Brooks v. Neer

• Decision Date: 11 July 1935
• Docket Number: Civil 3424
• Citation: 46 Ariz. 144,47 P.2d 452
• Parties: N. E. BROOKS and M. J. PILKINGTON, Appellants, v. HAZEL NEER, Appellee
• Court: Arizona Supreme Court

47 P.2d 452

46 Ariz. 144

N. E. BROOKS and M. J. PILKINGTON, Appellants, v. HAZEL NEER, Appellee

Civil No. 3424

Supreme Court of Arizona

July 11, 1935

APPEAL from a judgment of the Superior Court of the County of Coconino. Frank Harrison, Judge. Judgment affirmed.

Messrs Struckmeyer & Jennings, Mr. Henderson Stockton, Messrs Sloan, McKesson & Scott, and Mr. F. M. Gold, for Appellants.

Messrs Wilson, Wood & Compton, for Appellee.

OPINION

McALISTER, J.

As a result of injuries received in an automobile accident Hazel Neer brought an action for damages against N. E. Brooks and the owner of the car he was driving at the time it occurred, one M. J. Pilkington. She was successful in the trial court and the defendants have appealed from the judgment in her favor and from an order overruling their motion for a new trial.

The complaint alleges that the defendant, M. J. Pilkington, was engaged in the automobile and garage business in Flagstaff, Arizona, under the name of Pilkington Motor Company and that the defendant, N. E. Brooks, was in his employ as a mechanic in the garage. It avers in paragraph three that on the 12th day of June, 1929, M. J. Pilkington was the owner and in the possession of a certain automobile and that "on or about said date said defendant, M. J. Pilkington, ordered and directed his said employee, defendant N. E. Brooks, to take said automobile onto the highway and speed it up and test it out," and in paragraph four that pursuant to this order the "defendant N. E. Brooks drove said automobile out upon the highway for the purpose of speeding it up and testing it out as aforesaid." It appears from paragraph six that late in the afternoon of June 12, 1929, while the plaintiff was riding with one R. O. Raymond in his automobile on highway 66, at a point about one-tenth of a mile south and west of the city limits of Flagstaff, "the said automobile belonging to defendant M. J. Pilkington as aforesaid, while being driven by defendant N. E. Brooks, pursuant to said orders and directions of, and for the benefit of, defendant M. J. Pilkington and as a part of the duties of and in the course of the employment of defendant N. E. Brooks as aforesaid, was driven into, upon and against the automobile of said R. O. Raymond in which the plaintiff was riding, with such force as to wreck the automobile of said R. O. Raymond, and to cause plaintiff to be thrown with such force and violence against the windshield and front of said automobile of R. O. Raymond, as to inflict injuries in and upon the person and body of plaintiff as hereinafter set forth."

The complaint continues from this point by alleging more specifically the manner in which the accident occurred, the nature of the injuries and the extent of the damages suffered by the plaintiff, but in view of the questions raised by the appeal it is unnecessary to state these in any greater detail.

It appears from the testimony that the defendant, M. J. Pilkington, owned a Buick coupe, 1928 model, that was not working well, and that one D. L. McKinney, who was employed by him as a salesman and had been using this Buick in the performance of his duties, asked him on the afternoon of June 12th if he (McKinney) "couldn't get his car stepped up a little, so that it would have a little better pickup," and that Pilkington told him "to take it back to the shop and have somebody to fix it." McKinney took it back and the foreman, Ray Hook, assigned N. E. Brooks "to work it over," "to work with it," and "to tune the motor," which, according to Brooks, meant "adjusting and checking the ignition, timing, starting, distributor points and spark plugs, adjusting the valves, current and carburetor." When it was finished, which was practically quitting time that afternoon, both Pilkington and the foreman had gone for the day and Brooks, wanting to be sure that his work was all right, drove it out on the highway, McKinney the salesman, who had taken it to the shop for repairs, going with him at his request. This was the first time in the two months he had worked there that he had driven a car on the street or highway to test it. Neither Pilkington nor the foreman had given him directions to do this, though he had been told by no one in authority not to test it, nor had he in fact ever been so directed regarding any car, or generally. But he thought, in order to do a complete job, it was necessary after he had worked it over that it be tested and there was no one else in the shop to do it.

