Chapman v. Salazar, Civil 3139
| Decision Date | 16 May 1932 |
| Docket Number | Civil 3139 |
| Citation | 11 P.2d 613,40 Ariz. 215 |
| Parties | S. F. CHAPMAN and MRS. S. F. CHAPMAN (Sometimes Known as BESSIE CHAPMAN), His Wife, Appellants, v. CARLOTTA LOPEZ SALAZAR, Appellee |
| Court | Arizona Supreme Court |
APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Judgment affirmed.
Mr. C H. Young and Mr. T. E. Scarborough, for Appellants.
Mr Terrence A. Carson for Appellee.
This is an appeal by S. F. Chapman and Mrs. S. F. Chapman from a judgment against them in favor of Carlotta Lopez Salazar for damages for injuries received in an automobile accident.
It appears that the plaintiff was in a Ford car driven by Manuel Gomez on November 24, 1928, when a collision occurred between it and a car driven by defendant, S. F. Chapman, which resulted in serious injury to her. The substance of the testimony in her behalf is that she was going south on Sixteenth Street and when she reached McDowell road the driver came to a stop in obedience to the sign there. At the time a car was approaching from the east but it appeared to Gomez that it was a half mile away so he started across McDowell road and as he reached a point south of the center of the intersection the car from the east approached at a speed of forty or fifty miles an hour and attempted to pass through the intersection in front of him but instead of doing so hit his car on the left front, caused it to turn north and fall over on its side near the northwest corner of the intersection, and itself turned on its left side near the southwest corner pointing in the direction in which it was going. The occupants of the Ford car were thrown to the ground, plaintiff so violently that she was seriously injured. The testimony of defendant, S. F Chapman, was that he approached the intersection at a speed of twenty or twenty-five miles an hour, and as he was passing through it the Ford car hit his Studebaker in the right side, causing the collision. To avoid an accident, he testified, he swerved his car to the south but the Ford hit it anyway. The jury, by its verdict in favor of plaintiff, placed the blame for the accident on defendant and none of the assignments are based upon the contention that the evidence does not support this conclusion.
In discussing what they perhaps consider the first assignment appellants take up the sufficiency of the complaint to charge and of the evidence to prove negligence but they do not point out any action of the court respecting either as a basis for the discussion nor do they in fact make an assignment of any character involving the proposition. It is merely an argument without any assignment upon which to base it. We are unable to determine what the alleged error was; hence, we pass to the next assignment.
At the close of appellee's case the appellants moved for a directed verdict as to Mrs. S. F. Chapman upon the ground that no negligence was shown as to her, though it was not contended that she should not have been made a party to the action, and the refusal to grant this motion is assigned as error. The ruling was clearly correct, for while Mrs. Chapman was not present when the accident occured, the evidence shows that the car registered in her name was the community property of herself and husband and that at the time he was using it in furtherance of the community interest. In such a situation there is no question of the liability of both husband and wife. In Selaster et ux. v. Simmons, 39 Ariz. 432, 7 P.2d 258, the husband and wife were sued for damages resulting from an accident between their car, the wife driving alone, and that of the plaintiff, and the court said:
"Under such circumstances, we think the community, consisting of the husband and wife, was liable for the wife's tort, and that the judgment properly ran against both of them."
Even if ownership of the car had been in Mrs. Chapman alone nothing further than that defendant S. F. Chapman was driving it at the time of the accident was necessary to show prima facie that he was her agent and using it in her business. Lutfy v. Lockhart, 37 Ariz. 488, 295 P. 975.
Appellants complain of this instruction:
"If you believe from the evidence in this case that the defendant was operating his car at the time and place at an excessive rate of speed, a rate of speed in excess of thirty-five miles an hour, in approaching said intersection, to wit, forty to fifty miles an hour, then I charge you that he was guilty of negligence in so operating said car upon said highway."
It is contended that this instruction should have informed...
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