Santanello v. Cooper

• Citation: 12 Ariz.App. 123,468 P.2d 390
• Decision Date: 28 April 1970
• Docket Number: CA-CIV,No. 1,1
• Parties: Anthony Andrew SANTANELLO, Appellant, v. Vern COOPER, Appellee. 996.
• Court: Arizona Court of Appeals

Page 390

468 P.2d 390

12 Ariz.App. 123

Anthony Andrew SANTANELLO, Appellant, v. Vern COOPER, Appellee.

No. 1 CA-CIV 996.

Court of Appeals of Arizona, Division 1, Department B.

April 28, 1970.

Rehearing Denied May 29, 1970.

Review Granted June 23, 1970.

Browder, Gillenwater & Daughton, by Powell B. Gillenwater, Phoenix, for appellant

O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, by John H. Lyons, Ralph Hunsaker, Phoenix, for appellee.

EUBANK, Presiding Judge.

This is an appeal from an order of the trial court granting a new trial in a personal injury action. The main question involved is whether the trial court abused its discretion in granting the new trial.

Plaintiff and appellant, Anthony Andrew Santanello, sued defendants Vern Cooper and Floyd Ray Highfill, as joint or concurrent tort-feasors, in the same complaint and in the same cause of action. He alleged, specifically, that Highfill was negligent for causing his motor vehicle to collide with the rear of his vehicle, and that Cooper was negligent in allowing his dog to run at large, in not restraining the dog by a leash, and in permitting the dog to run loose and cross a heavily traveled highway, all in violation of Phoenix City Ordinance #G--589. ¹ He further alleged The evidence introduced at the trial defines the negligent acts complained of as follows:

that their negligent acts combined to cause his back injury. Both defendants, in separate answers denied that they were negligent and thereafter the matter was tried to a jury. A verdict against both defendants was returned, jointly and separately, in the amount of $50,000. Judgment was entered by the court on August 6, 1968, and a timely motion for a new trial was filed by defendant Cooper, only. The trial court granted his motion and entered its order granting defendant Cooper a new trial. Plaintiff Santanello appeals from this order.

The plaintiff, Santanello, was alone and driving his 1953 Falcon Ranchero east near the 4800 block on East Camelback Road at approximately 4:15 P.M. on March 19, 1965. He was occupying the center lane and traveling with the flow of traffic at approximately 35 to 40 miles per hour, within the posted speed limit. Visibility was good and the traffic was moderate. At the same time, in the same lane, at the same speed and five to eight car lengths behind, the plaintiff was being followed by Floyd Ray Highfill, defendant, in his 1964 Chevrolet Pickup Truck. The plaintiff testified that the accident occurred as follows:

'A (Santanello) Well, I was going along with the flow of traffic like I said about 35 or 40 miles an hour, and I have got about just before I started making that bend there, I think the name of the road is Camelhead, (sic) and this dog, I spotted this dog in front of me, and he shot right across the street from me in front of me. And, what I did was try to keep from hitting him, and when I did, I would say I was at a complete stop when this truck behind me hit me. * * *'

He then testified that he did not give any kind of an arm signal as only four or five seconds elapsed between the time he saw the dog, stopped and was hit from the rear by defendant-Highfill. Plaintiff characterized his fast braking stop as a reflex action and not as a panic stop.

Defendant-Highfill testified that he was following the plaintiff in his truck, at least five to eight car lengths behind, when he observed a dog crossing the north lane on the north side of the road traveling south approximately 150 feet ahead. He testified:

'A (Highfill) If I recall the dog right, he paused as he got to the center line, and he didn't just jump on across. Now this is the way I remember it, he paused and looked back and then turned in front of Tony's (Santanello) pickup.'

'Q When were you first aware that Mr. Santanello was stopping his car?

'A When I was just following along behind and the dog jumped in front?

'Q You saw the dog jump in front of his car?

'A Yes. And I had already taken my foot off the footfeed. I don't recall if I had applied my brakes at that point or not, but I do recall when I saw the dog I had released the foot accelerator. * * *

'A Then when I suddenly became aware that the pickup was stopping, then of course I applied my brakes too.

'Q But you did see the dog run in front of the pickup?

'A I saw the dog, then I was ready to stop or tried to be.'

