KOELSCH, Circuit Judge.
This is an action for wrongful death under the statutes of Arizona.
Jurisdiction of the District Court is based upon diversity of citizenship.
On August 24, 1957 Robert C. Frazier was instantly killed by a rockslide at the site of the Glen Canyon Dam near Page, Arizona. He was then working at the bottom of the canyon on the westerly side of the Colorado River where his employer, Mountain States Construction Company, was engaged in driving a tunnel through which to divert the water of the river while the dam was being constructed.
Thereafter Bernice M. Frazier, his surviving widow, on behalf of herself and the decedent’s four minor children, commenced this action in the District Court for damages against Merritt-Chapman & Scott Corporation, the company building the dam. She charged in her complaint that the defendant, in the course of excavating near the rim of the canyon above the place where Frazier was working, had negligently caused the fatal slide. The
jury rendered a verdict in favor of plaintiff, judgment was duly entered, and the defendant has appealed.
Defendant contends that the District Court lacked jurisdiction over the subject matter of this suit because before plaintiff filed her complaint the cause of action for Frazier’s death had been irrevocably vested in the State of Arizona for the benefit of the Workmen’s Compensation Fund of that State.
The Workmen’s Compensation Act of Arizona extends monetary benefits to the dependents of an employee who, while engaged in his duties, is killed by the wrongful act of a third person not in the same employ. However, such dependents may not claim the death benefits available to them under the Act and in addition prosecute the cause of action for wrongful death: they must choose between the two rights (State ex rel. Industrial Comm. v. Reese, 1952, 74 Ariz. 425, 250 P.2d 1001). The Act also provides that if the “election” is to take compensation then “the claim against such other person shall be assigned to the state for the benefit of the compensation fund or to the person liable for the payment thereof” (Sec. 23-1023, Ariz.Rev.Stat.) and that a “ * * * legal representative in event death results, who makes application for an award * * * waives the right to exercise any option to institute proceedings in court. * * * ” Sec. 23-1024, subd. A., Ariz.Rev.Stat. However, an application for an award of death benefits will constitute the requisite “election” (which effects the transfer of the cause of action to the state by operation of law (Moseley v. Lily Ice Cream Co., 1931, 38 Ariz. 417, 300 P. 958) ) if, but only if, the applicant when filing the application has knowledge “(1) of the alternative remedies and (2) that the acceptance of one waives the right to the other [citations omitted]. With this construction Sec. 56-950, supra (i. e., Sec. 23-1024, Ariz.Rev.Stat.), is constitutional.
If the applicant does not have this knowledge, whether his ignorance be one of law or fact, he has in fact made no binding election.” State ex rel. Industrial Comm. v. Pressley, 1952, 74 Ariz. 412, 416, 250 P.2d 992, 994.
Defendant initially raised the issue of jurisdiction in the District Court by motion for summary judgment. This motion was denied, defendant then renewed the objection and was granted a hearing on the issue. The evidence was undisputed: Mrs. Frazier had applied for benefits following her husband’s death, but testified that at the time she was ignorant of her right to bring suit against defendant. She did not learn of this right until shortly before December 3, 1957, the date when the Industrial Commission of Arizona entered an award in favor of Mrs. Frazier and her children. It also appears that on December 23, 1957, Mrs. Frazier, by an instrument entitled “Election of Remedy,” notified the Industrial Commission that she elected to prosecute the cause of action against the wrongdoer, and the Commission, on January 14,1958 made an order suspending and withholding payment under the award. No payments have ever been made.
At the conclusion of the hearing, the District Court rejected the defendant’s objections to jurisdiction, saying:
“The essential finding is that the plaintiff, Bernice Frazier at the time when she made the claim for compensation did not know of her right to
elect to bring an action against the third party as provided by the statute ; that thereafter when advised of her rights, she promptly made an election in the light of her alternative benefits, and that the election was timely and validly asserted, and that accordingly this Court has jurisdiction of this action, the Court concludes as a matter of law.
