J. B. PETERS, Appellant,
PIMA MERCANTILE COMPANY, INC., a Corporation, and SIDNEY McNEIL, Appellees
APPEAL from a judgment of the Superior Court of the County of Pima. Fred W. Fickett, Judge. Judgment affirmed.
Mr. Otto E. Myrland, for Appellant.
Mr. S. L. Pattee and Messrs. Kingan, Darnell & Nave, for Appellees.
[42 Ariz. 455] McALISTER, J. J. B.
Peters brought this action against the Pima Mercantile Company, a corporation, and Sidney McNeil to recover damages received by him in an automobile accident. He won a judgment against Sidney McNeil but was unsuccessful as against the Pima Mercantile Company. The jury returned a verdict in its favor and the plaintiff has appealed from the judgment rendered thereon.
The record discloses that at the close of the testimony the Pima Mercantile Company moved for an instructed verdict and that the court granted this motion upon the ground that the evidence disclosed no liability whatever on its part for the injuries sustained by the plaintiff. The only assignment is that the court erred in directing this verdict, and to show that the trial court committed error in taking this action appellant has had transcribed and brought here the testimony of two of the ten witnesses who testified at the trial, namely, J. J. McNeil, the president of the company, and Sidney McNeil, one of the defendants. With only this portion of the evidence before us appellee suggests that this court cannot determine whether the trial court's ruling granting the motion was correct or not. Undoubtedly this court should have before it all the testimony the trial court had bearing on the question of appellee's liability before it sets aside or reverses a ruling that it was not liable, for there is no other way by which that action can be fairly and properly adjudged. [42 Ariz. 456] "Where error is alleged in the action of the court in taking, or refusing to take, the case from the jury," according to the text in 4 C.J. 199 "all the evidence should be included," and this rule is sustained by numerous decisions where the question has arisen.
In Texas & Pacific Ry. Co. v. Cox, 145 U.S. 593, 12 S.Ct. 905, 36 L.Ed. 829, the United States Supreme Court said:
"The bill of exceptions does not purport to contain all the evidence, and it would be improper to hold that the court should have directed a verdict for defendants for want of that which may have existed."
The question was passed on by this court in Richardson v. Powers, 11 Ariz. 31, 89 P. 542. That was an action for malicious prosecution and in the abstract was included the testimony of the defendant only. In refusing to set aside an order of the trial court directing a verdict upon the ground that the evidence was insufficient to sustain the plaintiff's cause of action, the court said:
"Upon the record as it is before us, and without the testimony in the case, we could not, in any event, assume that the testimony as a whole did not warrant the action of the trial court in directing a verdict for the defendant. . . . Without the testimony taken at the trial before us, we cannot say that the action of the court was erroneous."
Of the numerous authorities to the same effect the following are cited: Kitzman v. Kitzman, 115 Iowa 227, 88 N.W. 341; Atterberry v. Portland & W.V. Ry. Co., 18 Or. 85, 22 P. 527; Collins v. Breen, 75 Wis. 606, 44 N.W. 769; Smith v. Highland Mary Mining, Milling & Power Co., 82 Colo. 288, 259 P. 1025; Cadoma Sheep Co. v. Doughaards, 41 Wyo. 502, 287 P. 436.
Appellant contends, however, that if appellee was not satisfied with his statement of facts it became [42 Ariz. 457] its duty under section 3869, Revised Code of 1928, to "set forth such amendments as" it deemed "necessary to make it correct and sufficient," and that since it did not do this it cannot now be heard to say that his is not sufficient. This section does provide that when a party desires to procure a review of certain rulings only he may cause his statement of facts to contain merely these rulings and so much of the testimony and proceedings as is necessary to review them and that when such statement is prepared, "the opposite party in his statement shall either agree that the same is correct and sufficient or shall set forth such amendments as he may deem necessary to make it correct and sufficient and the trial judge shall either certify thereto that the same is correct and sufficient or shall amend, certify and file it, together with the statement of the opposite party."
The opposing party in this case neither agreed that the statement was correct and sufficient, nor ...