Seltzer v. Chesley
| Decision Date | 03 March 1975 |
| Docket Number | No. 73-2786,73-2786 |
| Citation | 512 F.2d 1030 |
| Parties | Atkin F. SELTZER and Helen Seltzer, his wife, Plaintiffs-Appellants, v. William W. CHESLEY, Jr., as Special Administrator of the Estate of Linda Joyce Berryhill, Deceased, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Richard E. Skousen (argued) Mesa, Ariz., for plaintiffs-appellants.
Michael A. Beale (argued) Phoenix, Ariz., for defendants-appellees.
Before BARNES and SNEED, Circuit Judges, and MILLER, * Judge, U. S. Court of Customs and Patent Appeals.
This appeal is from a judgment of the United States District Court for the District of Arizona in favor of defendants-appellees in a diversity action brought by plaintiffs-appellants to recover for personal injuries suffered in an automobile accident in 1969. We affirm.
Plaintiffs-appellants instituted this action in the Superior Court of the State of Arizona in and for the County of Maricopa to recover damages for personal injuries resulting from collision of Pertinent portions of the instructions to the jury are set forth below:
their automobile with one driven by Linda Joyce Berryhill and owned by Adrian Berryhill and Gladys Berryhill. The action was removed by defendants to the District Court for the District of Arizona and tried before a jury. At the close of plaintiffs' case, motion was made for a directed verdict in favor of Adrian Berryhill and Gladys Berryhill on the ground that no liability had been established under the family purpose doctrine. The trial judge reserved ruling on the motion until both sides had rested, at which time the motion was granted, leaving for the jury the case against defendant Linda Joyce Berryhill.
Don't single out any one thing I may say as stating the law, but consider my instructions as a whole.
Now the defendant (Linda Joyce Berryhill) here claims as a defense that even if you should find that she was negligent in the operation of her automobile, the claim then is that the plaintiff was likewise negligent, guilty of contributory negligence. Now whether or not the plaintiff was so contributorily negligent is to be determined by you under the same rules as I have given you already with reference to the question of negligence and proximate cause.
Contributory negligence then is negligence on the part of the plaintiff which, combining with the negligence of the defendant, contributes in proximately causing the injury to the plaintiff.
If the conduct of both plaintiff and defendant was negligent and if the negligence of each, considered separately, was a proximate cause of the accident, then in such a case the plaintiff should not recover.
On the other hand, if you should unanimously find from a preponderance of the evidence in the case, that the plaintiff was guilty of some contributory negligence and that plaintiffs' fault contributed as a proximate cause of any injuries which plaintiffs may have sustained, you will not then be concerned with the issue as to damages, but will return a verdict for the defendant.
And so if you find that the plaintiffs were negligent and that such negligence contributed as a proximate cause, your verdict should be for the defendant.
Contributory negligence then is negligence which, co-operating in some degree with the negligence of another, contributes in proximately causing the accident. The one who is contributorily negligent should not recover from another no matter how negligent the other may have been.
If you find that Atkin Seltzer was negligent, then such negligence, under the law, is imputed to his wife, Helen Seltzer, and she may not recover from the defendant in that event; in other words, she cannot recover in the event Mr. Seltzer was contributorily negligent or was the sole cause of the accident. (Emphasis supplied.)
Appellants' counsel objected to the judge's instructions on the ground that they contained the mandatory terms "will" and "cannot" in discussing contributory negligence; whereas Arizona law requires the permissive term "should." Counsel also stated that he felt the error could not be corrected without emphasizing contributory negligence to the jury. 1 Thereafter the trial judge instructed the jury:
Ladies and gentlemen, in the course of my instructions with you in connection with the question of contributory negligence, I may have made a misstatement I should have said to you that if you find that Mr. Seltzer was contributorily negligent, then you should not-should not find a verdict for Mrs. Seltzer. (Emphasis supplied.)
as to what the law is in the State of Arizona.
Appellants' counsel again objected on the ground that the corrected instruction omitted the instruction of proximate cause. Thereafter the trial judge instructed the jury as follows:
In connection with the instruction on contributory negligence, it is necessary, of course, that if you find there was contributory negligence, that you further find that that contributory negligence was the proximate cause of the injuries-a proximate cause of the injuries. And so if you find that there was contributory negligence and that that contributory negligence proximately caused the injury, then you would not find, or you should not, rather, I should say, under the Arizona law, you should not find a verdict for Mrs. Seltzer. (Emphasis supplied.)
