WESTERN TRUCK LINES, LTD., a Corporation, and BILL MOREY, Also Sometimes Known as and Called D. A. MOREY, Appellants,
VIVIAN BERRY, Appellee
APPEAL from a judgment of the Superior Court of the County of Maricopa. John P. Clark, Judge. Judgment reversed and cause remanded with instructions.
Mr. Henderson Stockton, Mr. Eli Gorodezky, Mr. S. N. Karam and Mr. J. W. Cherry, Jr., for Appellants.
Mr. Albert W. Gurtler and Messrs. Laney & Laney, for Appellee.
[53 Ariz. 217] LOCKWOOD, J.
Vivian Berry, hereinafter called plaintiff, brought suit against Western Truck Lines, Ltd., a corporation, hereinafter called defendant, and Bill Morey, also sometimes known as D. A. Morey, to recover damages for personal injuries which plaintiff alleged she had suffered as a result of the negligence of Morey. The case was tried to a jury which returned a verdict in favor of plaintiff in the sum of thirty-five hundred dollars, and this appeal was taken.
There are some thirty-one assignments of error, but we think we need consider only two. In order that these may be discussed properly, it is necessary that we make a brief statement of the situation as shown by the record. The complaint alleged, in substance, that on the 6th day of February, 1937, an automobile in which plaintiff was then riding collided with a motor truck owned by defendant and negligently driven by Morey; that as a result of such collision plaintiff was thrown out of the automobile and received certain personal injuries. These injuries were alleged to have been as follows:
(a) "Two of the plaintiff's ribs on her left side were fractured and broken; her right
knee was sprained, contused and injured; her right shin and leg were bruised, contused and injured; her left leg was deeply pierced and cut by some sharp object; her left knee and ankle were bruised, contused, sprained and injured; her chest and neck were scratched, bruised and injured; her chin was cut and injured; she was caused to suffer a severe nervous shock, and to be sick, sore, lame, and disordered from the time of said motor vehicle collision until the present time; and was caused to incur expenses for surgical attendance, X-rays, and hospitalization in the amount, up to the date of filing this amended complaint, of $250.00."
(b) "That at the time when the plaintiff was so knocked out of the automobile in which she was riding, she was in ill and delicate health, she having suffered [53 Ariz. 218] a miscarriage about nine days theretofore; and although before said collision she had been rapidly recovering from her said illness, her being so violently hurled from said automobile and onto the pavement further injured her female organs and nervous system, seriously aggravated the conditions from which she had theretofore been suffering, and greatly retarded and hindered her recovery therefrom."
(c) "That the plaintiff's said injuries, and especially those to her ribs, chest, left knee and female organs, are lasting in character, and for a long time in the future the plaintiff will continue to be sick, sore, lame, and disordered as a result thereof and to incur further expenses for medical and surgical attendance,"
and damages in the sum of ten thousand dollars were asked. When the matter came on for trial, the jury was duly impaneled and sworn to try the case, whereupon a recess was taken. Thereafter counsel for defendant stated:
"If the court please, I observed with the plaintiff in this case inside the railing, two of the plaintiff's children a few years of age. The bringing of these children in this case into the court room, talking and jabbering as children will, we charge as misconduct on the part of counsel and on the part of the plaintiff. We ask at this time that those youngsters be excluded throughout the trial."
After some discussion the court said: "Mrs. Berry, do you think it is possible for you to find someone to take care of the children?" to which her counsel replied: "We will find ...