Ellwood SANDERS and Lillian Sanders, his wife, and Buckeye Crop Dusting Service, Inc., an Arizona Corporation, Appellants,
O. J. BECKWITH and Estella Beckwith, his wife, Appellees.
[79 Ariz. 69] Wilson & Towner, Buckeye, for appellants.
Scoville & Linton, Phoenix, for appellees.
O. J. Beckwith and Estella Beckwith, his wife, plaintiffs-appellees herein, recovered a judgment against the Buckeye Crop Dusting Service, Inc., an Arizona Corporation, and Ellwood Sanders and Lillian Sanders, his wife, defendants-appellants, in the sum of $10,000 for damages alleged to have been caused to their dairy herd as a result of the alleged careless, reckless and negligent dusting of a cotton crop belonging to the Sanders with poisonous insecticide known as DDT and benzene hexachloride. The Beckwiths allege that said insecticide caused the dairy herd to become poisoned and sick, reduced the milk production of siad herd, causing some of said cows to die and materially depreciated the value of the remainder of the herd. Defendants have appealed from said judgment and from the order denying their motion for a new trial. The parties will hereinafter be referred to as plaintiffs and defendants as they appeared in the trial court.
Defendants have assigned as error:
1. Misconduct of certain of the jurors engaged in the trial of the case by reading an untrue, unfair and prejudicial newspaper account of certain testimony said to have been given by one of plaintiffs' expert witnesses, and that the trial court erred in refusing to grant defendants' motion for a mistrial as a result thereof;
2. The court erred in refusing to give defendants' requested instructions 1, 2 and 3 on contributory negligence although not plead, for the reason that contributory negligence[79 Ariz. 70] was shown by plaintiffs in their case in chief; and
3. The court erred in not granting defendants' motion for a new trial for the reason that there was insufficient evidence to support said verdict and the verdict was contrary to the evidence and the law.
We will consider the questions in the order presented. First, was the news item in question, 'Toxicologist Testifies-Crop Dusting Called Worse Than Smog', so prejudicial in character as to require the trial court to grant defendants' motion for a mistrial? The question is largely one of discretion for the trial court. Eichten v. Central Minnesota Cooperative Power Ass'n, 224 Minn. 180, 28 N.W.2d 862. Prejudice will not be presumed but must appear probable from the record. Webb v. Hardin, 53 Ariz. 310, 89 P.2d 30.
While it is true jurors should not be permitted to read newspaper items concerning the trial of a case in which they are serving as jurors, a mistrial, however, should not be granted for that reason unless the probability is apparent from the record that the jury was prejudiced thereby. Webb v. Hardin, supra. In view of the fact that the jurors who read the news item knew that the witness did not testify, as stated therein, they could not have been influenced by such article. They stated in effect to the trial judge upon inquiry that they were not prejudiced from having read it and would not consider it in arriving at a verdict. The remoteness, by comparison of California smog to DDT dusting in Arizona, we believe, renders the news item wholly innocuous. So far as we know, California smog is not injurious to dairy herds and certainly there is nothing in the evidence to that effect.
These circumstances together with the fact that the judge instructed the jury that they could not consider such article as evidence and to disregard it in their deliberations,
compel us to disagree with defendants that said news item influenced the verdict of the jury in any degree whatsoever. In any event the question was a matter of discretion with the trial court. It determined the publication was not of a prejudicial character and that the jury was not prejudiced thereby. We find no abuse of discretion in its decision.
The cases cited by appellants, from this jurisdiction, are based upon subject matters so widely divergent from the publication in the instant case that they are really not in point at all.
The next assignment is directed at the refusal of the trial court to give defendants' requested instructions 1, 2 and 3 on contributory negligence. The fact that contributory negligence was not plead constitutes no excuse for the failure of the trial court to instruct upon that issue if the plaintiffs' evidence in their case in chief [79 Ariz. 71] discloses such negligence on the part of plaintiffs. McIver v. Allen,33 Ariz. 28, 262 P. 5. But such is not the situation in the instant case. In fact there is no evidence in this case which can be classified as falling in the category of contributory negligence. As pointed out by appellees, contributory negligence must concur or cooperate with the negligence of the defendants to proximately cause the injury of which complaint is made. Salt River Valley Water Users' Ass'n v. Cornum,49 Ariz. 1, 63 P.2d 639; Nichols v. City of Phoenix,68 Ariz. 124, 202 P.2d 201. In the instant case the negligent acts of the defendants consisted in trespassing upon plaintiffs' premises by negligently and carelessly dusting the Sanders' cotton crop adjacent to plaintiffs' premises with poisonous insecticide so that it was carried over and ...