Southern Arizona Freight Lines, Ltd. v. Jackson

• Decision Date: 14 December 1936
• Docket Number: Civil 3718
• Citation: 48 Ariz. 509,63 P.2d 193
• Parties: SOUTHERN ARIZONA FREIGHT LINES, LTD., a Corporation, and E. B. MORRISON, Appellants, v. BUD JACKSON, Appellee
• Court: Arizona Supreme Court

63 P.2d 193

48 Ariz. 509

SOUTHERN ARIZONA FREIGHT LINES, LTD., a Corporation, and E. B. MORRISON, Appellants, v. BUD JACKSON, Appellee

Civil No. 3718

Supreme Court of Arizona

December 14, 1936

APPEAL from an order of the Superior Court of the County of Maricopa. G. A. Rodgers, Judge. Order granting new trial reversed and cause remanded, with instructions.

Messrs Sloan, McKesson & Scott, for Appellants.

Messrs Cox & Moore, for Appellee.

OPINION

LOCKWOOD, C.J.

This is an appeal by Southern Arizona Freight Lines, Limited, a corporation, and E. B. Morrison, hereinafter called defendants, from an order of the Superior Court of Maricopa County granting to Bud Jackson, hereinafter called plaintiff a new trial, in an action brought by plaintiff against defendants, wherein the jury rendered a verdict in favor of the latter.

The issues presented to us are purely legal, and the facts on which they are based may be stated as follows: Plaintiff brought suit against defendants to recover damages for personal injuries which he alleged he received on account of the negligence of defendant Morrison, who was in the employ of the defendant corporation. The case was tried to a jury, which returned a verdict in favor of the defendants, and thereafter plaintiff moved for a new trial. The court was apparently is considerable doubt as to whether the new trial should be granted, for it made various orders in regard thereto, but finally, nearly nine months after the motion was made, it was granted, and from this order the appeal was taken.

The formal motion for new trial was based upon the following grounds:

"(1) The court erred in its instructions to the jury.

"(2) The defendant E. B. Morrison wilfully introduced false testimony i the cause.

"(3) Misconduct of the attorney for the defendants.

"(4) Misconduct of the jury."

The plaintiff, asrequired by the rules of court, specified fully the points which he wished to present under the motion. The court, however, in granting it, in no manner indicated upon which grounds it was granted, and we are left to conjecture on that point. It is, of course, the rule in this jurisdiction that, when there are several grounds set up in a motion for new trial and the motion is granted without the court indicating upon which grounds its action is based, if any of the reasons stated in the motion be legally sufficient, we must presume the court acted for such reasons. Huntsman v. First Nat. Bank, 29 Ariz. 574, 243 P. 598; Young Mines Co., Ltd., v. Citizens' State Bank, 37 Ariz. 521, 296 P. 247. It is also the law that the granting of a new trial is, to a very great extent discretionary with the trial court, and an appellate court is much more reluctant about disturbing an order granting than one denying a new trial. This discretion, however, although broad, is a legal and not an arbitrary discretion, and must be exercised in a legal manner. Sharpensteen v. Sanguinetti, 33 Ariz. 110, 262 P. 609; Southern Pac. Co. v. Shults, 37 Ariz. 142, 290 P. 152. It is therefore necessary for the appellant in a case like this to take up each ground set forth in the motion and show that no one of them justifies the action of the trial court. A new trial should be granted only when the trial court believes that there has been some error in the conduct of the original trial which, in all probability, has affected the verdict. It, therefore, it appears clearly from the record that there was no error in any of the matters presented by the motion for new trial, it would be an abuse of discretion for the court to grant it, and the court, in considering the motion, can consider only the grounds set forth therein, and we must presume that it acted upon one of such grounds. Southwest Hay etc. Co. v. Young, 21 Ariz. 405, 189 P. 244; § 3848, Rev. Code 1928; 46 C.J. 317, and notes.

We consider, therefore, the various alleged errors raised by the motion for new trial. Except in cases where the motion is based on the ground that the verdict it contrary to the weight of the evidence, in determining whether prejudicial error was committed, for of course it is only that kind of error which would justify the granting of a new trial, we think the best way to approach the case is to assume that the appeal was taken from a judgment in favor of defendants, and then ask ourself, Does the motion for new trial point out any errors which would require us to reverse such a judgment? We consider first the alleged erroneous instructions. It is the rule in this jurisdiction that instructions must be considered as a whole, and that a case will not be reversed when the alleged error is predicated on an isolated part of the instructions, unless it appears that the question instruction, when considered in connection with all the instructions in the case, was calculated to mislead the jury as to the law. Quong Yu v. Territory, 12 Ariz. 183, 100 P. 462; Macias v. State, 39 Ariz. 303, 6 P.2d 423.

The first objection to the instructions is that the court told the jury that the burden was on the plaintiff to prove, by a preponderance of the evidence, every material allegation of his complaint which was denied by defendants, but did not explain to the jury just which allegations were material. The instruction is, of course, a stock one, assumed for years to be correct, nor does plaintiff claim that it was wrong of itself, but rather that the court did not make it complete by pointing out which allegations were material and which were not. It is a sufficient reply to this to state that the record shows that the court, after completing its instructions, asked counsel whether they desired any further instructions, and that none were requested. We have held that, if counsel wish to have any instructions made more explicit or enlarged upon, unless there is a request made to that effect, it is not error for the court to fail to enlarge the instruction of its own motion. Kinman v. Grousky, 46 Ariz. 191, 49 P.2d 624.

The next alleged error is that the court instructed the jury it was necessary for the plaintiff to sustain his burden of proof to the satisfaction of the jury, when the only burden of proof necessary is by a preponderance of the evidence. The court gave careful and elaborate instructions upon this point, and we are satisfied that, when taken as a whole, no jury could have been misled thereby. The jury was told that the plaintiff must prove his case by a preponderance of the evidence, and then the court fully explained what was meant by that phrase. We find no error in this particular.

The third objection is that the court instructed the jury that the plaintiff must prove every material allegation of his complaint, when all that was required of the plaintiff was that he prove sufficient of the allegations to show negligence on the part of the defendants. We think this instruction falls under the rule set forth under the first objection. The court pointed out the different allegations of negligence, and then told the jury, in substance, that, if it appeared that the defendant were negligent in any respect, the plaintiff could recover. We think, in the absence of a request for further instructions, this was sufficient, for no reasonably intelligent jury could imagine for a minute that it was necessary, in order for the plaintiff to recover, that he prove all four of the alleged acts of negligence occurred.

The fifth objection is that the court, by its instructions, submitted the issue of contributory negligence to the jury when it was not pleaded by the defendants. We find the court instructed the jury on the subject of sole negligence, but nothing appears which even suggests the issue of contributory negligence. Examining all of the instructions singly and together, we find they present, perhaps to an unusual degree, an accurate and clear statement of the law governing actions of this nature, and are satisfied the jury could have been in no way misled as to their duty thereby. If the motion was granted upon the basis of erroneous instructions, the court was in error.

The next ground for the motion is that the defendant Morrison wilfully introduced false testimony in the case. The facts on which this objection was based are as follows: That plaintiff was injured by his body coming into contact with a truck driven by defendant Morrison is not disputed. The real issue was as to whether Morrison was driving the truck in a negligent manner, or whether plaintiff was so negligent that his conduct was the sole cause of the accident. In the course of the trial, plaintiff's counsel was questioning defendant Morrison, as a witness under the statute, and went into an elaborate examination as to the construction appearance, and manner of operation of the truck. After this had continued for some...