“The objection to the jurisdiction of this Court is denied.”
Defendant does not contend that this conclusion of the District Court lacks evidentiary support but rather vigorously urges that the award which the Commission made on December 3, 1957 pursuant to plaintiff’s application constituted an adjudication of all matters essential to an allowance of death benefits including the fact that plaintiff had made a valid election; and that this award was a final one which under Rule 37 of the Commission may not be set aside, modified or otherwise disturbed unless a petition for rehearing is filed within twenty days of the service of the award.
Defendant then concludes that “ * * * the Commission lost ‘power to deal with the case’ for the lack of a timely petition for rehearing; re-examination of the award was forever foreclosed. The award ‘became final and not subject to reversal by the commission.’ ”
However, we must disagree. The commission still had jurisdiction over the matter on December 23, 1957, for twenty days had not yet elapsed. By filing the “Election Remedies” on that date, the defendant notified the commission that she had never waived her right to seek damages.
If the “Election” was to be countenanced the award could not stand. In addition, as a petition for rehearing the “Election” would prevent the award from becoming final and would preserve and continue the jurisdiction of the commission “to enter into such further proceedings as will result in a proper award.” Smith v. Industrial Comm., 1959, 87 Ariz. 69, 347 P.2d 1010, 1011.
The “Record of Commission Action” of January 14, 1957, wherein the order of the Commission appears, unmistakably demonstrates that the “Election” was accepted and dealt with by that body as an application for rehearing.
By that order the Commission conformed the
award to the “Election” making the-former subject to and contingent upon plaintiff’s first asserting a suit for damages. After such suit the award would be effective but only if plaintiff’s recovery was less than the amount of the death benefits established by the award. In that event, plaintiff would be entitled to the difference.
Following the District Court’s decision on the Motion to Determine Jurisdiction and Motion for Summary Judgment, defendant commenced a suit in the Superior Court of Arizona under the Declaratory Judgment Act of that State and at the same time moved the District Court to suspend its proceedings pending the outcome of that suit. The denial of a stay is also assigned as error.
The issues tendered by defendant’s complaint in the State Court were essentially the same as those presented to the District Court by defendant’s Motion to Determine Jurisdiction and for Summary Judgment. Defendant, however, urges that since their resolution rested upon underlying questions.of local law not the subject of statute nor as yet declared by the highest court of Arizona, the District Court “should have deferred its decision with respect to matters of local law until those issues could have been decided with finality in an action then pending in the state court.”
We conclude that the lower court did not abuse its discretion by refusing to stay the proceeding before it.
The defendant had already submitted these very issues to the District Court and only after an adverse decision solicited the State Court to pass upon- them. Justification for the denial of the stay might well be rested on that fact. However, there is a more cogent reason for our conclusion. Although the decision of a federal court on a doubtful issue of state law has been characterized as “ * * * a forecast rather than a determination, * * * a tentative answer which may be displaced tomorrow by a state adjudication,” (Railroad Comm. of Texas v. Pullman Co., 1941, 312 U.S. 496, 499, 500, 61 S.Ct. 643, 645, 85 L.Ed. 971) the Supreme Court has also repeatedly emphasized “ * * * the duty of the federal courts, if their jurisdiction is properly invoked, to decide questions of state law whenever necessary to the rendition of a judgment.”
Moreover, that court has held that the mere fact the District Court in the exercise of its diversity jurisdiction is obliged to make decisions based upon its interpretation of state law is not alone
sufficient ground for declining jurisdiction. Meredith v. City of Winter Haven, 1943, 320 U.S. 228, 234, 64 S.Ct. 7, 88 L.Ed. 9. In this connection it was declared that while “[t]he submission of special issues [to a state court] is a useful device in judicial administration in such circumstances as existed in the Magnolia, Spector, Fieldcrest and Pullman cases, supra
* * * in the absence of special circumstances, 320 U.S. at [pages] 236, 237, [64 S.Ct. at pages 11, 12, 88 L.Ed. 9], it is not to be used to impede the normal course of action where federal courts have been granted jurisdiction of the controversy.” Propper v. Clark, 1949, 337 U.S. 472, 492, 69 S.Ct. 1333, 1344, 93 L.Ed. 1480. Here there were no problems of constitutionality or compelling considerations of policy present which constitute the “special circumstances” that would require or merit a stay to enable defendant to secure from the state court a “definitive answer” to the questions presented.
