Simpson v. Heiderich

• Decision Date: 21 October 1966
• Docket Number: CA-CIV
• Citation: 4 Ariz.App. 232,419 P.2d 362
• Parties: M. O. SIMPSON and Star Simpson, husband and wife, Appellants, v. Margarete HEIDERICH, Appellee. * ,261.
• Court: Arizona Court of Appeals

Page 362

419 P.2d 362

4 Ariz.App. 232

M. O. SIMPSON and Star Simpson, husband and wife, Appellants, v. Margarete HEIDERICH, Appellee. ^*

,2 CA-CIV 61.

Court of Appeals of Arizona.

Oct. 21, 1966.

Rehearing Denied Nov. 30, 1966.

Review Denied Dec. 27, 1966.

Murphy & Vinson, by James M. Murphy, Tucson, for appellants.

Miller & Pitt, by Robert F. Miller, Tucson, for appellee.

HATHAWAY, Judge.

M. O. Simpson and Star Simpson, husband and wife, were defendants in a personal injury action tried in superior court, Pima County, Arizona, and have appealed from a judgment entered on a jury verdict in favor of the plaintiff, Margarete Heiderich.

The appellants, owners of the Willow Spring Ranch located near Oracle in Pinal County, Arizona, hired the appellee, Mrs. Margarete Heiderich, as cook and housekeeper on November 10, 1960. One of her duties was to prepare food for two Rhodesian Ridgeback dogs who were on a special diet for breeding purposes.

On December 1, 1960, while the Simpsons were away on a trip, the dogs became excited when two men came to the front door. The dogs rushed into the kitchen, one of them jumped on Mrs. Heiderich and the other ran between her legs, causing her to fall whereby she sustained injuries to her left knee. The grounds upon which reversal is sought are (1) misconduct of a juror, (2) failure ot furnish a medical report, and (3) a psychiatrist's testimony.

MISCONDUCT OF JUROR

During the course of the trial, one of appellee's witnesses encountered a juror away from the courtroom and a conversation ensued. Appellee's counsel, upon learning of the conversation, reproted its occurrence to the court. The witness testified in chambers and at subsequent contempt proceedings that the juror had commented 'tell the woman she hasn't anything to worry about, we are going to decide in her favor,' and other remarks in that vein. The juror denied making any statement relative to the outcome of the case. Both denied, under oath, that there was any prejudicial influence or intent to cause such. There was no showing of any attempt to influence the juror.

The appellants assign error to the trial court's refusal to grant the appellants' motion for a mistrial in view of the witness' discussion with the trial juror.

We note that the verdict was unanimous and the result would have been the same even if the offending juror had voted contrary to the majority. There is no showing that any of the other jurors were influenced by the juror's misconduct nor that the appellants were prejudiced in any way. We cannot assume prejudice. In the absence of a showing of prejudice we will not regard the misconduct of the juror as prejudicial. Anderson v. Pacific Tank Lines, Inc., 52 Cal.App.2d 244, 126 P.2d 153, 156 (1942).

Counsel for the appellee has cited the following which we feel is pertinent:

'Misconduct of a juror or jurors warrants a new trial only where the verdict was, or probably was, influenced thereby to the prejudice of the complaining party; and accordingly a new trial is not warranted where it is not shown that the verdict was in any way influenced or that there was even a remote possibility of its being so influenced by the misconduct of the jury.' 66 C.J.S. New Trial § 61.

Also:

'If the facts as to misconduct leave room for a reasonable supposition that even a single juror may have been influenced thereby, it will not be disregarded as harmless, Except in those states where unanimous verdict is not required, in which case misconduct will be deemed harmless if a sufficient number assent to the verdict to sustain it, excluding those who were in any way cognizant of, or affected by, the misconduct, or if the juror in connection with whom the claimed misconduct occurred in fact voted against the verdict returned for the appellee.' 5B C.J.S. Appeal and Error § 1780. (Emphasis supplied)

The rule has been enunciated in Arizona that any prejudice to a litigant must be 'affirmatively probable' to constitute grounds to set aside the verdict or grant a new trial. Jacob v. Miner, 67 Ariz. 109, 113, 191 P.2d 734, (1948); Webb v. Hardin, 53 Ariz. 310, 313, 89 P.2d 30 (1939). In view of the fact that the verdict was unanimous and the experienced trial judge determined that no prejudice had resulted, we are not disposed to disturb his ruling. We assume that the appellants' counsel has been unable to find authority in support of his position since he cites none.

