Rehearing Denied March 27, 1962.
Lewis, Roca, Scoville, Beauchamp & Linton, Phoenix, for appellant.
Langerman & Begam, Phoenix, for appellee.
WINDES, Justice (retired).
Personal injury action by Raphael G. Rocha, hereinafter referred to as 'plaintiff', against Mike Lee Layton, hereinafter designated 'defendant'. Trial before a [90 Ariz. 370] jury. Verdict and judgment in favor of plaintiff for $25,000.
Defendant brings the matter here and submits for our consideration three assignments of error, (1) erroneous instruction on the subject of contributory negligence, (2) failure of the trial court to order a mistrial because of reference to insurance, and (3) instructing the jury that it may give more general damages than prayed for in the complaint.
In order to dispose of the questions presented, no useful purpose would be served by detailed description of the nature of the injuries or how or where the accident occurred except that it was on a public highway. Unquestionably, the evidence was such as to require an instruction on contributory negligence. The defendant requested an instruction to the effect that if the jury found there was contributory negligence its verdict must be for the defendant. This was refused and in lieu thereof the court instructed that if both parties were negligent and such negligence proximately contributed to bringing about the accident the law would leave them where it finds them 'and the plaintiff may not be entitled to recover and your verdict may be for the defendant.'
The debate concerning the correctness of this instruction revolves around the correct interpretation of A.R.S.Const. Art. 18, § 5, which reads:
'The defense of contributory negligence or of assumption of risk shall,
in all cases whatsoever, be a question of fact and shall, at all times, be left to the jury.'
Defendant's position is that it was prejudicial error to tell the jury that in the event it found plaintiff contributorily negligent he may not be entitled to recover and under such circumstances the verdict may be for the defendant and the jury should have been told that its verdict must be for the defendant.
During the past forty years this court has rendered many decisions interpreting the foregoing provision of the Constitution. From 1920 to the present time it has been consistently held that when there is evidence that the plaintiff was negligent, whether such negligence was a contributing cause of the injury as would deprive the plaintiff of the right to recovery was solely a question for the jury. Campbell v. English, 56 Ariz. 549, 110 P.2d 219; Zancanaro v. Hopper, 79 Ariz. 207, 286 P.2d 205. It is unnecessary to tabulate other Arizona cases to the same effect which are referred to in these decisions. Even though the undisputed evidence shows that plaintiff's negligence did as a fact contribute to the injury the jury may find in favor of the plaintiff and this court cannot direct a new trial. Dennis v. Stukey, 37 Ariz. 299, 294 P. 276, rehearing denied, 37 [90 Ariz. 371] Ariz. 510, 295 P. 971; Campbell v. English, supra. In other words, the court should advise the jury what, under the law, amounts to contributory negligence but it is deprived of the power to instruct the jury as to what its verdict must be. Defendant requested a must instruction. To this he was not entitled under these authorities.
We have approved instructions that if a jury finds plaintiff guilty of contributory negligence it should find for the defendant. Dennis v. Stukey, supra. The form given here was that it may so find. We think the preferable form is that in the event of contributory negligence the jury 'should' find for the defendant. This form more accurately advises the jury of its duty. Since under our decisions a verdict for the plaintiff is permissible irrespective of the strength of the evidence concerning plaintiff's negligence, and the jury under the law as announced may decide the issue for plaintiff even though the evidence clearly shows he was guilty of contributory negligence, we cannot say that the court committed reversible error by phrasing the instruction permissibly with the word 'may'.
The defendant claims a mistrial should have been granted because of language employed by counsel for the plaintiff while cross-examining the defendant. The inquiry of defendant was whether he had made out some report or stated to someone what the witness believed had happened. He said he had so stated to someone, then the following transpired:
'Q. I want you to answer this next question 'Yes' or 'No', without giving the details of what was in the report; I want you to tell us at this time, did you make out some kind of written roport of what you believed had happened? Just 'Yes' or 'No'.
'Q. You did not make out for anybody, make one out for anybody or anyone?
'A. I did not personally, no one.
'Q. You stated it to ...