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J. & B. Motors v. Margolis

Supreme Court of Arizona

May 25, 1953

J. & B. MOTORS, Inc.

Page 589

Page 590

[75 Ariz. 394] Tannenbaum & Tannenbaum, of Tucson, for appellant.

Udall & Udall and Frank J. Barry, Jr., of Tucson, for appellees.

WINDES, Justice.

Defendant employed plaintiff as a used-car salesman at a salary to be computed on a five per cent commission on all sales accomplished by him with a guaranty of $200 per month. There is no dispute concerning this agreement. Thereafter, some arrangement was made whereby plaintiff was to receive a $50 bonus on the sale of heavy-duty trucks. Defendant contends this was limited to the month of July, whereas plaintiff claims there was no such limitation. Sometime after plaintiff's employment began another arrangement was made, whereby plaintiff assumed the duties of looking after the used-car lot and was to receive additional compensation of one per cent overwrite on sales therefrom. It is not clear whether this overwrite was to be on the gross sale prices or only on the trade-in differences. Plaintiff voluntarily left the employment of defendant and in this suit claims certain commissions, bonuses on heavy-duty truck sales, and an additional amount under the overwrite arrangement. Trial resulted in verdict for plaintiffs in the sum of $725; defendant appeals and presents seven assignments of error.

First, it is claimed that the court erred in not dismissing for cause juror Carmen O. Lee, when she was challenged for cause by the defendants upon the ground that she showed prejudice. When the jurors were being examined for the purpose of selection for trial, juror Lee, in response to [75 Ariz. 395] questions by court and counsel, stated she was well acquainted with one of counsel for the plaintiffs; that by reason thereof it would not be embarrassing or difficult for her to render a verdict against the plaintiffs if she felt the evidence so warranted; that she felt conscientiously and honestly that she could render a judgment fairly and impartially despite her acquaintance with counsel; that she might be prejudiced, did not think so, but thought she would try to be fair.

The existence of a state of mind in the juror evincing bias to either party is a ground for challenge, Section 37-122, A.C.A.1939; and when a juror is challenged, whether the same shall be denied or allowed is largely within the discretion of the trial court, and his discretion thereon will not be disturbed in the absence of an abuse thereof. Riley v. State, 50 Ariz. 442, 73 P.2d 96; State v. Brady, 66 Ariz. 365, 189 P.2d 198. Clearly, from the record in this case, the court did not abuse its discretion and there was no error in denying the challenge.

The complaint prayed for judgment in the sum of $3,153.92. The defendants offered in evidence a letter written prior to the filing of suit by the plaintiff to Jack Erny, president of the defendant company, wherein it was stated as follows:

'I am repeating my request for payment of the $1150 you owe me. Unless I receive this amount by Saturday, April 29th, 1950, I shall enlist legal aid.'

Defendants offered the letter in evidence. It was excluded upon objection of the plaintiffs and this is claimed as error. Plaintiffs contend the letter is inadmissible because it is in the nature of compromise, but there is no basis whatever for this position, there being nothing to indicate it was written in an effort to compromise. We hold, therefore, that the court should have allowed the latter in evidence as an admission of the maximum amount of plaintiffs' claim and because it was out of harmony with the amount claimed in the complaint. We do not think, however, that its exclusion was prejudicial error. The jury's verdict was for a lesser amount than contended for in the exhibit. Had

Page 591

the verdict been greater, we think the exclusion would have been reversible error. There is authority that if a verdict is such that it would have been warranted had the excluded evidence been admitted, and in all probability its admission would not have changed the result, there is no reversible error. Waldrip v. Grisham, 112 Ark. 57, 164 S.W. 1133. It appears that the admission of the document would not have had the effect of causing a verdict for the defendants or a verdict in a lesser amount for the plaintiffs and was therefore harmless error.

Plaintiffs called one of the defendants, Jack Erny, and Geraldine M. Erny, secretary-treasurer of the defendant company, [75 Ariz. 396] for examination under the provisions of Rule 43(b), section 21-922, A.C.A.1939. After plaintiff completed his examination of these witnesses, defendants' counsel propounded to them certain leading questions, and the court sustained objections thereto. This ruling is assigned as error.

With a few exceptions not material here, the general rule is that one cannot lead his own witness with suggestive questions. It is equally true that generally a cross-examiner may submit such questions to the witness. The fundamental reason for both rules is that if the witness is friendly or biased in favor of the examiner, there is not only no necessity for suggesting but such might even elicit incorrect answers, whereas if the witness is unfriendly or hostile to the cause of the examiner, he is unlikely to accept or be influenced by the examiner's suggestions, and leading questions are permissible in order to test the accuracy of or discredit the direct testimony. Volume III, Wigmore on Evidence, Sections 773 and 915. Mr. Wigmore states in the first-mentioned section that when the reason for the rule ceases, so does the rule, and that should it develop that an opponent's witness proves to be biased in favor of the cross-examiner, he may then be forbidden to propound leading questions even to the opponent's witness. If thses rules be applicable, clearly under the circumstances here defendants' counsel would not be allowed to lead his own client or an officer thereof, unless it should appear that such witness exhibited hostility to the cause of the defendant, in which event the court in its discretion could allow leading questions. This is still the law unless Rule 43(b), Section 21-922, supra, effects a change in this respect. This rule reads as follows:

'Any witness may be cross-examined on any matter material to the case. A party may interrogate any unwilling or hostile witness by leading questions. A party may call an adverse party or an officer, director, or managing agent of a public or private corporation or of a partnership or association which is an adverse party, and interrogate him by leading questions and contradict and impeach him in all respects as if he had been called by the adverse party, and the witness thus called may be contradicted and impeached by or on behalf of the adverse party also, and may be cross-examined by the adverse party.' (Emphasis supplied.)

It will be observed that the rule expressly provides that a party (and this means either party) may interrogate any unwilling or hostile witness by leading questions. It also provides that a party may call an adverse party or officer of a corporation and interrogate him by leading questions and either side may contradict and impeach the party or witness thus called. Lastly, the rule provides that the witness may be cross-examined by the adverse party. It is clear that under this rule, defendant's[75 Ariz. 397] counsel is expressly given the right to cross-examine the witnesses called by the plaintiffs, but it does not say that in such cross-examination leading questions may be asked. It does expressly provide two circumstances under which a witness may be led, both requiring hostility or presumed hostility to the cause of the examiner. We think this rule is in harmony with the rules concerning the putting of leading questions in existence prior to its adoption, and, ...

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