DeGraff v. Smith

• Decision Date: 23 March 1945
• Docket Number: Civil 4663
• Parties: MOLLIE DeGRAFF, Appellant, v. VIRGIL SMITH and ELIZABETH SMITH, Appellees
• Court: Arizona Supreme Court

157 P.2d 342

62 Ariz. 261

MOLLIE DeGRAFF, Appellant, v. VIRGIL SMITH and ELIZABETH SMITH, Appellees

Civil No. 4663

Supreme Court of Arizona

March 23, 1945

APPEAL from a judgment of the Superior Court of the County of Maricopa. Howard C. Speakman, Judge.

Judgment reversed with instructions.

Messrs Struckmeyer & Struckmeyer, for Appellant.

Messrs Lyle & Perry, of Gallup, New Mexico, and Messrs. Hill, Robert & Hill, of Phoenix, Arizona, for Appellees.

Stanford C. J. LaPrade, J., concurs. Morgan, J. (dissenting).

OPINION

Stanford, C. J.

Virgil Smith and Elizabeth Smith, husband and wife, the appellees herein, were the plaintiffs in the trial court. We shall, in this case, term them the plaintiffs, and Mollie DeGraff the defendant.

The defendant, Mollie DeGraff, a resident of Colorado, was engaged in the business of buying, selling, warehousing and wholesaling fresh fruits, vegetables and other commodities, and transporting them over the highways of Arizona to the State of Colorado. Defendant carried on such transportation by means of a Ford truck. Lloyd P. Mundee and Ralph Bird operated said truck for defendant.

On the night of August 13, 1941, at about 2:30 A. M., Mundee and Bird were going east on highway 66 in the northern part of Arizona, and while between Ashfork and Williams stopped the truck on the right hand side of the highway because of a broken axle. Before the two servants of the defendant could place flares upon the highway indicating that the truck had stopped, the car of plaintiffs, going in the same direction, ran into and against the unlighted truck injuring the plaintiffs, and plaintiffs brought their action in the superior court for damages.

In addition to the defendant, Mollie DeGraff, plaintiffs made a party to the action Lloyd P. Mundee, who was driving the truck at the time of the accident.

After the evidence was submitted, and before arguments of counsel and instructions of the court were given, and before submission of the case to the jury, plaintiffs moved for a dismissal of the action against Mundee. The transcript of evidence in that respect shows the following:

"Mr. Perry: At this time the plaintiffs dismiss their complaint as to the defendant Lloyd Mundee.

"The Court: Do I understand that the plaintiffs at this time move to dismiss as to Lloyd Mundee, each of the three causes of action as to the defendant Mundee?

"Mr. Perry: That is correct.

"Mr. Struckmeyer: That, of course, with prejudice?

"Mr. Perry: I assume if we lose we couldn't sue a joint tort feasor if we lose against one. If we win we wouldn't sue him, so it would be with prejudice."

The complaint was brought on three causes of action, each alleging different damages. The verdict of the jury was on the second cause of action, which alleged injuries to plaintiff, Elizabeth Smith, and was for the sum of $ 2,000.

Before entry of judgment on the verdict rendered, defendant DeGraff filed a motion for judgment notwithstanding the verdict on the grounds that she could be held only on the theory of respondeat superior and the dismissal with prejudice of Lloyd Mundee, her servant, operated as a bar to the verdict and is res judicata as to the negligence of the defendant DeGraff. Also a motion for new trial was filed by defendant DeGraff, and each of the motions having been overruled, the defendant DeGraff has appealed and assigns as error (1) that the dismissal with prejudice of the defendant Mundee bars the recovery against his principal, the defendant herein; (2) that the plaintiffs could not recover because the evidence and the whole thereof shows that the plaintiffs' negligence was the proximate cause of the accident or collision.

It is contended by the plaintiffs as follows:

"The voluntary dismissal by the plaintiffs as to the defendant Mundee and the judgment rendered in his favor thereon had no affect on appellees' right to obtain judgment against the appellant Mollie DeGraff.

"The question of contributory negligence is one of law and fact to be determined by the jury and the court is bound by the jury's determination."

The theory of plaintiffs is that DeGraff and Mundee were joint tortfeasors and they had the right to continue their action against DeGraff after dismissing against Mundee.

