Porter v. Empire Fire and Marine Insurance Co.

Annotate this Case

106 Ariz. 345 (1970)

476 P.2d 155

James T. PORTER, Appellant, v. The EMPIRE FIRE AND MARINE INSURANCE COMPANY, a Nebraska corporation, Appellee.

No. 10051-PR.

Supreme Court of Arizona, In Banc.

November 5, 1970.

Lesher & Scruggs, by Robert O. Lesher, Tucson, for appellee.

William T. Healy, Tucson, for appellant.

American Trial Lawyers Association, Arizona Chapter, by William B. Revis, of Langerman, Begam & Lewis, Phoenix, for amicus curiae.

McFARLAND, Justice.

In its motion for rehearing the appellee states that there is some confusion as to future proceedings under our mandate to the Superior Court. In the opinion reversing the Superior Court order and judgment, 106 Ariz. 274, 475 P.2d 258 we ordered "the matter remanded for further proceedings not inconsistent with this decision".

However, appellee points out that we stated at the beginning of the opinion that "It is alleged, and not denied for the purposes of appeal, that Porter sustained injuries *346 in the amount of $10,000", but in disposing of the proposition of law as to liability we later stated "We accordingly hold Porter is entitled to judgment for $7,500, the balance of his admitted damages in the sum of $10,000".

We can understand that these statements may have caused confusion. As to the latter we were merely referring to damages as admitted for the purposes of appeal and should have so stated. The actual amount of damages will have to be fixed in further proceedings as set forth in the mandate.

With the above modification the motion for rehearing is denied.

LOCKWOOD, C.J., STRUCKMEYER, V.C.J., and UDALL and HAYS, JJ., concur.