Loya v. Fong

• Decision Date: 06 August 1965
• Docket Number: No. 2,CA-CIV,2
• Citation: 1 Ariz.App. 482,404 P.2d 826
• Parties: Burno LOYA, Dolores Loya and Elisa Morales and Frank Morales, Appellants, v. Richard FONG, dba Market Basket, Appellee. * 40.
• Court: Arizona Court of Appeals

Page 826

404 P.2d 826

1 Ariz.App. 482

Burno LOYA, Dolores Loya and Elisa Morales and Frank Morales, Appellants, v. Richard FONG, dba Market Basket, Appellee. ^*

No. 2 CA-CIV 40.

Court of Appeals of Arizona.

Aug. 6, 1965.

Jose del Castillo, Tucson, for appellants.

Chandler, Tullar, Udall & Richmond, Tucson, Robert S. Tullar, Tucson, of counsel, for appellee.

MOLLOY, Judge.

This is an appeal from a judgment rendered on a jury verdict in favor of the defendant. The plaintiffs' complaint alleges that they purchased three pounds of hamburger at the defendant's store and became ill as the result of eating same. The complaint sounds in both breach of warranty and negligence.

The defendant's answer denied negligence and denied, for lack of information, the sale of any product to the plaintiffs on the occasion in question, and any warranty to the plaintiffs.

At the time of pretrial conference, the record shows that the following occurred:

'Defendant further stipulates that if the meat which he sold to the plaintiffs, as alleged in the plaintiffs' Complaint, was not wholesome and fit for human consumption, that he is liable to the plaintiffs for any damages proximately resulting from such condition.

'It is stipulated by all of the parties that the only issues of fact to be tried in this action are these: 1. Was the meat in question which was purchased by the plaintiffs, Bruno Loya and Dolores Loya, husband and wife, wholesome and fit for human consumption at the time it was purchased. 2. If such meat was not wholesome and fit for humand consumption, what damages have been sustained as the result thereof by the plaintiffs.'

The stipulation as to the issues to be tried was read to the jury by the court at the onset of the trial. However, defendant's counsel in his opening statement made reference to the complaint and the answer thereto as setting forth the issues to be tried, and stated that the defendant was leaving the plaintiffs to their proof insofar as establishing that there was a breach of warranty, that any hamburger was sold by the defendant to them on the occasion in question, and that the defendant was guilty of negligence. Plaintiffs' counsel thereupon made the following objection:

'If Your Honor please, I am sorry to interrupt the counsel, but there has been a stipulation that the only issues are only two, that we show that the meat isn't wholesome and not fit for humand consumption when it was purchased and neither negligence nor warranty seem to have been involved as an issue in here. It has been already stipulated at the pretrial. * * *'

The trial court overruled this objection. Thereafter, defendant's counsel continued to talk to the jury about the complaint and the answer and the issues framed therein.

After the plaintiffs had put on their case, the defendant called only one witness in defense, who was the butcher who purportedly had sold the meat in question. The butcher testified that he was a lifelong friend of one of the plaintiffs who supposedly had come into defendant's store to buy the hamburger. Thereafter the following testimony was elicited:

'Q If [he] had come in the Market Basket on Saturday, June 3rd, and had stood there while his partner bought meat from you, would you have recognized him?

'A I would have shaken his hand.

'Q You would have gone over and said, 'Well, Frank, long time no see'?

'A That is right.

'Q Did you see Frank Morales in there Saturday afternoon, June 3rd?

'A No, sir.'

In settling instructions, the plaintiffs requested an instruction that would have limited the jury's consideration of factual issues to the two delineated in the pretrial order. Over the objection of plaintiffs' counsel, and at the request of the defendant's counsel, this instruction was modified so as to add the additional factual issue of whether or not any meat was actually purchased by the plaintiffs from the defendant on the occasion in question.

On appeal, the plaintiff complains of the extension of issues beyond the pretrial order, and also of certain remarks made by defendant's counsel in his opening statement criticizing a portion of the opening statement of plaintiffs' counsel. Also, plaintiffs contend on appeal that this court should order judgment be entered for them.

This last assertion of error will be disposed of first. The court on an examination of the record finds that the jury could find either way on the question of whether the meat purchased by the plaintiffs was spoiled. All of the pertinent evidence tending to establish that the meat was spoiled was that of the plaintiffs themselves, and the triers of fact may find that their testimony is intrinsically unbelievable. Graham v. Vegetable Oil Products Company, 1 Airz.App. 237, 401 P.2d 242 [1965]. In any event, the plaintiffs made no motion for directed verdict prior to submitting the case for decision, and hence a motion for judgment notwithstanding the verdict has no foundation. Rule 50(b), R.C.P., 16 A.R.S.; La Bonne v. First Nat. Bank of Arizona, 75 Ariz. 184, 254 P.2d 435 [1953].

