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General Petroleum Corp. v. Barker

Supreme Court of Arizona

April 19, 1954

REED et al.

Page 730

Rehearing Denfied May 11, 1954.

Page 731

[77 Ariz. 239] Moore & Romley, Phoenix, for appellant, General Petroleum corp.

Joseph H. Morgan and Donald J. Morgan, Phoenix, for appellees Barker.

Carl W. Divelbiss, Phoenix, Attorney for appellees Reed and Employers' Fire Ins. Co.

UDALL, Justice.

This is an appeal by defendant General Petroleum Corporation from orders of the Superior Court of Yavapai County in two consolidated cases, vacating unanimous verdicts in defendant's favor, setting aside the resulting judgments, and granting new trials therein. The primary question involved, as set forth in its sole assignment of error, is whether the trial court abused its discretion in making such orders.

In an earlier appeal we decided certain phases of this litigation and remanded the case for a new trial. See Barker v. General Petroleum Corp., 72 Ariz. 187, 232 P.2d 390; supplemental opinion on rehearing, 72 Ariz. 238, 233 P.2d 449. The facts therein stated give the overall picture and the basis for the suits.

The two damage actions grew out of a fire occurring June 3, 1948, at Camp Verde, Arizona, which destroyed a service station and grocery store building owned by the Barkers, who had leased the grocery store portion thereof to the Reeds. Upon retrial the actions were consolidated by stipulation, and are here consolidated on appeal.

The Barker suit (No. 17399) sought damages in the sum of $17,000, plus loss of certain rents and profits. J. J. Reed, et ux., lessees of the grocery store, and their insurer, Employers' Fire Insurance Company, brought suit (No. 17771) for damages in the sum of $4,114.60, for destruction of a stock of merchandise and certain personal effects, and loss of profits.

In each case it was alleged that the fire causing the destruction was caused by the negligence of an agent or servant of defendant General Petroleum Corporation (one Robert Bland) while making a delivery of stove gas into a barrel located in a storage room of the service station. The answer in each case was in effect a general denial.

The Barker complaint named as defendants the General Petroleum Corporation and W. F. Simpson, the latter being the wholesaler in the area for the corporation's products, and who we declared in the previous appeal was legally an agent of the corporation. The Reed suit named these

Page 732

same defendants as well as the Barkers. During trial a motion for instructed verdict as to Simpson was granted and judgment entered thereon. In the Reed case the court granted a motion to dismiss as to Barkers. No appeal has been taken from these rulings, therefore, except for certain third-party proceedings by General Petroleum Corporation against Simpson, which by stipulation are reserved for later consideration, the battle wages between the respective plaintiffs and the defendant corporation. We shall hereafter refer to them as plaintiffs and defendant.

[77 Ariz. 240] The trial court did not specify the particular ground or grounds upon which the motions for new trial were granted, and we are therefore compelled to review all the grounds set forth in plaintiffs' motions to see if any one of them justified the action of the trial court. Insofar as the motions are predicated upon errors of law occurring at the trial, we apply this yardstick: are these errors so prejudicial that if the case were here on appeal from a judgment in favor of defendant, we would be required to reverse the case? See, Southern Arizona Freight Lines v. Jackson, 48 Ariz. 509, 63 P.2d 193; cf. City of Phoenix v. Harlan, 75 Ariz. 290, 255 P.2d 609.

1. Fire Insurance

The first ground in this category is that the court erred in admitting evidence that plaintiffs Barker carried fire insurance. This fact was first brought out by Barker who stated that a Mr. Bolt, a 'fire insurance adjuster', had helped him prepare a certain exhibit. No objection was made by counsel, and no motion was made to strike it or to admonish the jury to disregard it. Later, on cross-examination it was referred to again. Plaintiffs claim that even though the matter of fire insurance was inadmissible, inasmuch as it had come to the jury's attention Barkers were entitled to go into the subject and show the amount collected. There is no merit to this contention, because at the request of Barkers the trial court in its instructions specifically told the jury '* * * that any payment made to plaintiffs on account of insurance on the property destroyed may not be used to minimize the amount of damages sustained by them. So if you find the issues in favor of plaintiffs, you will award them damages for their loss, without any deduction for any sum they may have received on account of insurance.' Giving this beneficial instruction sufficiently protected their rights with regard to insurance coverage.

2. Limiting Scope of Recross-examination of Bland

Robert Bland was called as a defense witness, and after giving testimony on direct examination he was cross-examined at length by counsel for both plaintiffs. On redirect examination Bland was asked only about the color of the socks he wore on the day of the fire and whether he was smoking during the time he was filling the drum with stove gas. Counsel for plaintiffs Barker then undertook on recross-examination of Bland to delve into the contents of a written statement, identified by the witness as having been made by him after the fire and prior to trial. The statement was not offered in evidence and there is no showing the court was even informed of its contents. Counsel apparently wanted to show that statements appearing therein were contradictory to some testimony given on direct examination or cross-examination, and thus ...

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