Opinion
No. 1 CA-CIV 867.
May 20, 1970. Review Denied June 16, 1970.
Action by passengers for injuries sustained in intersectional collision. The Superior Court of Maricopa County, Cause No. 152766, Morris Rozar, J., entered judgment on verdict for defendant, and passengers appealed. The Court of Appeals, 11 Ariz. App. 547, 466 P.2d 766, reversed and remanded with directions. On motion for rehearing, the Court of Appeals, Jacobson, J., held that counsel's reading to jury certain statute which the court did not cover in its instructions, while not the best practice, was not improper, where counsel's intent to read the particular statute to jury was brought to the court's attention prior to final argument and by implication the court sanctioned this conduct.
Motion denied.
Charles M. Brewer, Phoenix, and Burch, Cracchiolo, Levie Guyer, by Daniel Cracchiolo, Phoenix, for appellants.
McKesson, Renaud, Cook, Miller Cordova, by J. Gordon, Cook, Phoenix, for appellees.
A portion of our opinion in the above matter, filed on March 23, 1970, 11 Ariz. App. 547, 466 P.2d 766, dealt with the propriety of counsel reading to the jury certain statutes which the court did not cover in its instructions. While we agree that as a general proposition such conduct is improper, we were in error to conclude that this principle was applicable in this case. A close reading of the transcript indicates that defense counsel's intent to read the particular statute to the jury was brought to the court's attention prior to final argument. While the transcript is not clear as to the court's ruling on this point, by implication the court sanctioned this conduct. We therefore hold, contrary to our previous opinion, that counsel's conduct while not the best practice under the circumstances here, was not improper.
However, as indicated in our previous opinion the court's decision in this case was not based upon this alleged improper conduct, but upon the applicability of the doctrine of superseding cause to the facts in this case. We have carefully considered the arguments made in appellees' motion for rehearing on this point and find no reason to change our previous opinion.
Therefore the Motion for Rehearing is denied.
EUBANK, P.J., and HAIRE, J., concur.