Mr. Highfill then testified that he couldn't stop in time and that his truck collided with the rear of plaintiff's Ranchero. He also testified that the plaintiff ran over the dog, that it came out on the right-hand side of the truck and ran off to the north in the same direction from which it had come.

Plaintiff established to the satisfaction of the jury that the dog was owned by The trial court gave three reasons for granting defendant-Cooper a new trial. They are as follows:

Vern Cooper, defendant and appellee herein, but no evidence was presented as to the length of time the dog had been loose, or the circumstances surrounding its being away from the defendant-Cooper's residence on the day of the accident.

'The voir dire questions propounded to members of the jury panel by plaintiff's attorney pertaining to the filing of claims in connection with accidents, automobile or other instruments, etc., and if any member of their families were engaged in the processing of claims, etc., were prejudicial to defendant Cooper, and it is the Court's opinion that such questions were of such a nature as to prompt the inference that insurance was involved in the case. The occupation, residence, etc., of the jurors had already been elicited and no occupation or engagement given by members of the jury panel should have prompted these questions.

'For the further reason that the evidence required consideration of a superseding cause or intervening act which produced the injuries sustained by plaintiff, other than the Cooper dog, and the Court should have given defendants (sic) requested instruction No. 15, over plaintiff's objections, defining what constituted a superseding cause of intervening act, and stating the law more adequately for the jury's guidance in this respect.

'Further, the Court should have read Sec. 28--701--A, A.R.S. over plaintiff's objection, to the jury, as this section had a bearing upon the evidence presented and should have been considered in connection with superseding cause and/or intervening act.'

In addition to the foregoing grounds for granting a new trial, defendant-Cooper also urged to the trial court and this court, the failure of the trial court to give his requested Instruction No. 26 requiring the jury to find that before they could find him liable to the plaintiff for violation of the city ordinance they must find that he intentionally or negligently violated that city ordinance.

The court's order complies with Rule 59(m), Rules of Civil Procedure, 16 A.R.S., in specifying with particularity the grounds upon which the new trial was granted. Plaintiff-Santanello urges that each of the three grounds specified is an insufficient ground for granting a new trial and consequently the order should be vacated and the jury verdict reinstated. The burden is upon him to demonstrate the trial court's abuse of discretion. Yoo Thun Lim v. Crespin, 100 Ariz. 80, 411 P.2d 809 (1966).

THE MENTION OF INSURANCE

As to the first ground set forth by the trial court, plaintiff's voir dire examination of the jury panel, was in part as follows:

'Have any of you filed any claim of any kind arising out of any kind of an accident situation, whether it would be with an automobile or any other type of instrument?

'Are any of you employed in an occupation or any members of your family employed in an occupation where your duties are to handle the processing of claims as they come through?

'Do any of you or members of your family work in such an occupation?'

Defendant Cooper made no objection to the questions when they were asked. The voir dire continued until all counsel had concluded this questioning. Each counsel in turn then proceeded to exercise their challenges and the selected jury was sworn. Two opening statements were made before the trial was continued until Monday morning. On Monday morning defendant-Cooper moved for a mistrial:

'Mr. Hunsaker: (for Cooper) I would move for a mistrial on the basis of Mr. Gillenwater's voir dire of the jury where he asked the jury If they worked for any company that processed any claims. It can be asked for only one reason. There is insurance in the case. I believe it is improper voir dire question. (Emphasis added).

'The Court: I was afraid he was going to jump over the traces.

'Mr. Gillenwater: (for Santanello) It is a proper question I think. It is well known people who do process claims are not going to be sympathetic to an injured person. We are entitled to know what their sympathies are based on their employment.

'The Court: Well, the motion will be denied. I would consider that close to the border line myself. * * *'

As can be seen from the above interplay, the only objection made by defendant-Cooper was to the second question--processing claims--which the court denied. Our concern here is to determine whether or not the court abused its discretion in granting a new trial on the basis of the above voir dire examination.

Judicial discretion has been defined as the power of decision, exercised to the necessary end of awarding justice, and based upon reason and the law, but for which decision there is no special governing statute or rule. Bowers, Judicial Discretion of Trial Courts, § 10, p. 14 (1931). In the same section, Bowers quotes Lord Mansfield's famous definition that, 'Discretion, when applied to a court of justice, means sound discretion guided by law. It must be governed by rule, not by humor; it must not be arbitrary, vague and fanciful, but legal and regular.' Judicial discretion then is really legal discretion to be exercised in...