Lindus v. Northern Ins. Co. of New York

• Decision Date: 28 February 1968
• Docket Number: No. 9129-PR,9129-PR
• Citation: 103 Ariz. 160,438 P.2d 311
• Parties: Roger LINDUS, a minor child, by and through his Guardian ad Litem, Robert E. Tullar, Appellant, v. NORTHERN INSURANCE COMPANY OF NEW YORK, a corporation, and the Travelers Insurance Company, a corporation, also known as the Travelers Indemnity Company, Appellees.
• Court: Arizona Supreme Court

Page 311

438 P.2d 311

103 Ariz. 160

Roger LINDUS, a minor child, by and through his Guardian ad Litem, Robert E. Tullar, Appellant, v. NORTHERN INSURANCE COMPANY OF NEW YORK, a corporation, and the Travelers Insurance Company, a corporation, also known as the Travelers Indemnity Company, Appellees.

No. 9129-PR.

Supreme Court of Arizona, In Banc.

Feb. 28, 1968.

Rehearing Denied April 16, 1968.

Fennemore, Craig, Von Ammon, McClennen & Udall, by Calvin H. Udall, Phoenix, for appellant.

Spaid, Fish, Briney & Duffield, by William Spaid, Tucson, for appellee Northern Ins. Co.

Kramer, Roche, Burch, Streich & Cracchiolo, by Daniel Cracchiolo, Phoenix, for appellee Travelers Ins. Co.

BERNSTEIN, Justice.

On November 14, 1967 we denied a petition to review the Court of Appeals, Division Two, decision in Lindus v. Northern Insurance Co., 6 Ariz.App. 74, 429 P.2d 708. The petitioner, Roger Lindus, asked this court on November 22nd to reconsider its denial of the petition for review and to stay the mandate. However, no stay order was entered by us and on November 27th the Court of Appeals issued the mandate to the Superior Court of Pima County. Lindus then filed, on November 29th, a petition to recall the mandate. This court granted the petition and recalled the mandate on December 5th. At the same time we vacated the original denial of the petition for review and entered an order granting the petition for review.

Northern Insurance Company and Travelers Indemnity Company (hereinafter referred to respectively as Northern and Travelers), on December 11th moved to quash and vacate our order of December 5th. We refuse to vacate the order recalling the mandate for the reasons set out below.

Both Northern and Travelers contend that this court has no jurisdiction to recall a mandate once it has issued. It should be noted, however, that here the use of the term 'jurisdiction' does not mean that we lack the power. Rather, 'jurisdiction' in this sense is analogous to the self-imposed restrictions of the equity court when it decides whether to act or refuse to act in any particular case. By balancing the policy considerations in an extraordinary situation this court may choose to Exercise jurisdiction and recall a mandate.

The propriety of recalling a mandate once it has issued has caused considerable confusion among the various courts. See e.g., Slappy v. Georgia Power Co., 109 Ga.App. 850, 137 S.E.2d 537; Southwestern Corp. v. City of Los Angeles, 38 Cal.2d 623, 241 P.2d 985. We believe, however, that the proper criterion to be considered in determining whether to recall a mandate was succinctly expressed by the Supreme Court of the United States in United States v. Ohio Power Co., 353 U.S. 98, 99, 77 S.Ct. 652, 653, 1 L.Ed.2d 683, where it is stated:

'* * * the interest in finality of litigation must yield where the interests of justice would make unfair the strict application of our rules.'

Faced with the same problem that we now have before us the United States Supreme Court in Gondeck v. Pan American World Airways, Inc., 382 U.S. 25, 86 S.Ct. 153, 15 L.Ed.2d 21, in order to prevent injustice, granted a second petition for rehearing three years after the mandate had issued. See also Cahill v. New York, N.H. & H.R. Co., 351 U.S. 183, 76 S.Ct. 758, 100 L.Ed. 1075; Chapman v. St. Stephens Protestant Episcopal Church, 105 Fla. 683, 136 So. 238, 138 So. 630, 139 So. 188, 145 So. 757, 84 A.L.R. 566.

A decision to recall a mandate must of necessity include a balancing of competing interests. Where the interests of justice outweigh the interest in bringing litigation to an end the court should recall the mandate. Of course where there has been either fraud, imposition, or mistake of fact, the court can always recall a mandate to modify or correct its own judgment. Overson v. Martin, 90 Ariz. 151, 367 P.2d 203.

It would be absurd to argue that a court, empowered to correct errors in every other court in this state cannot correct its own. Ariz.Const. Art. 6, Sec. 5, A.R.S. To hold otherwise would create the astounding concept that mistakes made by the Supreme Court of Arizona are the only errors for which no relief is available.

Moreover, in the instant case both Northern and Travelers cannot claim that they have been prejudiced since they had notice of further proceedings pending in this cause. Lindus had filed a petition to stay the mandate five days before it was actually sent to the trial court. The fact that the petition was not brought to this court's attention until after the mandate had issued is no reason to deny Lindus an opportunity to have the merits of his claim determined. We therefore hold that the order recalling the mandate was proper under these particular facts.

We turn next to a discussion of the merits of this case. We must take the evidence found by the trial court in the light most favorable to support the trial court's findings. Appellees admit that all of the findings of or factual issues in the case were in favor of the plaintiff except the issue of notice which we discuss later. Roger Lindus, a twelve-year-old student at the Orme Ranch School, was seriously injured in an accident which resulted when Richard Phillippi, another student, was pouring gasoline into the carburetor of an automobile. William Nelson, an eighteen-year-old resident student, switched on the ignition in an attempt to start the engine. The engine backfired and the gasoline can which Phillippi was holding burst into flames. Phillippi immediately threw the can away to avoid being injured, however the can struck and critically burned Lindus, who was walking in the area.

Lindus sued Nelson, the boy who had turned on the ignition, and recovered a judgment for $92,500. Both Northern and Travelers, Nelson's insurers, failed to defend the suit and later refused to make payment. In a subsequent suit for declaratory judgment brought by Lindus against the two insurance companies the defense of lack of notice was raised. Northern raised the defense in its answer, and Travelers in its answers to interrogatories. Travelers was not notified of the accident until seventeen months after its occurrence but before suit was brought. Northern was not given notice until two years after the accident, shortly after suit was filed against Nelson. The case was submitted to the trial court sitting without a jury and the court found for the defendant insurance companies for the reason that the insured had failed to notify his insurance companies of the accident as soon as practicable.

At the threshold Northern contends that its comprehensive homeowners policy does not cover this accident. The pertinent policy provisions follow:

'* * * the definition of 'premises' appearing in the Basic Policy is extended to include:

(1) All premises where the Named Insured or his spouse Maintains a residence and includes private approaches thereto and Other premises and private approaches thereto for use in connection with said residence * * *'

'(3) Premises in which an Insured is temporarily residing, if not owned by an insured * * *'

'SPECIAL EXCLUSIONS'

'(b) Under coverages E and F, to the ownership, Maintenance, operation, use, loading or unloading of (1) automobiles or midget automobiles Which away from the premises or the ways immediately adjoining * * *' (Emphasis added.)

Northern argues that since the accident occurred 200 yards away from the building in which Nelson slept that it obviously happened 'away from the premises or the ways immediately adjoining.'

There is no question that the accident in this case arose out of either the 'maintenance' or 'use' of an automobile....