Appellee's motion for rehearing has raised a matter not presented in the briefs
The appellee has cited and quoted to this court general statements in the law which might seem to support the contention made that proper appellate procedure at this posture of the case would be to send this case back for a new trial. Among the statements so quoted is:
An examination of authorities from various jurisdictions indicates to this court that the situation in other jurisdictions is less than clear
The second decision held that the above order was intended to cause judgment to be entered for the defendant as to the $800.00 claim for attorney's fees because the error resulting in this judgment was one "* * * committed after trial or verdict * * *." (84 Ariz. 360, 362, 328 P.2d 614, 615 (1958).) The error established by the Supreme Court in Crouch v. Pixler, supra, was that:
In holding that no new trial was required under these circumstances, our Supreme Court said:
An examination of the record before us discloses that there were no rulings by the trial court that impeded the plaintiff in this action from putting on her case fully. The issues tried to the court were those of negligence, breach of warranty, and failure to warn of inherent risks. One of the issues raised throughout the trial by the defendant's counsel was the lack of proof of proximate cause. In a motion for directed verdict made both at the close of the plaintiff's case and at the close of all of the evidence, one of the chief reasons for asking that the trial court direct a verdict for the defendant was that there was no showing of reliance by the plaintiff on any failure to warn. Considerable argument was made to the effect that the plaintiff's consent to a subsequent similar operation by Dr. Burr conclusively showed lack of causation. Among the language expressing this basic contention was the statement of defense counsel in making motion
This is not a case reversed for insufficiency of the evidence but rather for complete lack of evidence tending to show that any failure to warn was the proximate cause of plaintiff's injury. This is a case of "no evidence"
When a complete lack of proof relates to an essential element of either a claim for relief or a defense, and there has been no interference by wrongful rulings of the trial court, preventing such party from fully developing his case, we hold that on reversal judgment should be entered against such claim or defense.
Litigation is harmful to all parties. To protract it is only to increase its damage. It may very well be in the instant case that if this case were sent back for a new trial the plaintiff could make a better showing. This certainly would have been true in Crouch v. Truman, supra. But it is also a reasonable supposition that the defendant here could make a better showing on a new try at presenting the defense. Each time a case were to be retried one might normally expect the protagonists to do better at presenting the facts and the law, but this would not mean that each determination would be closer to absolute justice nor that the best interests of the litigants would be served in the process. We are committed in this country to the adversary system for the settling of civil disputes and in our opinion this particular litigation has been fairly won by the defendant.
The previous decision of this court should be modified to show that this case is reversed with instructions to enter judgment for the defendant.
KRUCKER, C.J., and HATHAWAY, J., concur.