Robert J. COLFER, Jr., Appellant,
Robert BALLANTYNE et al., Appellees.
Kenneth S. Scoville and Robert J. Spillman, Phoenix, for appellant.
Moore & Romley, Jarril F. Kaplan, Robert H. Green, Phoenix, for appellees.
HENRY S. STEVENS, Superior Court Judge.
This personal injury action was tried to a jury. The jury returned a verdict for the plaintiff in the sum of $7,000. The defendant[89 Ariz. 409] moved for a new trial, which was granted. Rule 59(m) of the Rules of Civil Procedure, 16 A.R.S. is as follows:
'No order granting a new trial shall be made and entered unless the order specifies with particularity the ground or grounds on which the new trial is granted.'
The trial court's order on the motion is as follows:
'Having been under advisement, the court now rules: It is ordered that the defendants' motion for new trial be, and the same is hereby granted on the grounds of irregularity in the proceedings, misconduct of counsel for the plaintiff and error in the charge to the jury.'
We find that the assignments of error and the matters presented for consideration by this court fall within the scope of the order. The basic question presented is whether or not the trial court abused its discretion in granting the new trial.
The primary issue is whether or not the conduct of plaintiff's counsel was such as to be prejudicial to the defendants and thereby deprive the defendants from securing a fair trial. The atmosphere or climate of the trial is peculiarly within the knowledge and experience of the trial court. Nevertheless, there must be a basis for the exercise of discretion.
The plaintiff took the deposition of the defendant Ballantyne, he being the principal actor upon whose acts the plaintiff bases his charge of negligence and his right to recover. Mr. Ballantyne at the time of his deposition had moved from Phoenix to California and he came to Phoenix for his deposition. The plaintiff wisely served him with a subpoena and tendered witness fees.
The case was called for trial at the beginning of the morning session of the court. Prior to the voir dire of the jury, and out of the presence of the jury, defendants' counsel advised the court of Mr. Ballantyne's absence and orally moved for a continuance. This was strongly resisted by the plaintiff who urged that the motion did not lie in oral form nor for the reasons stated and, further, that there were good reasons to believe that Mr. Ballantyne's absence was wilful and contemptuous. The plaintiff further urged that the plaintiff himself had come from Michigan for the trial. The transcript reflects that these proceedings were far from amicable.
The trial court recessed until the afternoon to permit the filing of a written motion and to enable the defendants' attorney to seek further information as to the reason for Mr. Ballantyne's absence. Later, the request for a continuance was abandoned. That afternoon the impaneling of the jury commenced. Plaintiff's counsel asked leave and was granted permission to ask questions on voir dire. Some are urged as [89 Ariz. 410] prejudicial to the defendants and as part of the just cause for the granting of the new trial.
Plaintiff's counsel asked: 'Now, have any of you ever been a litigant in such a suit?' Juror Hunter, who was later excused by the court by reason of a temporary business hardship, replied: 'I wasn't sued, but my insurance company paid the doctors' bills.'
'Plaintiff's attorney; Someone slipped on your premises?
'Juror: In my home.
'Plaintiff's attorney: I take it your insurance took care of it and left no ...