Southwest Cotton Co. v. Ryan

• Court: Arizona Supreme Court
• Writing for the Court: McALISTER, J.
• Citation: Southwest Cotton Co. v. Ryan, 22 Ariz. 520, 199 P. 124 (Ariz. 1921)
• Decision Date: 05 July 1921
• Docket Number: Civil 1817
• Parties: SOUTHWEST COTTON COMPANY, a Corporation, Appellant, v. JAMES RYAN, Appellee

199 P. 124

22 Ariz. 520

SOUTHWEST COTTON COMPANY, a Corporation, Appellant, v. JAMES RYAN, Appellee

Civil No. 1817

Supreme Court of Arizona

July 5, 1921

APPEAL from a judgment of the Superior Court of the County of Maricopa. F. H. Lyman, Judge. Reversed and remanded.

Mr. G P. Nevitt, for Appellant.

Mr. W L. Barnum and Mr. F. C. Struckmeyer, for Appellee.

OPINION

McALISTER, J.

Action for damages under the Employers' Liability Law (Civ. Code 1913, pars. 3153-3162). From a judgment in favor of plaintiff for $3,000, the Southwest Cotton Company, a corporation defendant, appeals.

It appears from the complaint that on April 13, 1918, while appellee, James Ryan, was engaged in the performance of his duties as an employee of the appellant company in a certain planing-mill owned by it, wherein mechanical power, to wit, a gasoline motor was used to operate machinery, he was injured by an accident arising out of, and in the course of, his employment and due to a condition or conditions of such occupation and employment, which accident occurred in substantially the following manner:

"The plaintiff, while working on a planer or jointer in said mill, engaged in the labor and service of his employment, to wit, as a jointer, while then and there in the exercise of due care for his own safety, was injured by said machine, to wit, said jointer, the right hand of the plaintiff being caught in said jointer, severing part of the thumb and forefinger of said right hand, rendering said right hand permanently crippled and maimed."

After demurring, appellant answered, further admitting the employment, its hazardous character, and that the injuries were suffered by appellee by reason of an accident occurring while he was engaged in such employment in the manner following:

"That the plaintiff while working on the planer or jointer in the said sawmill, or planing-mill, and while engaged in the labor and service of his employment, was injured by the jointer of the said machine by reason of the right hand of the plaintiff being caught in the said jointer and severing a part of the thumb and a portion of the forefinger of the said right hand."

It denies that the accident or injury arose out of, and in the course of, such employment, that it was due to a condition or conditions of such occupation or employment, and that the appellee was at the time thereof exercising due care and caution for his own safety, but alleges that it resulted solely from his own negligence and carelessness in placing or permitting his right hand to come in contact with the jointer of the planing-mill.

A number of errors are assigned, but a part of them are withdrawn specifically in the reply brief, while those it becomes necessary to discuss fall naturally under one or another of only a few propositions advanced by appellant. A motion for a new trial was made upon the ground that the verdict was reached by chance, and in its support there was filed the affidavit of W. J. Criswell, one of the twelve jurors who sat in the case, which, however, on motion of appellee, was stricken from the files. This ruling, together with the denial of the motion for a new trial, is assigned as error. The substance of the affidavit is that the jury, after deliberating and taking several ballots without reaching a verdict, "agreed by and between each of the jurors that each juryman would place on a slip of paper the amount of damages he thought the plaintiff should recover, and the amount which each juryman placed on his ballot would be added together and divided by twelve (that being the number of jurors), and the quotient derived would be the amount of the verdict the jury would render in favor of the plaintiff and the plaintiff's damages would be assessed at the amount of the quotient so obtained." According to the affidavit the verdict of $3,000 returned by the jury was arrived at in pursuance of this agreement.

This court held adversely to appellant's contention in the well-considered case of Hull v. Larson, 14 Ariz. 492, Ann. Cas. 1915C, 1145, 131 P. 668, wherein it was decided that the affidavit of a juror in a civil action could not be received as evidence of the alleged misconduct of a jury.