The jury returned a verdict for defendant Linda Joyce Berryhill, and judgment was entered in favor of all appellees.
Appellants contend that the trial judge committed incurable error requiring an automatic mistrial when he gave the jury mandatory instructions on contributory negligence ("will return a verdict for the defendant" and "cannot recover in the event Mr. Seltzer was contributorily negligent"), rather than the permissive instructions required by Arizona law ("should find for the defendant"). Error is also asserted for unduly emphasizing contributory negligence to the jury because of the two curative instructions. Finally, appellants argue that the evidence viewed most favorably to them adequately supports the application of the family purpose doctrine to this case; that, therefore, the trial judge erred in directing a verdict for defendant Linda Joyce Berryhill's parents. 2
OPINIONThe Constitution of Arizona, Article XVIII, § 5, A.R.S., contains a rather unusual provision which appears to have its only counterpart in Article XXIII, § 6 of the Oklahoma Constitution:
The defense of contributory negligence or of assumption of risk shall, in all cases whatsoever, be a question of fact and shall, at all times, be left to the jury.
Under this provision, the jury has not only the right to determine the facts, but also to apply or not apply, as it sees fit, the law of contributory negligence as a defense. Heimke v. Munoz, 106 Ariz. 26, 470 P.2d 107 (1970); Arizona Supreme Court: Contributory Negligence-Confusion Out of Compromise, 13 Ariz.L.Rev. 556 (1971). A mandatory charge on contributory negligence is "fundamentally defective." Chavez v. Pima County, 107 Ariz. 358, 488 P.2d 978 (1971). It is such a fundamental error that it is not waived by failure to object. Bland v. Bock, 8 Ariz.App. 97, 443 P.2d 704 (1968). The proper charge is permissive, employing a word such as "should." Purchase v. Mardian Construction Co., 21 Ariz.App. 435, 520 P.2d 529 (1974). 3
Appellants have cited no case and we have discovered none, holding that a mandatory instruction on contributory negligence under Arizona law is an incurable error requiring an automatic mistrial. However, appellants argue that the following statement in Heimke suggests that an automatic mistrial is required:
At the conclusion of the court's instructions to the jury, counsel for plaintiffs 4 indicated to the court that he did not know how the instruction could now be corrected but that he wished to renew his objection. Counsel for defendant then suggested that the instruction be repeated in a corrected form; to which plaintiffs stated that this would only emphasize that particular aspect of the litigation. We think it sufficient to say that a party cannot be put to a choice of two evils, neither of which is of his making. We do not find a waiver of the error under these circumstances.
In that case, which involved an automobile collision, the plaintiffs refused to let the trial judge read the corrected instruction, and the defendant argued that this constituted waiver of the right to claim error on appeal. Although the court found no waiver, the important point is that the corrected instruction was never given to the jury. Thus, the jury was sent out for deliberations with the incorrect instruction, leaving the Supreme Court of Arizona no choice but to reverse. Accordingly, the statement regarding "choice of two evils" is dictum at most. See Kelch v. Courson, 7 Ariz.App. 365, 439 P.2d 528 (1968), where the court indicated that, if proper objection had been made to the contributory negligence charge, the trial court would presumably have corrected any errors in the form of the instruction.
The U. S. Supreme Court has made it clear that under the Erie doctrine 5 state law is not controlling over the Federal Rules of Civil Procedure. Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965). 6 Accordingly, state law is not controlling on matters covered by Rule 51. 7 5A Moore's Federal Practice, P 51.04 n. 3. Federal courts also follow their own rules, regardless of state legislation and practice, in the manner and method of giving instructions to the jury. Wright & Miller, Federal Practice and Procedure: Civil § 2555. Thus, the Eighth Circuit, in Stafford v. Southern Farm Bureau Casualty Ins. Co., 457 F.2d 366 (1972), held that the trial judge was not bound to follow a particular Arkansas Model Instruction; that he was only required to properly instruct the jury on all elements of the case in light of...
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