The contention that the District Court erred in refusing to admit evidence of the award and its present value requires but little comment. Even assuming the award had a present value, this proof, offered for the purpose of mitigating damages, was clearly irrelevant. It is well established -that “ * * * liability of third party tort-feasors is not intended to be disturbed by the Act” and that payments by an employer or an award by the Industrial Commission do not and cannot reduce such liability. State v. Pressley, supra, at page 997 of 250 P.2d; see also, Siebrand v. Gossnell, 9 Cir., 1956, 234 F.2d 81; Powell v. Wagner, D.C.Wis.1959, 178 F.Supp. 345; Annotation 95 A.L.R. 515.
Defendant also complains of the refusal of the trial court to reopen the case for additional evidence. Several witnesses, among them Cooper for the plaintiff and Moore for the defendant, gave detailed “eye witness” accounts of the rock slide and of the accident. After both sides had rested and at the conclusion of the opening argument for plaintiff, counsel for defendant moved to reopen the case and to be allowed to recall Moore to testify that Cooper did not arrive at the scene until after the accident occurred. Counsel asserted that this evidence was only discovered immediately before the motion was made.
“Whether a case should be reopened for new testimony is peculiarly a matter within the discretion of the trial judge * * *.” and this record does not show an abuse of that discretion. Anzano v. Metropolitan Life Ins. Co. of N. Y., 3 Cir., 1941, 118 F.2d 430, 435; see also, Welch v. Grindle, 9 Cir., 1957, 251 F.2d 671.
Defendant’s lack of diligence is apparent. Cooper testified about the matter as plaintiff’s first witness, and several days elapsed before defendant was put to its defense. The proposed evidence was readily available and defendant had ample opportunity in the interim. Moreover, the evidence, being primarily impeaching in character, was related to a collateral issue. “Appellate courts will not ordinarily hold that the trial court has abused its discretion in refusing to open a case for further testimony, when such testimony * * * tends only to-affect the credibility of witnesses **." Stipich v. Krilich, 1922, 122 Wash. 306, 210 P. 788, 789, 215 P. 9; Chemical Delinting Co. v. Jackson, 5 Cir., 1952, 193
F.2d 123; Slappey v. United States, 5 Cir., 1940, 110 F.2d 528.
A further contention is that counsel for plaintiff was guilty of such misconduct as to entitle defendant to a new trial. The particular episode relied upon by defendant occurred during the redirect examination of Cooper, the construction superintendent of Mountain States Construction Co. After establishing that the Bureau of Reclamation had made an investigation of the accident, counsel asked the witness whether the Bureau held Mountain States responsible. ■The court ruled the question out on defendant’s objection and directed the jury to disregard the negative answer which the witness had already given. Counsel then asked whether after the accident the Bureau had suggested that Mountain States discontinue any of its methods or that it adopt other procedures. These questions were answered without objection. Thereupon counsel caused a document to be marked for identification and in addressing the witness, said: “You are aware, are you not, Mr. Cooper, that the Bureau of Reclamation made an official report of this investigation?” The witness answered, “I’m sure they did, yes, of the bureau were calculated to and did by indirection and insinuation get before the jury evidence that was so highly prejudicial as to effectively deny it a fair trial. This contention can best be answered by the following excerpt from Selaster v. Simmons, 1932, 39 Ariz. 432, 7 P.2d 258, 260:
Defendant argues that these questions and this use of the inadmissible report sir.”