It is urged, however, that inasmuch as the record discloses that the verdict is signed by only ten of the twelve jurors, and that Criswell is not one of the ten, it is not his verdict, and therefore the rule that a juror is not allowed to impeach his own verdict has no application. It may be that it is not the verdict Criswell wanted to render, but it is none the less the verdict of the jury of which he was a member. Twelve men constitute a legal jury, and the fact that nine, ten, or eleven of them may reach a result representing the whole body does not render those failing to agree any the less jurors and just as necessary to a final disposition of the case as those who signed the verdict. They have gained their information by reason of membership on the jury and have taken part in all of its deliberations, the same as those who agreed to the verdict. There can be no reason why such a principle as this, based as it is largely upon public policy, should not apply to each member of the jury, whether he agreed to the verdict or not. The order striking the affidavit from the files was correct, and, inasmuch as there was no other evidence of the alleged misconduct of the jury in returning a "quotient verdict," the denial of the motion for a new trial based thereon was proper.

Both appellant and appellee requested an instruction on contributory negligence. They were worded somewhat differently, but in effect were the same. The court gave the one requested by appellee, and appellant now assigns error upon the giving of any instruction on this subject upon the ground that contributory negligence is not pleaded in the defendant's answer. It is not claimed that appellant's proffered instruction should have been given instead of appellee's, but that there was nothing in the record justifying the giving of either, since the defendant had not made contributory negligence an issue. He cites in substantiation of his position the two recent decisions of this court. Consolidated Arizona Smelting Co. v. Gonzales, 21 Ariz. 628, 193 P. 304, and Inspiration Consolidated Copper Co. v. Taylor, 21 Ariz. 632, 193 P. 305, wherein it is specifically held that it is error to instruct on contributory negligence when it has not been raised by the defendant.

There can be no question but that under these authorities it was error to give the instruction, but is appellant in a position to claim the benefit of it? This court, in the case of Sisson v. State, 16 Ariz. 170, 141 P. 713, refused to reverse a case upon the giving of an erroneous instruction at the request of the defendant, and in so doing used the following language:

"The policy of reversing cases at the instance of a defendant in a criminal cause because of error occurring by his invitation and request would, indeed, be unwise, for it must readily occur to anyone that the pursuit of such a course could not be fraught otherwise than with most mischievous consequences in the administration of the law. A party by clever and ingenious argument might in the hurry of a trial persuade a court to give an instruction which, upon a critical examination, would be found not good in point of law. The court should, of course, refuse to give an erroneous instruction, but, if one such is given, the party urging it may not be heard in this court to decry a result fashioned by his own handiwork. The toleration of such a procedure would tend often, perhaps, to encourage parties to strive in an endeavor to catch the court, and thus predicate a foundation for reversible error."

The reasons for the holding apply just as strongly in a civil cause. There is, of course, in this case no question of the sincerity of both appellant and appellee in requesting the instruction; for at that time it had not been decided that it was error to instruct on contributory negligence unless it had made an issue by the answer, though it was none the less the law. It is not thought for a moment that either request was prompted by a desire to lead the court into error, but it is apparent from the reasoning of Justice FRANKLIN that there might be instances in which counsel would not be governed by the proper motives, and to establish, therefore, a precedent fraught with such mischievous possibilities would be dangerous. Appellant cannot complain of an error which he has invited. The fact that appellee also made the request cannot aid appellant, because an erroneous instruction requested by both sides would more likely lead to its being given than if it were asked by only one.

It is urged that it was error to refuse to direct a verdict for appellant at the close of appellee's case. The motion was made upon the ground of a total failure of proof. Appellee had introduced no evidence, nor offered any, in support of his allegations that the accident causing the injury arose out of, and in the course of, his employment, was due to a condition or conditions of such employment, and occurred while he was in the exercise of due care for his own safety. These allegations the answer specifically denies, but appellee, acting upon the theory that it admits them as a necessary conclusion from its admission of the primary facts and circumstances surrounding the accident, rested his case without offering any evidence whatever in their support. The only fact admitted, in addition to the employment, its hazardous character, and the suffering of the injury while engaged in such employment, is that appellee "was injured by the jointer of the said machine by reason of the right hand of the plaintiff...