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Phoenix Baking Company v. Vaught

Supreme Court of Arizona

March 6, 1945

PHOENIX BAKING COMPANY, an Arizona Corporation; LESTER P. STEWART, Appellants,

APPEAL from a judgment of the Superior Court of the County of Pima. Evo DeConcini, Judge.

Judgment affirmed.

Messrs. Knapp, Boyle & Thompson, for Appellants.

Messrs. Krucker, Fowler & Dodd, for Appellee.

Morgan, J. Stanford, C. J., and LaPrade, J., concur.


Morgan, J.

Page 726

[62 Ariz. 223] The plaintiff brought this action to recover for personal injuries and damages to his automobile sustained in a collision with the corporate defendant's truck, being then operated by its employee, the individual defendant. Briefly the facts are as follows:

About two o'clock on the afternoon of October 3, 1940, plaintiff was driving his Chrysler coupe north on the six-lane paved highway known as South Sixth Avenue in Tucson, to the rear of defendant Phoenix Baking Company's delivery truck, also being driven north in the center northbound traffic lane by defendant Stewart. This highway is the main traffic artery to Tucson from the south. The traffic on the road was heavy. The truck driver slowed down between street intersections in order to turn across the street to the left, to reach the bakery plant entrance on the west side of the road. In the process of turning he stopped the truck to permit southbound cars to pass. The left front wheel was apparently at or just over the center [62 Ariz. 224] line of the road. The truck blocked the traffic lane in which both it and plaintiff's car were traveling. The speed of both vehicles was reasonable, approximately between twenty to twenty-five miles per hour. The plaintiff's car collided with the right rear end of the truck. He suffered personal injuries in and about head, chest and knee, and sustained substantial damage to his car.

The evidence pertaining to the responsibility for the collision was conflicting. The plaintiff's testimony and evidence was to the effect that the truck driver failed to signal for the turn and stopped abruptly. The defendants' evidence, on the other hand, indicated that the driver signaled for the turn, looked into his rear view mirrors, and came to a slow stop, and that at least one car pulled out to the right to pass the truck before the collision. The cause was tried before a jury which found in plaintiff's favor a verdict of $ 1400, and judgment was so entered. Defendants appear here as appellants, the plaintiff as appellee. They will be referred to respectively as defendants and plaintiff.

On this appeal no claim is made that the judgment is not supported by the evidence. The assignments of error pertain only to the admissibility of testimony and to the giving and refusing of instructions. The questions raised will be considered in the order of presentation by the defendants.

Defendants complain that the court erred in allowing plaintiff to testify over their objection to his estimated loss of bonuses or commissions for the months of October, November and December, 1940, the period for which he was incapacitated. There is no claim or showing that the verdict was influenced by this testimony. For aught that appears other elements of damage are sufficient to sustain the judgment. It is not urged that the verdict is excessive nor that without this testimony the judgment could not be sustained. [62 Ariz. 225] In view of this we might well pass this assignment under the rule of harmless error in the admission of evidence. Jacobson v. Laurel Canyon Min. Co., 27 Ariz. 546, 234 P. 823; Kirkland v. Spriggs, 19 Ariz. 425, 171 P. 992; Arizona Superior Min. Co. v. Anderson, 33 Ariz. 64, 262 P. 489; Southern Lumber Co. v. Green, 186 Ark. 209, 53 S.W.2d 229; Trumpfeller v. Crandall, 130 Me. 279, 155 A. 646; Maryland Cas. Co. v. Sweek, 28 Ariz. 258, 236 P. 720.

However, since the parties, and the plaintiff particularly, have argued the question at some length, we will consider the matter as properly for our determination. The plaintiff, a traveling salesman, in addition to a regular salary, was allowed a bonus or commission on his sales exceeding a certain quota. His regular salary was paid while he was incapacitated. Over objection of the defendants he was allowed to testify to estimated losses for bonus or commission which he fixed at approximately $ 200 per month. Plaintiff's testimony disclosed that he had been employed for several years as the territorial manager of a national livestock feed concern and that his average commissions in past years for the months mentioned were approximately $ 200 per month. He estimated his loss of commissions for the three months involved at $ 500. We can find no merit in defendant's contention that this testimony should have been excluded as a mere estimate or conjecture based upon conclusions concerning plaintiff's salesmanship and the state of ...

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