The minute entry of the clerk of the court in respect to the court's action in reference to plaintiffs' motion to dismiss as to Mundee is as follows:

"Plaintiffs move to dismiss each of the three causes of action as to defendant, Mundee with prejudice.

"It is ordered for judgment in favor of defendant, Lloyd P. Mundee, relieving him of all liability in this case."

Defendant DeGraff contends that joint tortfeasors are those who jointly, or by some concerted action, commit the wrong, and that active participation in the alleged negligence is necessary to constitute a person a joint tort-feasor. It is the defendant's contention that this is a case of master and servant and that the master's responsibility does not make him a joint tort-feasor, but that his liability is solely derivative. With this proposition we agree.

In the case of White v. Arizona Eastern R. Co., 26 Ariz. 590, 229 P. 101, 102, this court said:

". . . There must exist some community of purpose or wrong or fault to give rise to joint liability. This we think is the settled rule. To constitute a joint tort the wrong must be joint. A tort may be committed by one person or by several but the tort is always single. The general rule on this point we think is very well stated in Dickson v. Yates, 194 Iowa 910, 917, 188 N.W. 948, loc. cit. 951 , wherein it is said:

"'Only when two or more persons act in concert of action to commit a common tort are they joint tortfeasors. . . .'"

The essential part of the complaint for the purpose of determining the issues involved reads as follows:

". . .; that at or about the hour of 2:30 A. M. on said day, at a point approximately thirteen (13) miles west of Williams, Arizona, on U. S. Highway 66, the defendant Lloyd P. Mundee, acting within the scope of his employment, negligently, carelessly and in violation of the law applicable thereto, stopped the said Ford truck on said highway and permitted it to stand on said highway without showing any lights whatsoever or setting out any flares or otherwise complying with the law, and that as a direct and proximate result of the aforesaid carelessness and negligence, the car in which the plaintiffs were then and there riding and which was being driven in an easterly direction on said highway by the plaintiff Virgil Smith, who was then and there using due care in the premises, ran into and against the unlighted truck belonging to the defendant Mollie E. DeGraff."

Throughout the pleadings and the briefs of the plaintiffs it is claimed that the action is based on the liability of joint tortfeasors and that Mundee and DeGraff were such. The defendant is contending that no other interpretation by the pleadings can be shown except that DeGraff and Mundee were master and servant.

The cases submitted by the plaintiffs mainly have reference to joint tortfeasors. Among the master and servant cases cited is the case of Inter State Motor Freight System v. Henry, 111 Ind.App. 179, 38 N.E.2d 909, 912, from which we quote:

"It is well established by a number of decisions in this state that where an action proceeds upon the theory that the relation of master and servant exists between the defendants, and that the master is liable solely because of the negligent acts of the servant, that a verdict in favor of the servant and holding the master guilty of negligence relieves not only the servant but the master from liability. (Citing cases.) These holdings are in accordance with the weight of authority in other states. Where a master and servant are joined as parties defendant in an action for injuries inflicted by the servant, a verdict which exonerates the servant from liability for injuries caused solely by the alleged negligence of the servant requires also the exoneration of the master. (Citing cases.)

"But a verdict in favor of one servant does not bar a recovery against the master, where the evidence shows that the negligence of another servant who is not joined as a party, or who if joined as a party is not exonerated by the verdict, has caused the injury. Nor does the verdict in favor of a joined servant bar a recovery against the master where the latter has himself been guilty of acts on which, independently of the acts of the servant, liability may be predicated. (Citing cases.)"

We can eliminate one feature of that case and that is wherein it says: "Nor does the verdict in favor of a joined servant bar a recovery against the master where the latter has himself been guilty of acts on which independently of the acts of the servant, liability may be predicated." There is no evidence in the case that the defendant DeGraff was guilty of an act of negligence on which, independently of the acts of the servant, liability may be predicated. The other matter left for us to determine is where the evidence shows the negligence of another servant, who is not joined as a party, or who, if joined as a party, is not exonerated by a verdict or judgment has caused the injury. There was another servant, Ralph Bird, who was asleep at the time the axle broke. In the emergency he was awakened by Mundee and immediately got out and did everything he could to aid. He scotched the wheels of the truck as quickly as possible. Then while Mundee went forward on the road with fuses to set out to warn advancing motorists, Bird got another fuse, and we quote the following from his evidence:

"A. So I got out and got another fuse and started around to the back end of the truck and I...