Reversed and remanded.
Croaff & Croaff and Charlie W. Clark, all of Phoenix, for appellant.
Wilson & Wilson, of Phoenix, for appellees.
Stanford, Justice. Udall, C. J., and Phelps and La Prade, JJ., concurring. De Concini, Justice (dissenting).
This is an action to recover on a contract for the drilling of a well and foreclosure of a mechanic's lien to secure payment therefor. The original complaint and a counterclaim were filed in 1946 and judgment was thereafter rendered for defendants (Smiths, who are appellees herein) and against plaintiff (Stewart, who is appellant [73 Ariz. 71] herein) on both complaint and counterclaim. The defendants, Smiths, were awarded the sum of $ 2400 as reimbursement for overpayment on the contract. Appeal was then taken to this court, decision reported in Stewart v. Smith, 68 Ariz. 91, 200 P.2d 353, 358. From the final paragraph of the opinion, we quote: "The judgment is reversed and the cause remanded to the trial court with directions (a) to dismiss the tort action set forth in the counterclaim based upon the alleged negligence of Stewart, and (b) to grant a new trial upon the contract issue raised by Stewart's complaint and Smith's answer and the issue of overpayment presented by the counterclaim." This decision established the law of the case.
The second trial was then held and judgment rendered for defendants on the complaint and for plaintiff on the counterclaim, each party to bear his own costs. From that judgment and a denial of motion for a new trial, plaintiff now appeals.
The facts of the case as well as the issues on retrial are rather fully stated in our former opinion. The main issue on retrial concerned the type of formation encountered in the drilling of the well, that being determinative of the rate to be charged, defendants contending that payments made to plaintiff had resulted in an overpayment and plaintiff contending that the nature of the formation through which he drilled had resulted in a balance owed him by defendants.
Plaintiff makes seven assignments of error, the first three of which assign error to court's permitting counsel for defendants to ask questions, and witnesses to give answers touching on matters foreign to the issues, namely: plaintiff's negligence in his performance under the contract, which was specifically eliminated from the trial by the previous appeal, all of which allegedly unduly prejudiced the plaintiff. Supporting these assignments, plaintiff has cited no less than twenty-five
instances where counsel for defendants pursued a line of questioning, while examining various witnesses, which allegedly touched upon and resulted in answers indicating that plaintiff was guilty of negligent misconduct while drilling the well. Matters were touched upon dealing with the alleged discovery of water in the well, prior to its abandonment by plaintiff, carrying with it an innuendo of failure on the part of plaintiff to make the same available for use by defendants. This was entirely irrelevant and beyond the issues of the case. At various times during the course of the trial, certain matters were emphasized regarding the "sticking" of plaintiff's tools in the well, implying therefrom that plaintiff had destroyed the well, to defendants' detriment.
Although the specific rulings by the trial court on the objections interposed were on the whole correct, a careful scrutiny of the entire proceedings reveals an atmosphere, threaded with off-color remarks, directed [73 Ariz. 72] at plaintiff's negligent misconduct in drilling, and strongly prejudicial to his interests. From 20 R.C.L., New Trial, section 20, we quote: "* * * If, in the examination of witnesses, irrelevant evidence of collateral matters is brought before the jury for the purpose of or tending to prejudice the jury against the opposite party, a new trial will be granted, * * *. So, it will constitute ground for a new trial if counsel, in disregard of the court's ruling that a certain line of evidence is inadmissible, persists in attempting to get such evidence before the jury, to the prejudice of the unsuccessful party. * * *" See also Britt v. State,25 Ariz. 419, 218 P. 981; Silver King of Arizona Mining Co. v. Kendall,23 Ariz. 39, 201 P. 102. And from 5 C.J.S., Appeal and Error, § 1713(b), we quote: "* * * the case must be reversed * * * for misconduct in asking questions conveying improper information to the jury and tending to render the trial unfair, persistently injecting irrelevant evidence into the case, or asking questions in defiance of ...