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Callender v. Transpacific Hotel Corp.12/30/1993
witness testimony, including, "You may accept everything a witness says, or part of it, or none of it," and, with regard to expert testimony, "You may accept it or reject it, in whole or in part, and you should give it as much weight as you think it deserves." Callender does not allege that the instructions were erroneous, and we find that they accurately stated the law. See Pugh v. Cook, 153 Ariz. 246, 735 P.2d 856 (App. 1987) (witness credibility is a matter for the trier of fact). Moreover, assuming Callender's proposed instruction was a correct statement of law, it was not applicable here because the testimony of the "disinterested" witness, appellant's expert, was not "uncontradicted and unimpeached."
On the issue of whether Transpacific violated A.R.S. ยง 4-311 by serving alcohol to Callender when he was allegedly intoxicated, Callender's expert testified, based on certain assumed facts and Callender's blood test results at the hospital, that Callender would necessarily have displayed obvious signs of intoxication when he purchased the "bucket" of Mai Tais. Those assumed facts came from the depositions of Callender, Lantow, and Carvalho. However, Carvalho's testimony was impeached as to Callender's behavior, and at what point he first began displaying any sign of intoxication. Because the expert's opinion was predicated on assumptions whose factual basis was not "unimpeached," Callender was not entitled to his requested instruction.
For similar reasons we reject Callender's contention that the verdict was contrary to the weight of the evidence. In addition to the impeachment of Carvalho's testimony, Callender himself attributed his loud and obnoxious behavior after two beers to the surroundings, not the alcohol. Lantow's deposition, read to the jury, included testimony that Callender and the girls drank the first "bucket" quickly and Callender immediately returned to the bar for another. There was also testimony from rescue personnel that Callender did not appear intoxicated when they responded to the accident scene and spoke with him. We "will not weigh evidence to determine its preponderance on a disputed question of fact; our only concern is whether facts have been established which might reasonably support the trial court's judgment." Whittemore at 175, 713 P.2d at 1233 (emphasis in original). The jury was in the best position to evaluate the evidence, and sufficient evidence was presented from which it could properly find that Cal lender was not obviously intoxicated when he purchased the drink. We find no error.
The judgment in favor of Transpacific is affirmed.
PHILIP G. ESPINOSA, Presiding Judge
CONCURRING:
WILLIAM E. DRUKE, Chief Judge
JAMES D. HATHAWAY, Judge
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