Beaty v. Jenkins
| Decision Date | 26 May 1966 |
| Docket Number | No. 1,CA-CIV,1 |
| Citation | 3 Ariz.App. 375,414 P.2d 763 |
| Parties | Sam BEATY and Cular Beaty, Appellants, v. Robert T. JENKINS, Georgia May Jenkins, Jim Nagel, George R. Nagel and Mabel J. Nagel, co-partners, dba Nagel Lumber and Timber Co., Appellees. * 286. |
| Court | Arizona Court of Appeals |
Amelia D. Lewis, Sun City, for appellants.
Cox & Hedberg, by John C. Hedberg, Phoenix, for appellees.
This is an appeal from a judgment rendered in favor of the defendant in an action brought to recover damages incurred by a property owner when a shed which had been located upon an adjoining property blew over in a high wind onto a house, shed and fence, located on the plaintiffs' property.
The complaint sounded in negligence and alleged that the defendants had not properly attached the shed in question to the ground. The shed was used for the storage of lumber upon the defendants' property which was located immediately to the east of the plaintiffs' property. The shed was approximately 80 feet long, 20 feet wide, and was open on the east side for the full 80 foot length thereof.
The case was tried to the court without a jury and there was no request for findings of fact and conclusions of law. The court rendered judgment for the defendants without indicating its reason for so doing. At the trial it was established that the shed in question had been moved from another location on the defendants' lumber-yard to a location close to the boundary of the plaintiffs' and defendants' adjoining lands, with the west wall of the shed being some 19 feet east of the plaintiffs' house. There was no witness who purported to have observed the damage when it occurred. A tenant in the plaintiffs' house testified that she returned to the house a little after 10 p.m. and found it '* * * covered over with lumber, tin, all kinds of pieces of lumber * * *.' On the evening in question there was a storm in the vicinity of the City of Winslow, Arizona, in which city the properties of the parties are located. The highest speed of the wind for any one minute period recorded on the day in question at the Winslow Municipal Airport by the United States Department of Commerce Weather Bureau was 46 miles per hour from an east-southeast direction. This was the second highest wind recorded for the calendar year in which this accident occurred and the only high wind recorded during that year coming from an easterly direction.
The plaintiffs established that the shed in question was moved without securing a building permit from the City of Winslow, as required by the building code of the city. This was the extent of the plaintiffs' opening case. After a motion for judgment in favor of the defendants had been denied at the close of the plaintiffs' case, the plaintiffs further established, in cross-examination of a defendants' witness, that because of the frost line in Winslow, good building practice would have required a footing of 16 inches in depth, while the footing built under the structure in question was only 12 inches in depth. Other than this testimony, there was no evidence that the defendants had violated any standard building practices or any ordinances or statutes in connection with the building in question. There was testimony that the shed was built in the normal manner of similar sheds, in accordance with good building practices, that it had been installed in its last location for three years without incident, and that it had been used in another location previously with similar installation for three years without accident. The wind on the evening in question had certain 'freakish' qualities, in that loosely stacked lumber around the shed was not disturbed, while a heavy roof of a truck shop four hundred yards away, together with the last row of cement blocks to which the roof was attached, were lifted and moved about two inches.
Though there are numerous assignments of error, this court believes the only real question presented on appeal is whether there is any credible evidence to support the judgment rendered. This case having been tried to the court without findings of fact having been requested or rendered, this court is constrained to view the evidence most favorably to the position of the defendants and to uphold the judgment of the trial court if it is possible to do so on any theory within the issues framed by the pleadings or pretrial order. Gabitzsch v. Cole, 95 Ariz. 15, 18, 386 P.2d 23,...
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Alaface v. National Inv. Co.
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Tri-State Truck & Equipment Co., Inc. v. Stauffer, TRI-STATE
...148. This rule is still the law and has been adhered to recently by both the Court of Appeals and the Supreme Court. (Beaty v. Jenkins, 3 Ariz.App. 375, 414 P.2d 763 (1966) and Brand v. J. H. Rose Trucking Company, supra). The rule has recently been summarized by the United States Court of ......
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Christy v. Baker
...148. This rule is still the law and has been adhered to recently by both the Court of Appeals and the Supreme Court. (Beaty v. Jenkins, 3 Ariz.App. 375, 414 P.2d 763 (1966) and Brand v. J. H. Rose Trucking Company, supra). The rule has recently been summarized by the United States Court of ......