Northern Ariz. Supply Co. v. Stinson

• Decision Date: 17 December 1951
• Docket Number: No. 5518,5518
• Citation: 73 Ariz. 109,238 P.2d 937
• Parties: NORTHERN ARIZONA SUPPLY CO. et al. v. STINSON. NORTHERN ARIZONA SUPPLY CO. et al. v. OLSON et al.
• Court: Arizona Supreme Court

Page 937

238 P.2d 937

73 Ariz. 109

NORTHERN ARIZONA SUPPLY CO. et al. v. STINSON.

NORTHERN ARIZONA SUPPLY CO. et al. v. OLSON et al.

No. 5518.

Supreme Court of Arizona.

Dec. 17, 1951.

Rehearing Denied Jan. 16, 1952.

McQuatters & Stevenson, of Flagstaff, for appellants.

Cox & Cox, of Phoenix, for Alice Stinson.

Carl Tenney, of Phoenix, for Helen W. Olson et al.

DE CONCINI, Justice.

Helen W. Olson and Robert Olson, wife and husband, filed a complaint in the trial court asking for damages for personal injuries suffered by the wife as a result of a collision between a car driven by the wife and one belonging to the Northern Arizona Supply Company driven by H. J. Fryberger, an employee. Helen Olson, as guardian ad litem, also asked for damages for personal injuries suffered by Virginia Cheves and Allen Cheves, her minor children who were in her car at the time of the accident. A passenger in the Olson car, Alice Stinson, also filed a complaint against the company and its employee praying for damages she incurred as a result of injuries occasioned by the accident.

The actions were consolidated for trial and tried to a jury. Liability of the defendants was admitted by stipulation filed with the court, and the only issues to be tried by the jury were the amount of damages that the several plaintiffs suffered by reason of the accident.

On the last afternoon of the trial, a short recess was taken and the record shows that the court was again in session at 4:00 p. m. During this recess one of the jurors sitting in this case engaged D. A. Foil, president of the defendant company, in a conversation. Foil testified under oath that the following is the import of that talk: 'We were sitting together in chairs out there, discussing the possibility of him coming up to Show Low, maybe starting a business, and after we got through with that he passed the remark, what he would like to know, was both cars covered by insurance, and I told him I did not know. I have forgotten the exact words that transpired then. Then I said, 'All companies cover their traveling cars with insurance,' and that is all that transpired.'

Insofar as the record shows, the first time that the above was called to the trial court's attention was sometime after 4:35 p. m., since that is when the jury retired to reach a verdict. The jury returned with the verdicts at 5:40 p. m. Sometime during this hour and five minutes, counsel for appellants called the court's attention to the misconduct of the juror and Foil. The record shows the following:

The court: 'It has been reported to the Court by the attorneys for the defendants that defendant D. A. Foil had a conversation with a juror named Edgar Bulson, during the trial of this case before it was submitted to the jury, * * *.

'It is further reported to the court that the jury has now arrived at a verdict. It is the intention of the Court to receive the verdict and then receive testimony from D. A. Foil and the juror, Edgar Bulson, under oath as to this conversation for the purpose of consideration of whether or not misconduct was had on the part of said parties and whether or not said parties should be punished for contempt and a mistrial declared.

'If you want any objections, dictate them into the record.'

There was no response to this by either side and the court then opened session to receive the verdicts of the jury.

After the court had examined both Foil and Bulson, the appellees then moved for judgments on the verdicts of the jury. At this time counsel for appellants for the first time moved for a mistrial 'on the grounds of improper conduct of the juror before the case was submitted to the jury for deliberation.' The trial court denied the appellants' motion and directed that judgments on the verdicts be granted. A motion for a new trial was made by the appellants and was denied by the trial court. Appeal to this court then followed.

Appellants present eight assignments of error in their opening brief. Assignments one through four relate to the trial court's action in denying appellants' motions for mistrial and new trial for the reason that the misconduct of the juror was prejudicial and denied the Northern Arizona Supply Company and H. J. Fryberger a fair and impartial trial. Assignments five through eight concern themselves with the award by the jury to each of the four plaintiffs, in that each award 'is excessive and not justified by the evidence and is contrary to the law'.

The first question to be answered is whether defendants were denied a fair and impartial trial?

The Arizona cases cited by appellants are authority for the proposition that it is improper in a negligence case for personal injuries and property damages to inject the matter of the defendants carrying liability insurance. In all of these cases the existence of insurance was raised through fault of the plaintiff. These cases are Blue Bar Taxicab & Transfer Co. v. Hudspeth, 25 Ariz. 287, 216 P. 246; Tom Reed Gold Mines Co. v. Morrison, 26 Ariz. 281, 224 P. 822; Fike v. Grant, 39 Ariz. 549, 8 P.2d 242; Consolidated Motors, Inc., v. Ketcham, 49 Ariz. 295, 66 P.2d 246.

We further agree with appellants' statement in their opening brief, viz.: 'The rule of law provided by these cases is that the injection into the trial of a case of evidence of a defendant's liability insurance coverage is prejudicial and requires a mistrial, new trial, or reversal, as the case may be, if the defendant is without fault and the matter is promptly called to the Court's attention.' (Emphasis ours.)

We cannot agree however with appellants that they were without fault. Mr. D. A. Foil, owner and president of the defendant corporation, made the statement to the juror that 'All companies cover their traveling cars with insurance.' He shouldn't have been talking with a juror during the course of the trial and especially should he not talk about the case in any respects, least of all say that 'All companies carry insurance.'

In the case of Whitson v. State, 65 Ariz. 395, 181 P.2d 822, 825, this court set aside a verdict of guilty on the grounds that one of the jurors was told of the defendant's bad reputation in the state of his former residence. Quoting from said case: 'Had these highly inflammatory and prejudicial statements been made to the jury as a whole there could be no question but what a new trial would have been granted. Does the fact that only one juror was thus contaminated make them innocuous? We think not. The constitutional right to an impartial jury cannot be made to hinge upon the number of jurors thus prejudiced. There is no right more sacred than the right to a fair and impartial trial. There is no wrong more grievous than the negation of that right. Nor can such misconduct be cured by the State's contention that a conviction would have resulted anyway by reason of the strength of the State's case. Although but one ballot was taken by the jury in arriving at its verdict, still that verdict had to be unanimous. It is possible that without the information improperly received, juror Cora Seitz might have voted for acquittal.'

The instant case is different in respect to not requiring a unanimous verdict; being a civil case only nine jurors need agree. Regardless of that however, if all the jurors knew about it, by the president and owner of defendant corporation himself telling them on the witness stand or otherwise, it would not excuse the defendant because its own witness brought about the situation which it now seeks to avoid. While we do not excuse the juror for misconduct, yet his actions did not prevent defendants from a fair and impartial trial, but rather if any prejudice arose it was the fault of the defendant company's president in talking to the juror, and it cannot now be heard to complain.

If a defendant can take advantage of its own misconduct then the plaintiff could never have his case adjudicated until the verdict was satisfactory to the defendant. Such a procedure in judicial administration is untenable.

The Texas Supreme Court, in the case of Finck Cigar Co. v. Campbell, 134 Tex. 250, 133 S.W.2d 759, 761...