Swick v. White, No. 1

• Court: Court of Appeals of Arizona
• Writing for the Court: CASE; STEVENS, P.J., and DONOFRIO
• Citation: 504 P.2d 50,18 Ariz.App. 519
• Decision Date: 14 December 1972
• Docket Number: CA-CIV,No. 1
• Parties: Andrew SWICK and Harriet Swick, his wife, Appellants, v. Glenn Harry WHITE, Jr. and Vickie Marie White, his wife, Appellees. 1837.

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504 P.2d 50 18 Ariz.App. 519 Andrew SWICK and Harriet Swick, his wife, Appellants,
v.
Glenn Harry WHITE, Jr. and Vickie Marie White, his wife, Appellees. No. 1 CA-CIV 1837. Court of Appeals of Arizona, Division 1, Department A. Dec. 14, 1972.

David Neal Rosen, Ltd. by David Neal Rosen, Phoenix, for appellants.

O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears by Ralph E. Hunsaker, Phoenix, for appellees.

CASE, Judge.

This is an appeal from an order of the Maricopa County Superior Court denying a new trial after a jury verdict in favor of the defendants and against the plaintiffs. The parties herein will be referred to as they appeared in the trial court.

The facts presented in a light most favorable to sustaining the judgment of the trial court are as follows:

The instant action arises out of an automobile-pedestrian collision. On the evening of 21 December 1966, plaintiffs decided to walk to their church in order to deliver flowers to a Father McGuire. Plaintiffs[18 Ariz.App. 520]

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arrived at the church and after conversing with the Father for a few minutes, they began their walk home. it was approximately 6:45 P.M. when they began the return trip and the area in which they were walking was unlit except for Christmas tree lights approximately 250 feet away.

Plaintiffs were crossing East Main Street in Scottsdale, Arizona, and were headed for the sidewalk when Andrew Swick was struck by defendant Glenn Harry White, Jr.'s vehicle. There were no eyewitnesses to the actual impact and there were numerous conflicting reports as to defendant Glenn White's statements after the accident. Mr. Swick sustained serious injuries as a result of the collision.

At trial, plaintiffs attempted to introduce statements made by Mr. White immediately after the collision and later in the hospital. Mr. White allegedly stated to Mrs. Swick immediately after the collision:

'But you don't have to worry, I have very good insurance.'

Later that evening at the hospital, Mr. White allegedly stated, in the presence of plaintiffs' friend, Mr. Bergman:

'I hope you progress rapidly and get over this, and don't worry Mr. Swick, I have plenty of insurance.'

At conference prior to trial, the trial court ruled that the statements would be allowed with the deletion of the word 'insurance'. The trial judge stated on the record that he did not think the statements, as indicated, showed that Mr. White was, in effect, admitting fault.

Thereafter, during the trial, the following testimony by plaintiffs' witnesses was allowed:

(Mrs. Swick testified that Defendant White stated:) 'I saw a puddle of water and I accelerated to get away, and I'm awfully sorry; but you'll be taken care of.'

(Mr. Bergman testified that Mr. White) '. . . introduced himself and said that he was the driver of the car that struck him and expressed his deep sorrow and regret for what ensued and hoped that he would have a speedy recovery and said that 'don't worry, you will be taken care of".

Defendant Mr. White testified and denied telling Mrs. Swick at the scene that he was 'accelerating' but did not denny telling her 'not to worry'. Mr. White also denied the statement allegedly made at the hospital which indicated that he was at fault. The only statements he remembered making at the hospital were his assurances to Mr. Swick that he was in 'good hands' and would pull through.

The jury returned its verdict in favor of the defendants and plaintiffs' timely motion for a new trial was denied. This appeal followed.

The sole question determinative of this appeal is whether the trial court committed reversible error by compelling plaintiffs' witnesses to delete the word 'insurance' from their testimony.

It is the accepted rule and law in this State that reversible error is committed when the existence or lack of insurance is brought into the case and prejudice results. E. L. Jones Construction Co. v. Noland, 105 Ariz. 446, 466 P.2d 740 (1970); Waid v. Bergschneider, 94 Ariz. 21, 381 P.2d 568 (1963); Blue Bar Taxicab, etc., Co. v. Hudspeth, 25 Ariz. 287, 216 P. 246 (1923). The oft stated reason for its inadmissibility is concisely set forth in an annotation in 4 A.L.R.2d 761 at 765, as follows:

'Such evidence (insurance) is not only inadmissible because it ordinarily is irrelevant as to any of the issues in the case, but because it tends not only to influence jurors...