VOLNEY M. FIKE and SABINA IRENE FIKE, His Wife, and VOLNEY M. FIKE, Jr., Appellants,
MARY GRANT, Appellee
APPEAL from a judgment of the Superior Court of the County of Maricopa. Joseph S. Jenckes, Judge. Reversed and remanded.
Mr. Herman Lewkowitz and Mr. C. H. Young, for Appellants.
Mr. Frank H. Lyman and Mr. Samuel C. Jefferies, for Appellee.
[39 Ariz. 550] McALISTER, C. J.
Mary Grant brought an action against Volney M. Fike, Sabina Irene Fike and Volney M. Fike, Jr., for damages for injuries suffered by her as a result of an automobile accident which occurred on October 17, 1929, in Phoenix, Arizona. She recovered judgment in the sum of $5,000 and from it the defendants appeal.
The car was being driven at the time by Volney M. Fike, Jr., a young man seventeen years of age and a son of his co-defendants, Volney M. Fike and Sabina Irene Fike. It was alleged and the jury evidently found that the injuries suffered by the plaintiff resulted from the unlawful and excessive rate of speed at which the car was running. The record discloses that the car was the property of Irene Fike, a sister of Volney M. Fike, Jr., but was used part of the time by the parents as lessees in connection with their business at Third and Jefferson Streets, and that on this particular evening, somewhere near 8:30 or 9 o'clock, it was driven away from this place by Volney M. Fike, Jr., but whether on a mission for his parents or for himself the evidence is conflicting. However, in view of the instructions of the court that if he were directed by either of his parents to go on an errand for them, they would be liable, but in case he used the car on business of his own without permission from them, they would not be, the verdict of the jury is conclusive on that proposition and the appeal must be disposed of upon the theory that he was at the time on a mission for his parents.
[39 Ariz. 551] There are several assignments but none of them attack the finding that the injuries were caused by the negligence of the driver or that he was at the time on an errand for his parents. The principal contention is that the fact that liability insurance was carried on the car was brought to the attention of the jury by the testimony of one of appellee's witnesses and through no fault of appellants and that this constituted error so prejudicial that it requires a reversal of the case. It appears from the testimony of Helen Grant, daughter of appellee, that on the morning following the accident she went alone to appellants' place of business and had a talk with them and that at this point she was asked by her attorney whether she talked about the accident, whereupon the following took place:
"A. Would you like to know what I asked them?
"Q. You may tell all that was said. A. I went for the purpose of asking Mr. and Mrs. Fike --
"Q. Just a minute. Speak a little slower and talk to the jury. A. I went to the Fike's place of business to inquire about the insurance on their car and Mr. and Mrs. Fike --
"Q. Was that all you asked them? A. No."
Nothing more was said by her concerning insurance but she was questioned further relative to other phases of the case and it appears from this testimony that two days after the first visit she called again at appellants' place of business and that while there she and Mrs. Fike had a conversation relative to the car and the purpose for which it was being driven at the time of the accident. At the close of her testimony appellants' counsel moved, in the absence of the jury, that due to the fact that the question of insurance on the car had been brought into the case a mistrial be declared but this was denied, though the testimony of the ...