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Zevon v. Tennebaum

Supreme Court of Arizona

February 4, 1952

ZEVON
v.
TENNEBAUM

Affirmed.

Shimmel, Hill & Hill, of Phoenix, for appellant.

Abbott H. Goldenkoff and Herbert B. Finn, both of Phoenix, for appellee.

Stanford, Justice. Udall, C. J., and Phelps, Stanford, De Concini and La Prade, JJ., concur.

OPINION

Stanford, Justice.

[73 Ariz. 282] Rudolf Tennebaum, appellee, hereinafter styled plaintiff, brough this action in the superior court against William Zevon, d. b. a. Monarch Linoleum & Appliance Company, appellant, hereinafter called defendant. Plaintiff allegedly sustained personal injuries as a result of defendant's negligence and prayed for damages. The trial jury rendered verdict in favor of the defendant, whereupon the plaintiff made a motion for a new trial, which was granted. The defendant now appeals from the ruling granting plaintiff's motion.

On August 9, 1948, plaintiff went to defendant's store to purchase some asphalt tile. He told the salesman he wanted the five cent block and wanted it laid, whereupon the salesman quoted plaintiff an estimate of the cost. That evening a Mr. Carl Lundberg, a tile layer, was sent to plaintiff's

Page 549

house by defendant's salesman. Lundberg spent about a half an hour at plaintiff's [73 Ariz. 283] house taking measurements. The following morning Mr. Lundberg came again to plaintiff's house and started to work laying the tile. To facilitate his work he disconnected the gas appliances and then later on reconnected them. At about five o'clock in the afternoon and while Lundberg was kneeling down lighting a blowtorch, an explosion occurred in which plaintiff suffered injury. Testimony was introduced to the effect that the explosion was caused by an accumulation of liquefied petroleum gas on the floor. Plaintiff contends that Lundberg was negligent in disconnecting and reconnecting the gas appliances thereby allowing the gas to escape into the room. Lundberg is not a defendant in the case, plaintiff contending that he was the employee, servant or agent of the defendant and was acting within the scope of his authority. The defendant introduced testimony attempting to prove that Lundberg was an independent contractor and not an employee, agent or servant of the defendant.

Plaintiff's motion for new trial was based upon several grounds, one of which was: 6. That the verdict of the jury was not justified by the evidence and is contrary to law. The court granted the motion but did not state upon which of the grounds it was granted.

The defendant relies on eight assignments of error to support his contention that the court erred in its order setting aside the verdict of the jury and the judgment and granting plaintiff's motion for a new trial. For the purposes of this appeal we need only consider defendant's assignment of error which questions the sixth ground of plaintiff's motion for new trial, namely, that the verdict of the jury was not justified by the evidence and is contrary to law.

It is the rule in this jurisdiction that when there are several grounds set up in a motion for new trial and the motion is granted without the court indicating upon which grounds its action is based, if any of the reasons stated in the motion be legally sufficient, we must presume the court acted for such reasons. Huntsman v. First Nat. Bank, 29 Ariz. 574, 243 P. 598; Young Mines Co., Ltd., v. Citizens' State Bk., 37 Ariz. 521, 296 P. 247; Southern Arizona Freight Lines v. Jackson, 48 Ariz. 509, 63 P.2d 193. It is also the law that the granting of a new trial is to a very great extent discretionary with the trial court. This discretion, however, although broad, is a legal and not an arbitrary discretion, and must be exercised in a legal manner. Sharpensteen v. Sanguinetti, 33 Ariz. 110, 262 P. 609; Southern Pac. Co. v. Shults, 37 Ariz. 142, 290 P. 152; Southern Arizona Freight Lines v. Jackson, supra. It is necessary, therefore, for the appellant in a case like this to take up each ground set forth in the motion and show that no one of them justifies the action of the trial court. Southern Arizona Freight Lines v. Jackson, supra.

This court has set forth on numerous occasions that it will not undertake to [73 Ariz. 284] reverse a trial court where the evidence is conflicting. In Brownell v. Freedman,39 Ariz. 385, 6 P.2d 1115, 1116, the court said: "It must be remembered that a very different rule applies to the setting aside of a verdict by the trial court on the ground that it is contrary to the weight of the evidence and to the same action taken by this court. We have invariably held that this court will not disturb a verdict on the ground that it is contrary to the weight of the evidence. On the other hand, we have held with equal emphasis that it is not only the right of the trial court to set it aside under such circumstances, but that it is its duty, and we have even gone so far as to express our regret that trial courts did not more courageously and frequently exercise their prerogative in this respect. Dennis v. Stukey,37 Ariz. 299, 294 P. 276. The trial judge, so far as this duty is concerned, sits as a thirteenth juror, and he, as well as the jury, ...


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