As to the trial court's ruling on plaintiffs' objections to extending the issues beyond the pretrial order, this court believes there is reversible error.

The defendant attempts to justify the court's ruling on two premises. The first of these is that the stipulations in question should receive a 'fair and liberal construction' [In re Brandt's Estate, 67 Ariz. 42, 190 P.2d 497 (1948)], and that when so construed it is apparent that the defendant intended to maintain its denial of any sale to the plaintiffs.

While this court agrees that the standard of interpretion set forth in In re Brandt's Estate, supra, is applicable, when so construed, this court comes to the conclusion that the stipulated pretrial order eliminated the defense of the denial of the sale of meat products to the plaintiffs. If the first stipulation, which impliedly admitted the sale on the occasion in question, is not clear, then the order, limiting the issues to only two, definitely eliminates this issue, together with the concomitant issue of warranty, from the case.

The pretrial conference is purposely scheduled at the conclusion of all discovery measures, so that the issues may be made crystal-clear by the pretrial order. Rule VI, Uniform Rules of Practice of the Superior Court of Arizona, 17 A.R.S. It should have been uppermost in the minds of court and counsel at the pretrial conference that a primary purpose of the proceeding was to succinctly set forth in the order the issues to be tried. The order that was entered in this action met these purposes. It is clear and direct, and leaves no doubt as to the elimination of certain defenses previously raised.

The second justification asserted for the court's ruling is that when issues are tried with the consent of the parties, the giving of instructions to the jury based upon such issues so tried is proper. With this law the court also agrees. Grammas v. Colasurdo, 48 N.J.Super. 543, 138 A.2d 553 [1958]; Jackson v. Cope, 1 Utah 2d 330, 266 P.2d 500 [1954]. And this court also accepts the law to be that if issues are tried with the implied consent of the parties, it is proper to amend the pleadings to conform thereto, either during or after trial, and that the amendment of such pleadings does not affect the validity of the trial of such issues. Electrical Advertising, Inc. v. Sakato, 94 Ariz. 68, 71, 381 P.2d 755 [1963]; Grammas v. Colasurdo, supra.

However, this court does not believe this law is applicable to this case. Here, there was objection by plaintiffs' counsel during the defendant's opening statement. At this time, plaintiffs' counsel attempted to limit the issues of the case to the pretrial order. Defendant's counsel was contending in his opening statement that the issues were framed by the pleadings. This controversy was wrongfully resolved by the trial court in defendant's favor.

A pretrial order having been entered, it controlled the subsequent course of the litigation, unless modified at the trial to prevent manifest injustice. Rule 16(a), R.C.P.; Jenkins v. Devine Foods, Inc., 3 N.J. 450, [1950], 70 A.2d 736, 22 A.L.R.2d 593; 3 Moore's Federal Practice § 16.19.

The particular pretrial order gathers added strength from the fact that it was entered by stipulation. The binding force of stipulations narrowing the issues has been recognized by the courts before pretrial conferences were the order of the day. 83 C.J.S. Stipulations § 22, p. 46; 50 Am.Jur., Stipulations § 12, p. 612; Craft v. Stumpf, 115 Colo. 181, 170 P.2d 779 [1946]; Williams v. General Ins. Co. of America, 8 Cal.2d 1, 63 P.2d 289 [1936]; Burner v. Burch, 179 Okl. 338, 65 P.2d 1215 [1937].

Such stipulations can be waived, if the parties mutually ignore the stipulation and try issues outside the limitations thereof. Jackson v. Gallegos, 38 N.M. 211, 30 P.2d 719 [1934]; Gethsemane Lutheran Church v. Zacho, 253 Minn. 469, 92 N.W.2d 905 [1958]; 83 C.J.S. Stipulations § 30, p. 84. But, in order to waive such a stipulation, the party must have voluntarily joined in litigating an issue which by timely objection he might have ruled out of the case. First Nat. Bank in Albuquerque v. Rowe, 52 N.M. 366, 199 P.2d 987 [1948]. The record here indicates that the plaintiffs made timely objection attempting to rule out issues not included in the pretrial order. This objection was not honored by the trial court.

The defendant contends the plaintiffs wiaved the stipulation when plaintiffs' cousel in his opening statement told the jury that the plaintiffs purchased the meat in question from the defendant's grocery store. This court holds that by so doing, plaintiffs' counsel did not open up this issue to be...