Though no prejudice is shown in the record of this case, it is imperative that the integrity of juries remain unassailable. Jurors must avoid the very appearance of corruption in discharging their duty. We endorse the trial court's thorough inquiry and approve of the sanctions imposed.

MEDICAL REPORT

The appellants next claim that the court abused its discretion and committed reversible error by allowing the testimony of a psychiatrist who had failed to furnish them with a medical report of his findings. It appears that the appellants' attorneys had caused an orthopedic examination of appellee to be made and had furnished a report of that examination to her counsel. Written demand was then made under A.R.C.P. Rule 35(b), 16 A.R.S. requesting that the appellee furnish appellants' counsel 'with any and all reports of medical examinations previously or hereafter made of Mrs. Heiderich.'

Rule 35(b) provides in part:

'1. If requested by the person examined, the party causing the examination to be made shall deliver to him a copy of a detailed written report of the examining physician setting out his findings and conclusions. After such request and delivery the party causing the examination to be made shall be entitled upon request to receive from the party examined a like report of any examination, previously or thereafter made, of the same mental or physical condition. If the party examined refuses to deliver such report the court on motion and notice may make an order requiring delivery on such terms as are just, and if a physician fails or refuses to make such a report, the court may exclude his testimony if offered at the trial.'

After the case had been set for trial, Doctor Lindsay Beaton, a psychiatrist, examined the appellee but the appellants were not furnished with a report of his examination pursuant to their request. When the doctor was called to testify at tiral, appellants' counsel invoked Rule 35(b) as grounds for excluding his testimony.

Appellee's counsel points out that the appellants' counsel were alerted to the psychiatric aspects of the case by other medical reports supplied to them by the appellee and by Dr. Warren D. Eddy who had examined the appellee at the appellants' request and had reported:

'* * * it is rather obvious at the present time that She has a tremendous functional overlay which makes accurate evaluation of the severity of her symptoms impossible. Her physical findings tend to belie anymore than a mild amount of disability as a result of her pathology.' (Emphasis supplied)

The other reports contained pointed references to a mental disability. Dr. Neumann's report, received by appellants on August 8, 1962 stated:

'She subsequently saw Dr. Charles Elkins who diagnosed 'psychic shock.' The patient adds that when she lies down she hears 'carnival noises' in her head and at times must sit up half the night.'

'In conclusion, I believe That most of the patient's symptoms at this time are on a functional basis. I believe that this is best characterized as an agitated depression of a reactive nature. I believe further that the patient should have definitive therapy for this condition; I would recommend that she be placed on one of the anti-depressant drugs.' (Emphasis supplied)

Dr. Price's report, received by appellants on August 8, 1962 stated:

'The diagnoses were: Severe Contusion and hematoma of the left leg, laceration of the scalp, Post-traumatic syndrome secondary to the above injuries and the circumstances under which they occurred, mild anemia and possible mild cystitis.

'She was referred to the neurosurgeon Charles W. Elkins, M.D., for a consultation. Dr. Elkins informed me that he felt the patient was Suffering from psychic results of her accident and the fright which followed the accident.

'She had shown some improvement during the five months she was under my care, but I would anticipate that she will continue to suffer from the effects of the accident and the Psychic trauma for perhaps another year.' Emphasis supplied)

At the pretrial conference, appellants' counsel should have been aware of the fact of Dr. Beaton's psychiatric examination when he refused to stipulate to medical expenses of the appellee. These included the bill of Dr. Beaton which was set forth in the itemized statement of claimed damages in the appellee's pretrial memorandum. At pretrial the appellee's attorney opposed appellants' request for a continuance on the ground that some of the doctors listed on the pretrial memorandum, Dr. Beaton among them, would be witnesses for the appellee and had been committed to a definite date for their appearance in court. The requested continuance was denied for that reason.

We agree with appellants that Rule 35(b) imposed a duty upon appellee's counsel to deliver Dr. Beaton's report (existence of which is not disputed) to appellants. This rule is an important discovery tool. The whole object of discovery is that mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation. Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451, 460 (1947).

The present wording of Rule 35(b) supports the trial court's ruling. The only instance in which exclusion of medical testimony is authorized is when the doctor himself failed or refused to make such report after being ordered by the court to do so. Since the court's discretion to exclude the testimony could be exercised only after (1) refusal of the examining party to deliver the report, (2) motion and notice, (3) an...