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Bruno v. San Xavier Rock & Sand Co.

Supreme Court of Arizona

November 9, 1953

BRUNO et al.
v.
SAN XAVIER ROCK & SAND CO.

Page 309

[76 Ariz. 251] Udall & Udall, Tucson, for appellants.

Darnell, Robertson, Holesapple & Spaid, Tucson, for appellee.

STEVENS, Superior Court Judge.

The plaintiffs-appellants filed this action in Pima County for personal injuries resulting from the alleged negligence of the defendant for its failure properly to safeguard hazards which, it was claimed, it had created along a public highway. The cause was tried to a jury before the Hon. Robert S. Tullar. The jury returned its verdict in favor of the defendant.

During the course of the trial the defendant asked a series of questions of the plaintiff-husband on cross-examination and during the course of said cross-examination the plaintiff interposed an objection which was overruled. There was further cross-examination and some rebuttal questions were asked by the plaintiffs' attorney. In the argument to the jury, the defendant's attorney admittedly referred to the questions propounded on cross-examination. The plaintiffs urge that the court erred in its ruling on said objection and that the attorney for the defendant was guilty of conduct which prejudiced the rights of the plaintiffs, in fact, that such conduct was so prejudicial to the rights of [76 Ariz. 252] the plaintiffs that the trial court abused its discretion in failing to grant the plaintiffs' motion for new trial even in the absence of further objections and motions by the plaintiff. The plaintiff-husband was cross-examined as to his residence prior to coming to Tucson and as to whether or not he ever lived in Warren, Ohio. He stated that he had lived in New York City only and had not lived in Warren.

The following sequence then appears in the continuation of the cross-examination:

'Q. Were you ever known as Rado (phonetics)? A. Who?

'Q. Rado. A. I don't know what you are talking about, Sir.

'Q. Wasn't that your name at one time? A. R-a-d-o?

'Q. Rado. A. I am sorry, Sir, you are mistaken. You must have somebody else.

'Mr. Udall: Your Honor, I am going to object to testimony of this kind. There is no foundation of fact and it is the worst kind of insinuation and innuendo. I think it is highly improper, and I move that the question be stricken subject to the evidence being offered upon which such a question can be based.

Page 310

'The Court: Well, I will sustain the objection to any further questions along that line. I don't believe there is anything that has to be stricken--unless there is some showing of some kind that it is material.'

Some question is raised in the brief as to the meaning of the last phrase in the foregoing ruling. From a slight rearrangement of the court's words, it appears clear to us that the meaning is as follows: 'Well, I will sustain the objection to any further questions along that line unless there is some showing of some kind that it is material. I don't believe there is anything that has to be stricken.'

The cross-examination continued without further objections being made by the plaintiffs. The questions related to whether or not the plaintiff-husband had ever been in Fresno, California, which he denied, and related to previous automobile accidents in Tucson. The plaintiff-husband admitted that he and his wife had been in two such accidents in Tucson prior to the one in question.

On redirect-examination the following day the plaintiffs' attorney asked the plaintiff-husband, among other things, 'Have you ever been charged with a felony?' and, '(Have you) ever been known under any ...


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