They drove out along highway 66, south and west of the city and as they were returning the plaintiff and Dr. R. O. Raymond, who were driving west and south on the same road in the latter's car, saw them coming at a rapid rate of speed several hundred feet away, their car swerving back and forth across the road, and to avoid an accident Dr. Raymond drove his car as near the right edge of the road as he could without going into a ditch and stopped, the point being about one-tenth of a mile outside the city limits of Flagstaff. But just as Brooks and McKinney reached him and the plaintiff, the left rear end of the Buick, as it swerved the last time, struck the left front of his car, and forced it straight back. The plaintiff, seemingly anticipating danger, had grasped the handle of the right door of the car and braced her feet against its footboard to protect herself, but the collision threw her forward and caused her head to crash through the windshield up to her ears. Immediately afterward she drew her head from the hole it had made in the glass, and within a short time stepped out of the car, walked around its front end and observed its condition but after looking the situation over for a few minutes became affected with a terrible nausea and at Dr. Raymond's suggestion got back into the car and was driven home. Before reaching there she complained of a bad feeling on the left side of her face, in the roof of her mouth and tongue, and of severe pains in her head, and within a short time suffered complete paralysis of her left arm and leg. She had been in constant pain following her injury up to the time of the trial, which was about three and one-half years after the accident, and, though she had then improved to the extent that she had limited use of her left arm and leg, her condition was permanent and such that she will never again be able to engage in a gainful occupation. At the time of the occurrence she was forty-one years of age, in good health, keen and alert mentally and earning $1,800 per year. Her loss in wages up to the time of the trial was approximately $6,000, and in medical and nurse hire, medicines and incidentals, $2,100. It is not necessary to state any more specifically the manner in which the accident occurred, because it is not seriously questioned that it was due solely to the negligence of the defendant Brooks, and though there is some claim that the plaintiff's condition is not the result of the injuries received in the accident there is no occasion to relate at this point the testimony bearing on that question.

Appellants have assigned a large number of errors but have discussed them under fewer propositions of law, the first of which is in this language:

"Before the owner of any automobile is liable for damages resulting from the collision of said automobile in the possession of another upon the theory of respondeat superior, it must appear that the person in the possession of said automobile was the agent of said owner and was acting within the scope of his authority at the time and place of the collision."

Their position is that the complaint was based upon a specific order by Pilkington directing appellant Brooks to take the automobile out on the highway to speed it up and test it out, that there was no evidence to support this allegation, and that appellee, having failed to establish it, attempted to rely on the general allegation that Brooks was acting within the scope of his employment at the time of the accident, and that on doing so she rested her case solely upon the presumption that ownership of an automobile in possession of an employee of the owner at the time of an accident raises a sufficient prima facie case to show liability on the part of the owner and take the case to the jury. This, they claim, may be done in those instances in which it does not appear that the driver of the car was at the time acting outside the scope of his employment but not otherwise, for the reason that the true rule is that ownership of a car in possession of an employee at the time of an accident simply raises a presumption of liability but this presumption is merely an arbitrary rule the plaintiff is permitted to use as a substitute for proof and is overthrown when the owner of the car shows that the driver, even though his agent, was not at the time acting within the scope of his employment. When this appears by uncontradicted testimony, they urge, the question of liability becomes one of law and leaves no issue of fact for the jury to decide. If the term "uncontradicted testimony," as used in this connection, be regarded in its proper light, that is, as uncontradicted not only by direct evidence but by anything intrinsic in the evidence itself or extrinsic in the circumstances of the case which might cast suspicion upon it, this is a correct statement of the rule in this as in other jurisdictions. Otero v. Soto, 34 Ariz. 87, 267 P. 947; Blue Bar Taxicab etc. Co. v. Hudspeth, 25 Ariz. 287, 216 P. 246; Baker v. Maseeh, 20 Ariz. 201, 179 P. 53; Tullis v. Blue, 216 Ala. 577, 114 So. 185.

The only testimony in the record bearing on the nature of the employment was given by the appellants themselves and their contention is that it was uncontradicted and, therefore,...