Shetter v. Rochelle
| Citation | 411 P.2d 45,2 Ariz.App. 607 |
| Decision Date | 25 February 1966 |
| Docket Number | CA-CIV,No. 2,2 |
| Parties | George A. SHETTER, Appellant, v. Louise P. ROCHELLE, Appellee. 95. |
| Court | Arizona Court of Appeals |
Chandler, Tullar, Udall & Richmond, by Robert S. Tullar, Tucson, for appellant.
Arthur W. Vance, Jr., Tucson, for appellee.
Appellee's motion for rehearing has raised a matter not presented in the briefs concerning whether this action should be sent back for a new trial or reversed with instructions to enter judgment for the defendant.
The appellee has cited and quoted to this court general statements in the law which might seem to support the contention made that proper appellate procedure at this posture of the case would be to send this case back for a new trial. Among the statements so quoted is:
'And generally it may be said that when it appears that the plaintiff can probably make a better showing on his trial, the court, on reversing the judgment, should remand for a new trial.'
5 Am. Jur. 2d, Appeal and Error § 972, p. 400 (1962)
An examination of authorities from various jurisdictions indicates to this court that the situation in other jurisdictions in less than clear 1 and that the above quotation has some case law to support it. However, we apprehend the law of this state to be more clearcut and less conducive to protracted litigation than the view expressed above. Controlling law we believe to be stated in Crouch v. Truman, 84 Ariz. 360, 328 P.2d 614 (1958). This decision interprets a previous decision of our Supreme Court, Crouch v. Pixler, 83 Ariz. 310, 315, 320 P.2d 943, 946 (1958), in that portion thereof which ordered:
'The judgment as to the $2,500 is affirmed, and reversed as to the $800 attorney's fees.'
The second decision held that the above order was intended to cause judgment to be entered for the defendant as to the $800.00 claim for attorney's fees because the error resulting in this judgment was one '* * * committed after trial or verdict * * *.' (84 Ariz. 360, 362, 328 P.2d 614, 615 (1958).) The error established by the Supreme Court in Crouch v. Pixler, supra, was that:
'The issue as to reasonable attorney's fees was not submitted to the jury, and no evidence was adduced as to the services rendered by the attorney or the reasonable value thereof.'
83 Ariz. 310, 315, 320 P.2d 943, 946 (1958)
In holding that no new trial was required under these circumstances, our Supreme Court said:
'When a party has full and complete opportunity to develop his case but does not do so and the case is reversed for this reason, the law does not call for a new trial to permit him to do what he should have done in the first trial.' 84 Ariz. 360, 362, 328 P.2d 614, 615 (1958).
An examination of the record before us discloss that there were no rulings by the trial court that impeded the plaintiff in this action from putting on her case fully. The issues tried to the court were those of negligence, breach of warranty, and failure to warn of inherent risks. One of the issues raised throughout the trial by the defendant's counsel was the lack of proof of proximate cause. In a motion for directed verdict made both at the close of the plaintiff's case and at the close of all of the evidence, one of the chief reasons for asking that the trial court direct a verdict for the defendant was that there was no showing of reliance by the plaintiff on any failure to warn. Considerable argument was made to the effect that the plaintiff's consent to a subsequent similar operation by Dr. Burr Conclusively showed lack of causation. Among the language expressing this basic contention was the statement of defense counsel in making motion for directed verdict at the close of plaintiff's case: '* * * there is not a scintilla of evidence to support the requisite condition that had Shetter told her there might have been these bad results she might not have had the operation done.' Likewise, objections posed by the defendant in the settling of instructions clearly established that one of the principal defenses raised was that there was no showing of proximate causation.
This is not a case reversed for insufficiency of the...
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