Williams v. Thude4/3/1997
g., Kelch v. Courson, 103 Ariz. 576, 447 P.2d 550 (1968); Holtz v. Holder, 101 Ariz. 247, 418 P.2d 584 (1966). They argue, however, that Hall v. A.N.R. Freight System, Inc. has effectively abrogated this rule, at least with respect to the merely procedural guarantee of article 18, section 5. We decline to reach this issue because it appears to us that the objection made by plaintiffs' counsel, though certainly less than artful, was sufficient to have alerted the parties and the trial court of problems with the instruction.
We adopt the court of appeals' recommended instruction in the present case and disapprove of Bauer v. Crotty to the extent that it may be inconsistent with these pronouncements. Review having been improvidently granted as to issue 2 of the cross-petition, we decline to address the trial court's instructions, or lack thereof, regarding "lighting and safety requirements of vehicles with projecting loads." The matter is remanded to the trial court for further proceedings.
THOMAS A. ZLAKET, Chief Justice
Concurring
STANLEY G. FELDMAN, Justice
JAMES MOELLER, Justice
ROBERT J. CORCORAN, Justice (Retired)
MARTONE, Justice, Dissenting in part.
There are two very distinct issues in this case. The first is whether the instruction given below was erroneous. The second is what is the appropriate rule of law? Because the instruction given below was erroneous, I join in the judgment of the court. Because I do not subscribe to the court's understanding of the correct rule of law, I cannot join its opinion.
1. The Erroneous Instruction
The defendant's argument that a willful or wanton plaintiff has no right to recover finds support in Southern P. Transp. Co. v. Lueck, 111 Ariz. 560, 574, 535 P.2d 599, 613 (1975):
We hold, that a plaintiff's wanton contributory negligence may be balanced against the wanton negligence of a defendant so as to bar a recovery in Arizona.
But we noted that an instruction on this principle cannot "suggest that the jury must not return a verdict in favor of the plaintiff," because that would be "contrary to our express holdings in Heimke v. Munoz, 106 Ariz. 26, 470 P.2d 107 (1970) and Layton v. Rocha, 90 Ariz. 369, 368 P.2d 444 (1962)." Id.
Bauer v. Crotty, 167 Ariz. 159, 167, 805 P.2d 392, 400 (App. 1991), acknowledged this and concluded that one could not instruct a jury "that it 'should' or 'must' return a verdict against such a plaintiff" because it would "violate Ariz. Const. art. 18, § 5." This, I believe, is an appropriate Conclusion in light of our holding in Manhattan-Dickman Constr. Co. v. Shawler, 113 Ariz. 549, 555, 558 P.2d 894, 900 (1976), that because the word "should" could be construed as obligatory, the word "may" was preferable unless "the jury was advised that the word 'should' was not used in the obligatory or mandatory sense."
I believe, therefore, that the court of appeals was correct in concluding that the instruction here was erroneous because it told the jury that the plaintiff had no right to any damages and that its "verdict should be for the defendant," 1997 Ariz. LEXIS 38 at *3, and was unaccompanied by any instruction that it was not obligatory. It is for this reason that I join the court in affirming the judgment granting the motion for new trial. But for the reasons that follow, I believe the court's proposed resolution is wrong because it applies article 18, § 5 beyond its own terms.
2. The Bauer/Thude Conflict
The instruction below was erroneous under both Bauer and Thude. But Bauer and Thude had different understandings of the reac
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