Waid v. Bergschneider

• Decision Date: 16 May 1963
• Docket Number: No. 7075,7075
• Citation: 381 P.2d 568,94 Ariz. 21
• Parties: Walter M. WAID, Jr., and Nina Waid, husband and wife, Appellants, v. William F. BERGSCHNEIDER and Christel Bergschneider, husband and wife, Appellees.
• Court: Arizona Supreme Court

Page 568

381 P.2d 568

94 Ariz. 21

Walter M. WAID, Jr., and Nina Waid, husband and wife, Appellants, v. William F. BERGSCHNEIDER and Christel Bergschneider, husband and wife, Appellees.

No. 7075.

Supreme Court of Arizona, In Banc.

May 16, 1963.

Richard N. Roylston, Tucson, for appellants.

Johnson & Howard, Tucson, for appellees.

BERNSTEIN, Chief Justice.

Appellants were plaintiffs in a personal injury action arising out of an automobile accident. Plaintiffs received a verdict from the jury. This appeal is taken from an order granting the defendants a new trial on the issue of damages.

The trial court ordered a new trial because 'there were improper remarks of the plaintiffs' counsel which conveyed to the jury the fact that the defendants were insured as to their liability and these remarks influenced to some extent the amount of the verdict; in the absence of such remarks, the Court would not have granted a New Trial by reason of the size of the Verdict alone.'

It is plaintiffs' contention that a new trial should not have been granted because it was defense counsel's own statement which provoked the remarks implying to the jury that the defendant was insured. In the course of defendants' closing argument, the following exchange took place:

Defense counsel: '* * * I want you to hold the plaintiffs to their proof in this matter under the Court's instructions, for this is a serious case. Eight Thousand Six Hundred Dollars is a lot of money to the plaintiffs. Eight Thousand Six Hundred Dollars is a lot of money to the defendants * * *.'

Plaintiffs' counsel: 'We object to the argument as improper on the ground that there is no evidence tending to show that the defendants will be required to personally pay any judgment rendered against them in this case.'

Defense counsel: 'We object to and protest the form of this objection.'

Plaintiffs' counsel: 'If Mr. Johnson will avow to the Court that his clients will personally have to pay this judgment, we will withdraw our objection.'

Defense counsel: 'I will avow to the Court that Eight Thousand Six Hundred Dollars is a lot of money to me and that I believe and presume it to be to the plaintiffs, this jury and the defendants.'

At the close of the arguments, the trial judge reserved decision on defendants' motion for a mistrial and the jury returned a verdict for the plaintiffs.

Plaintiffs contend that this is a case of invited error. They assert that any improper remarks made by plaintiffs' counsel were justified as a necessary response to defense counsel's argument. There is authority for this contention. ¹ We think, however, that the trial judge is in the best position to determine whether comments made during the trial are proper. He has heard the testimony and the arguments and has first-hand knowledge of the attorneys' demeanor. We do not think this is invited error.

In this case, it is pertinent to note the language of the court's order granting a new trial. It is categorically stated therein that 'the Court would not have granted a New Trial by reason of the size of the Verdict alone.' In other words, the trial court felt that the verdict was sustained by the evidence; nevertheless, being persuaded that counsels' remarks were improper, he granted a new trial. We fail to see in what way the defendant was prejudiced under these circumstances. Since the size of the verdict was warranted under the evidence we see no basis for assuming that the jury was influenced in their determination by the objectionable comments of counsel.

It is the law in this state that reversible error is committed when the existence or lack of insurance is brought into the case and prejudice results. Blue Bar Taxicab Etc. Co. v. Hudspeth, 25 Ariz. 287, 216 P. 246 (1923). Where prejudice does not result, however, a new trial is not proper. We think our recent decision in Muehlebach v. Mercer Mortuary, Inc., 93 Ariz. 60, 378 P.2d 741 (1963) is controlling. In that case we emphasized that a mistrial does not result from the mere mention of insurance. We said:

'There will be, of course, situations where the issue of insurance is injected into a case for a prejudicial purpose or where its discussion is of such a nature as to be prejudicial. In such a situation, a trial judge must grant a mistrial or a new trial. But he must not allow the bare mention of the word 'insurance' to call forth the conditioned response--'mistrial.' He must truly use his discretion.' 93 Ariz. at 65, 378 P.2d at 744.

