Central Copper Co. v. Klefisch

• Decision Date: 02 October 1928
• Docket Number: Civil 2713
• Citation: 270 P. 629,34 Ariz. 230
• Parties: CENTRAL COPPER COMPANY, a Corporation, Appellant, v. MARGARET B. KLEFISCH, Appellee
• Court: Arizona Supreme Court

270 P. 629

34 Ariz. 230

CENTRAL COPPER COMPANY, a Corporation, Appellant, v. MARGARET B. KLEFISCH, Appellee

Civil No. 2713

Supreme Court of Arizona

October 2, 1928

APPEAL from a judgment of the Superior Court of the County of Cochise. W. A. O'Connor, Judge. Judgment affirmed.

Mr. C O. Anderson, Mr. J. T. Kingsbury, and Messrs. Kingan &amp Darnell, for Appellant.

Messrs Knapp, Boyle & Pickett, for Appellee.

OPINION

LOCKWOOD, J.

Margaret B. Klefisch, hereinafter called plaintiff, brought suit against Central Copper Company, a corporation, hereinafter called defendant, for damages for personal injuries claimed to have been received by her as the result of an automobile accident for which defendant was legally responsible. The case was tried before a jury, which returned a verdict in favor of plaintiff in the sum of $25,000. After the usual motion for new trial was overruled, defendant brought the case before us for review.

There are four assignments of error, which we will consider as seems advisable. The first is that the evidence did not support the verdict and judgment. It is, of course, the well-established rule of law in this state that this court does not weigh the evidence on an assignment of this nature. If there is sufficient competent evidence in the record, which, if believed by the jury, would as a matter of law sustain the verdict, the assignment is not well taken. Durazo v. Ayers, 21 Ariz. 373, 188 P. 868; Leadville Min. Co. v. Hemphill, 17 Ariz. 146, 149 P. 384; Pacific Gas & E. Co. v. Almanzo, 22 Ariz. 431, 198 P. 457. In order that we may determine this assignment, it is necessary that we consider the complaint and the evidence in support thereof. The complaint alleges, after setting forth the formal requirements:

"That prior to and on or about January 19, 1924, plaintiff was in the employ of defendant at its offices and principal place of business aforesaid, and then and there defendant did keep and maintain in connection with the employment of plaintiff and other similar persons and employees an automobile or motor vehicle for the convenience and recreation of its employees, of whom this plaintiff was one, and did so keep and maintain the same and provide a chauffeur therefor, as a part of the employment and maintenance of such employees and this plaintiff, and did then and there cause said automobile or motor vehicle to be operated with such driver or chauffeur as aforesaid, for the use of such employees and this plaintiff, by reason of the isolation and remoteness of the community at and in the vicinity of Mascott and the offices and principal place of business of defendant as aforesaid. That it was the general use of such motor vehicle or automobile, and it was the duty and within the scope of the employment of the driver or chauffeur thereof to carry, transport, and drive such employees, of whom this plaintiff was one, from place to place, for convenience and recreation, and on or about said 19th day of January, 1924, the defendant did cause and authorize the use of said motor vehicle or automobile for certain travel, and in the ordinary scope and course of his employment did authorize the driver thereof to drive said automobile or motor vehicle upon certain travel, and did authorize certain persons and this plaintiff to then and there travel in said motor vehicle or automobile with the said driver as aforesaid. . . ."

It then sets up that the driver furnished by defendant was careless, incompetent and inexperienced, and that he operated the automobile in question in such a negligent manner that plaintiff was seriously injured thereby. The complaint concludes with the usual prayer for relief in the sum of $100,000. There was a second cause of action also set up in the complaint, but, as plaintiff elected to stand on her first cause, we need not consider the second.

