NORTHERN ARIZONA SUPPLY CO. et al.
STINSON. NORTHERN ARIZONA SUPPLY CO. et al.
OLSON et al
Rehearing Denied January 16, 1952.
McQuatters & Stevenson, of Flagstaff, for appellants.
Cox & Cox, of Phoenix, for Alice Stinson.
Carl Tenney, of Phoenix, for Helen W. Olson et al.
De Concini, Justice. Stanford, Phelps and La Prade, JJ., concur. Udall, Chief Justice (dissenting).
De Concini, Justice.
[73 Ariz. 110] Helen W. Olson and Robert Olson, wife and husband, filed a complaint in the trial court asking for damages for personal injuries suffered by the wife as a result of a collision between a car driven by the wife and one belonging to the Northern Arizona
Supply Company driven by H. J. Fryberger, an employee. Helen Olson, as guardian ad litem, also asked for damages for personal injuries suffered by Virginia Cheves and Allen Cheves, her minor children who were in her car at the time of the accident. A passenger in the Olson car, Alice Stinson, also filed a complaint against the company and its employee praying for damages she incurred as a result of injuries occasioned by the accident.
The actions were consolidated for trial and tried to a jury. Liability of the defendants was admitted by stipulation filed with the court, and the only issues to be tried by the jury were the amount of damages that the several plaintiffs suffered by reason of the accident.
On the last afternoon of the trial, a short recess was taken and the record shows that the court was again in session at 4:00 p. m. During this recess one of the jurors sitting in this case engaged D. A. Foil, president of the defendant company, in a conversation. Foil testified under oath that the following is the import of that talk: "We were sitting together in chairs out there, discussing the possibility of him coming up to Show Low, maybe starting a business, and after we got through with that he passed the remark, what he would like to know, was both cars covered by insurance, and I told him I did not know. I [73 Ariz. 111] have forgotten the exact words that transpired then. Then I said, 'All companies cover their traveling cars with insurance,' and that is all that transpired."
Insofar as the record shows, the first time that the above was called to the trial court's attention was sometime after 4:35 p. m., since that is when the jury retired to reach a verdict. The jury returned with the verdicts at 5:40 p. m. Sometime during this hour and five minutes, counsel for appellants called the court's attention to the misconduct of the juror and Foil. The record shows the following:
The court: "It has been reported to the Court by the attorneys for the defendants that defendant D. A. Foil had a conversation with a juror named Edgar Bulson, during the trial of this case before it was submitted to the jury, * * *.
"It is further reported to the court that the jury has now arrived at a verdict. It is the intention of the Court to receive the verdict and then receive testimony from D. A. Foil and the juror, Edgar Bulson, under oath as to this conversation for the purpose of consideration of whether or not misconduct was had on the part of said parties and ...