Loya v. Fong, No. 2

CourtCourt of Appeals of Arizona
Writing for the CourtMOLLOY; WILLIAM C. FREY, Judge of Superior Court, and HATHAWAY
Citation1 Ariz.App. 482,404 P.2d 826
Decision Date06 August 1965
Docket NumberNo. 2,CA-CIV
PartiesBurno LOYA, Dolores Loya and Elisa Morales and Frank Morales, Appellants, v. Richard FONG, dba Market Basket, Appellee. * 40.

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.

[1 Ariz.App. 483]

Page 827

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 [1 Ariz.App. 484]

Page 828

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 [1...

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22 practice notes
  • Pierce v. Lopez, No. 2
    • United States
    • Court of Appeals of Arizona
    • 24 de novembro de 1971
    ...Bank of Arizona, 75 Ariz. 184, 254 P.2d 435 (1953); Glowacki v. A. J. Bayless Markets, 76 Ariz. 295, 263 P.2d 799 (1953); Loya v. Fong, 1 Ariz.App. 482, 404 P.2d 826 (1965); Annot., 69 A.L.R.2d 449, 482 (1960); 5A J. Moore, Federal Practice 50.05(1), at 2341 (2d ed. 1971); 46 Am.Jur.2d Judg......
  • Tucson Rapid Transit Co. v. Tocci, CA-CIV
    • United States
    • Court of Appeals of Arizona
    • 17 de maio de 1966
    ...a proximate cause of the accident?' We have held that a pretrial order governs the subsequent course of litigation. Loya v. Fong, 1 Ariz.App. 482, 404 P.2d 826 (1965). Though the subject pretrial order is far from what is conceived by this court to be an exemplary one, nevertheless, it clea......
  • Hammontree v. Kenworthy, No. 2
    • United States
    • Court of Appeals of Arizona
    • 6 de agosto de 1965
    ...opening up its judgment to permit this to be done. For the reasons heretofore stated, the order of the trial court granting a new trial [1 Ariz.App. 482] Page 826 on the issue of a constructive trust is reversed; the order granting a new trial as to the issues of an agreement to pay taxes, ......
  • Balon v. Hotel & Restaurant Supplies, Inc., CA-CIV
    • United States
    • Court of Appeals of Arizona
    • 16 de novembro de 1967
    ...of the inception of this contract, and hence we see no basis procedurally to reform this contract as to time of payment. Loya v. Fong, 1 Ariz.App. 482, 404 P.2d 826 Moreover, in this case, we find the evidence to be insufficient to meet the test set down by our Supreme Court insofar as the ......
  • Request a trial to view additional results
22 cases
  • Pierce v. Lopez, No. 2
    • United States
    • Court of Appeals of Arizona
    • 24 de novembro de 1971
    ...Bank of Arizona, 75 Ariz. 184, 254 P.2d 435 (1953); Glowacki v. A. J. Bayless Markets, 76 Ariz. 295, 263 P.2d 799 (1953); Loya v. Fong, 1 Ariz.App. 482, 404 P.2d 826 (1965); Annot., 69 A.L.R.2d 449, 482 (1960); 5A J. Moore, Federal Practice 50.05(1), at 2341 (2d ed. 1971); 46 Am.Jur.2d Judg......
  • Tucson Rapid Transit Co. v. Tocci, CA-CIV
    • United States
    • Court of Appeals of Arizona
    • 17 de maio de 1966
    ...a proximate cause of the accident?' We have held that a pretrial order governs the subsequent course of litigation. Loya v. Fong, 1 Ariz.App. 482, 404 P.2d 826 (1965). Though the subject pretrial order is far from what is conceived by this court to be an exemplary one, nevertheless, it clea......
  • Hammontree v. Kenworthy, No. 2
    • United States
    • Court of Appeals of Arizona
    • 6 de agosto de 1965
    ...opening up its judgment to permit this to be done. For the reasons heretofore stated, the order of the trial court granting a new trial [1 Ariz.App. 482] Page 826 on the issue of a constructive trust is reversed; the order granting a new trial as to the issues of an agreement to pay taxes, ......
  • Balon v. Hotel & Restaurant Supplies, Inc., CA-CIV
    • United States
    • Court of Appeals of Arizona
    • 16 de novembro de 1967
    ...of the inception of this contract, and hence we see no basis procedurally to reform this contract as to time of payment. Loya v. Fong, 1 Ariz.App. 482, 404 P.2d 826 Moreover, in this case, we find the evidence to be insufficient to meet the test set down by our Supreme Court insofar as the ......
  • Request a trial to view additional results

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