Waid v. Bergschneider

381 P.2d 568, 94 Ariz. 21, 1963 Ariz. LEXIS 264

• Court: Arizona Supreme Court
• Decided: May 16, 1963
• Docket: 7075
• Status: Published

Opinions

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. Pie 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.

1 . Por a collection of cases on this point see 4 A.L.R.2d 761. See also the concurring opinion in Big Ledge Copper Co. v. Dedrick, 21 Ariz. 129, 185 P. 825 (1919), where Justice Ross said that the admission of a statement, objectionable in itself, would not constitute reversible error when that statement was provoked by opposing counsel.