Defendants contend that in the absence of a showing of an abuse of discretion the new trial granted by the trial judge must be sustained. The granting of a new trial on the ground of misconduct of attorneys is a matter over which the trial court may exercise broad discretion. Colfer v. Ballantyne, 89 Ariz. 408, 363 P.2d 588 (1961). It must appear to this Court that there was an abuse of that discretion before a new trial order will be over-turned. Zugsmith v. Mullins, 86 Ariz. 236, 344 P.2d 739 (1959). It is not the province of an appellate court to interfere with the sound exercise of discretion of a trial court. But as we also said in the Zugsmith case:

'It has been appreciated that meaningful review * * * is required to maintain the integrity of the jury trial system and the practical value of court adjudication.' 86 Ariz. at 237, 344 P.2d at 740.

There we also pointed out that a new trial should be granted only for a cause materially affecting the rights of the aggrieved party. We find that the rights of the defendants were not materially affected.

The new trial order is therefore vacated and the verdict reinstated.

JENNINGS and LOCKWOOD, JJ., concur.

STRUCKMEYER, Justice (dissenting).

It is my opinion that the majority erroneously interpret the trial court's minute entry of December 28th, 1959, relative to its reason for granting defendants' motion for a new trial. By minute entry of December 22nd, 1959, the court ordered a new trial as to the issue of the amount of damages only. Thereafter on December 28th it specified pursuant to Rule 59(m), Rules of Civil Procedure, 16 A.R.S., the basis for its order:

'That the order of December 22, 1959 granting a new trial herein was made for the reason that the court was of the opinion that there were improper remarks of the plaintiffs' counsel which conveyed to the jury the fact that the defendants were insured as to their liability and these remarks influenced to some extent the amount of the verdict; * * *.' (Emphasis supplied)

With this statement the trial court unequivocally indicated that the improper remarks concerning insurance influenced the amount of the verdict.

It is the duty of both this Court and a trial court where it appears that the verdict was a result of extrinsic considerations on the part of the jury to set aside the verdict and order a new trial. Medlock v. Florian, 42 Ariz. 558, 28 P.2d 621. Here, the trial court concluded that extrinsic considerations, the remarks of plaintiffs' counsel inferring insurance, did influence the amount of the verdict.

After its statement that the remarks influenced the amount of the verdict the trial court added:

'* * * in the absence of such remarks, the court would not have granted a new trial by reason of the size of the verdict alone'

meaning that the size alone in this case was not sufficient reason for upsetting the verdict. This is consistent with the principle repeatedly adhered to by this Court that where prejudicial matters do not occur in the course of a trial, in order to set aside a jury's verdict it must appear at first blush so excessive as to strike mankind as being beyond all measure, unreasonable and outrageous. Stallcup v. Rathbun, 76 Ariz. 63, 258 P.2d 821; Standard Oil Co. v. Shields, 58 Ariz. 239, 119 P.2d 116; United Verde Copper Co. v. Wiley, 20 Ariz. 525, 183 P. 737. The majority, however, ignore the unqualified pronouncement that 'these remarks influenced to some extent the amount of the verdict' in seizing upon the latter statement of the trial court upon which to rest the decision. A verdict may be within the amount of the damages asked and be sustainable as within the outer limits of the evidence, yet to an unprejudiced observer seem unrealistically large in the light of all the evidence. The trial judge did not say 'the size of the verdict was warranted by the evidence'. He said he 'would not have granted a new trial by reason of the size of the verdict alone.' The order of the trial court should affirmed.

There are two further points which should be enlarged upon since I consider the treatment by the majority as inadequate and tending to further confuse an admittedly difficult area of the law.

First, it is argued by plaintiffs that it was defense counsel's own statement which provoked the remarks and therefore the error was invited. Defense counsel was urging the jury 'to hold the plaintiffs to their proof * * * for this is a serious case', when he immediately thereafter stated that '$8,600.00 is a lot of money to the plaintiffs' and '$8,600.00 is a lot of money to the defendants'. In the light of the nature of the argument it is questionable whether the innuendo which plaintiffs' counsel sought to draw from the statement was in fact conveyed to the jury. I note that the trial judge who heard the argument and had the feel of the case did not consider defense counsel's statement as improper. Rather, he considered improper the subsequent remarks of plaintiffs' counsel. Here, the trial court in the exercise of its discretion believed that what occurred did influence the outcome of the case and appropriately ordered a new trial on the question of damages.

But if it be assumed that defense counsel's statement tended to imply there was no insurance, it still should not have been used as a springboard by plaintiffs' counsel to advise the jury that defendants did have insurance. Objection could have been made to the argument as improper without disclosing...