“However, all these things took place in the presence of the trial cqurt, and upon a motion for new trial were urged upon that court. The motion was denied, and in such denial they were necessarily held not to have prejudiced defendants’ rights. The supervision of trials is committed to the trial court, and in matters involving the conduct of counsel, as well as other trial matters, unless it clearly appears that some prejudice has resulted, we think we should defer to the decision and judgment of the trial court. That court had the whole picture before it and was better qualified to pass on the question, and having done so, by the denial of the motion for new trial, we accept its decision and judgment.”
Also specified as error is the trial court’s denial of defendant’s motion to implead the decedent’s employer Moun
tain States Construction Company and two of its supervisors.
In support of its motion defendant urged that the persons sought to be joined were guilty of “active” negligence in causing the accident while the negligence of the defendant was “passive.” In essence, defendant asserted that it claimed a right to indemnity from said persons based on the doctrine that where one tort feasor is primarily liable and the other is secondarily liable, though both are liable to the injured party, the one secondarily liable is entitled to full indemnity from the one primarily liable for any damages which the one secondarily liable has sustained.
Defendant’s motion thus came within the provisions of Rule 14(a) of the Federal Rules of Civil Procedure, 28 U.S.C. A., which enables a defendant to “serve a summons and complaint upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff’s claim against him. * * * ”
However, the language of the rule that “ * * * a defendant may move * * * for leave as a third-party plaintiff to serve a summons and complaint * * * [and] if the motion is granted * * * the person so served, hereinafter called the third-party defendant, shall make his defenses * * * ” clearly demonstrates that the decision whether to grant or deny leave is one committed to the discretion of the trial court; “and the timeliness of the motion is an urgent factor governing the exercise of such discretion.” General Electric Co. v. Irvin, 6 Cir., 1960, 274 F.2d 175, 178. See also, Casey v. Calmar S.S. Corp., D.C.Del.1956, 138 F. Supp. 751; General Taxicab Ass’n v. O’Shea, 1940, 71 App.D.C. 327, 109 F.2d 671.
Here the motion was untimely. Defendant made it only a few minutes before the trial commenced and offered no excuse for the delay.
Defendant further complains of the court’s refusal to instruct the jury on contributory negligence, voluntary assumption of risk and unavoidable accident, defenses which the defendant had tendered by its answer. Defendant was thus entitled to have these defenses sub.mitted to the jury by proper instructions if they found support in the evidence— that is, if there was “ * * * such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison Co. v. N. L. R. B., 1938, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126; see also, Howard v. Milwaukee & S. P. R. Co., 1879, 101 U.S. 837, 25 L.Ed. 1081; Citizens Utilities Co. v. Firemen’s Ins. Co., 1952, 73 Ariz. 299, 240 P.2d 869.
A careful review of the entire record fails to reveal evidence which directly
or by inference would prove Frazier was or should have been aware of the peril created by the defendant. Lacking such knowledge he was neither guilty of failing to exercise due care for his own safety or deliberately exposing himself to that dangerous condition.
Nor was there any proof justifying the giving of an instruction on unavoidable accident, a term defined by the Arizona Supreme Court as “such an occurrence as under all the circumstances could not have been foreseen, anticipated, or avoided in the exercise of ordinary care.” Town & Country Securities Co. v. Place, 1955, 79 Ariz. 122, 285 P.2d 165, 167. Here there was no evidence tending to establish the accident was caused by anything other than negligence. Thus it appeared that the wall of the canyon in the vicinity of the slide area was of rock and although this was eroded by weather and already weakened by cracks and seams, it had been further weakened and rendered more likely to give way by a series of explosive charges which the defendant had set nearby. In addition, there was uncontradicted evidence to the effect that at the time or shortly before the slide occurred defendant was operating a power shovel within a distance of 40 to 60 feet from the rim of the canyon; this machine weighed at least 60 tons and when working caused the surrounding area within a radius of 50 to 75 feet to tremble and shake violently. A slide such as the one that occurred was obviously a foreseeable consequence of this operation.