There is no question but that the evidence is sufficient to show that plaintiff was very seriously injured as a result of the carelessness of the driver of the automobile in which she was riding at the time of the accident. The dispute is as to whether defendant is legally responsible for such negligence. The principal evidence upon which plaintiff relies to sustain the burden of proof which rests upon her on this point consists of her own testimony, that of the driver, and that of her sister. Plaintiff testified in substance that she had worked for defendant company from February, 1920, until January 5, 1924, in Pittsburgh, Pennsylvania. At that time defendant closed its Pittsburgh offices, and plaintiff came to Arizona to continue her employment here. Her compensation was to be $125 per month, with room, board and laundry in addition. While en route to Arizona, T. M. McCauley, president of defendant company, met plaintiff, in company with two other ladies employed by the company, on the train traveling between El Paso and Willcox. Plaintiff then testified as follows in regard to a conversation with McCauley, which she claims occurred at that time:

"A. Mr. McCauley had, of course, expressed his delight at my being able to come along. He further stated that they were going to do everything in their power to make the girls who had left their homes, to be practically isolated in the Central Camp, to do everything that they could to make them comfortable; the board would be free, the rooms and laundry, and other little incidentals. He stated that he had bought a new car for Mr. Tout, and the one he was using was to be maintained for the girls, that they might take the car out at any time, provided they secured permission from Mr. Stephenson, who was to be in charge, and also provided they didn't abuse the privilege; that the car was to be maintained for that purpose, as the girls would have no other way of getting down from the hill.

"The Court: What do you mean by 'from the hill'?

"A. Well, from the camp. It is twenty-some miles to Willcox, and the girls would have no way to get down; there is no trains, and they had no car other than what the company would supply to them. He mentioned the name of the car, and said that it was practically a new car; said that Mr. Tout hadn't driven it very many miles. He seemed quite delighted with his own idea of having this car for the girls."

On Saturday, the 18th of January, plaintiff and several other employees of defendant had a conversation, in which it was suggested that they have an auto party that evening. There were present at the conversation plaintiff, Mrs. Hummer, Miss Dunn, Mr. Kirby, Mr. Ramsey, and Mr. Morrison, all being employees of defendant. It was agreed among them that Kirby should see Stephenson, the person who McCauley had told plaintiff must grant permission for the use of the company car for pleasure trips. Later Kirby reported to plaintiff that Stephenson had granted the permission. The party, consisting of all the persons above named, except Ramsey, started about seven P.M., but, as the car they were using was somewhat crowded, plaintiff rode as far as Willcox with Mr. Tout, one of the officers of the company, and then got in the car occupied by the other members of the party, and driven by one Whiteside, who was employed as chauffeur by defendant. The accident occurred on the road between Willcox and Cochise. Plaintiff was taken to the hospital in Tucson, and while she was there was visited by Mr. McCauley, the president of the company, Mr. Stephenson, its vice-president, and Mr. Prout, its general manager. Plaintiff testified as follows, concerning statements made during the course of these visits:

"A. The first conversation that I can recall was with Mr McCauley, two weeks from the date of the accident, on or about two weeks from the date of the accident, in which he came in and expressed his deep sympathy that the accident had occurred at all; made mention of the fact that the driver should be discharged on account of his carelessness; that they should have known before the car left what kind of a driver they had. Mr. Stephenson should have found out from Mr. Tout that the car was in capable hands. He said that he regretted it a great deal; nothing would be spared in getting me well, regardless of the time it took; that I was entitled to it, in consideration that I would no longer have my health. He was most emphatic in the point that they should have known who had the car when it left the hill, and if Mr. Stephenson didn't know at that particular time he should have gone to someone who did know, who had the car, and who was taking it out, and how many were in the car. There was six in the car at the time. Mr. Tout stated his sympathy; said that the car was never permitted to go with six people in it. It should never have left the hill with six passengers in the car; that, had he known it, he would never have given his consent, because he knew from the beginning that the driver wasn't capable of taking the car; that he didn't know the road. Mr. Stephenson also said the same thing.

" Q. What did Mr. Stephenson say? A. He visited me in the hospital, and told me he felt deeply responsible, because he was in direct care and charge of those girls, for having taken us so far from home; that he felt deeply responsible for not having looked into the matter further than he did, to see who was taking out the car; that, regardless of Mr. McCauley's desire to discharge the chauffeur, he didn't feel he would do that, because he didn't feel the chauffeur was directly responsible; that they were responsible for the girls having given his consent to take it.

"Q. Did you have any further conversation with Mr. Prout? A. Mr Prout said that he should have known, he felt he should have known anyway, that the car was going from the hill; that he didn't know it at the time that...