they had an "ace in the hole" which would secure a reversal on appeal and a second bite at the cherry through a new...