It is, of course, possible as defendant argues, that the accident had its origin in some independent cause unrelated to the defendant’s activities, but an inference must be based upon some concrete proof and not upon speculation or surmise. Gray v. Woods, 1958, 84 Ariz. 87, 324 P.2d 220.
The remaining assignment challenges the order of the District Court denying defendant’s motion for new trial on the ground that the verdict was “grossly excessive and monstrous” and rendered under the influence of passion and prejudice. The verdict, general in form, was for $200,000.
Nowhere in the record does it appear that plaintiff made any appeal to sympathy or prejudice and the verdict is not so large in amount as to immediately suggest that the finding of the jury was governed by some improper motive even if size alone were to afford a basis for such an inference. Earl W. Baker & Co. v. Lagaly, 10 Cir., 1944, 144 F.2d 344, 154 A.L.R. 1098; Ford Motor Co. v. Mahone, 4 Cir., 1953, 205 F.2d 267; but see, Wetherbee v. Elgin, Joliet
&
Eastern Ry. Co., 7 Cir., 1951, 191 F.2d 302; Arkansas Valley Land & Cattle Co. v. Mann, 1889, 130 U.S. 69, 9 S.Ct. 458, 32 L.Ed. 854, and our own decision in Southern Pac. Co. v. Guthrie, 9 Cir., 1949, 180 F.2d 295, where the question was expressly left open.
The review of this ruling of the District Court must therefore be confined to a determination whether the damages assessed were so indisputably excessive in the light of the evidence that that court clearly erred in not exercising its power to intercede to prevent a manifest in
justice; in short, we must decide whether the ruling constituted an abuse of discretion. Cobb v. Lepisto, 9 Cir., 1925, 6 F.2d 128; Siebrand v. Gossnell, 9 Cir., 1956, 234 F.2d 81; Union Pacific R. R. Co. v. Johnson, 9 Cir., 1957, 249 F.2d 674; see also, Southern Pac. Co. v. Guthrie, 9 Cir., 1951, 186 F.2d 926. In this field, “[tjhere is difficulty * * * in getting at the pecuniary loss with precision or accuracy * * * the result must be left to turn mainly upon the sound sense and deliberate judgment of the jury.” Illinois Cent. Railroad Company v. Barron, 1866, 5 Wall. 90, 72 U.S. 90, 106, 18 L.Ed. 591.
As already noted, Frazier was a married man and the father of four minor children; he was 41 years of age at the time of his death and his life expectancy was 28 years. He was in good health, was an industrious and reliable worker, was a kindly and considerate man devoted to his wife and children, and was employed as a foreman by the Mountain States Construction Company. His regular monthly salary was $550.00 but his actual earnings while at the damsite averaged $750.00 due to overtime pay and in each of the last two months before the fatal accident his earnings were upwards of $900.00.
The Arizona wrongful-death statute broadly provides that “fair and just” compensation may be awarded by the jury to the surviving parties who may be entitled to recover. Sec. 12-613, Ariz. Rev.Stat. Under this statute, the jury was permitted, as the Court instructed, to include in its verdict not only a “fair and just” allowance for the actual pecuniary loss sustained by the widow and each of the several children, but also a like allowance for such non-peeuniary elements of damage as loss of companionship, comfort, and guidance that Frazier would have probably provided to them.
The difficulty in determining whether the damages awarded to this plaintiff represented fair and just compensation or whether they were “grossly excessive” or “monstrous” is obvious.
This b'eeaüse such factors as the duration of Frazier’s life, his productivity and his income, were at best probabilities and the subjective matters of companionship, counsel and guidance, to name but a few of the other compensable items that the jury could’ rightly consider, were without a market at all.
“Here we are of the opinion that the verdict almost reaches the area of too much, but we believe it is one which it is our duty to let stand. A trial court has broader powers than we to order new trials in large verdict cases. It saw fit not to order a new trial here, which we hold to be within its discretion.” Union Pacific R. R. Co. v. Johnson, 9 Cir., 1957, 249 F.2d 674, 679.
The judgment is affirmed.