Gilliland v. Rodriquez
| Decision Date | 22 March 1954 |
| Docket Number | No. 5671,5671 |
| Citation | 268 P.2d 334,77 Ariz. 163 |
| Parties | GILLILAND et al. v. RODRIQUEZ et ux. |
| Court | Arizona Supreme Court |
Wesley E. Polley, Bisbee, for appellants.
Daniel E. Moore, Bisbee, for appellees.
Sipriano Rodriquez and his wife purchased a house from a partnership consisting of Lowell Gilliland, Fred Davis and John Doe Davis, doing business as Inland Trading and Construction Company, under terms that required the trading company to deliver and place the house on Rodriquez' premises at a location staked out by him. An irrigation well with pump was located near the place so designated by Rodriquez. Over the well and pump was standing a pipe-pulling derrick held upright by three guy-wires. The trading company in order to set the house on the designated location decided it was necessary to release one of the guy-wires supporting the derrick. This being done, the same fell causing damage to the pump which necessitated its repair. Rodriquez and his wife, hereinafter designated plaintiffs, brought suit against the partnership and its members, hereinafter designated defendants, claiming they were negligent and asked damages for the repair of the pump and for loss of an onion and carrot crop because of inability to pump irrigation water. Plaintiffs having given defendants a promissory note and chattel mortgage in the sum of $487.05 which was past due at the time, defendants counterclaimed for the principal plus interest and ten percent attorney fees. The matter was tried before the court sitting without a jury, and the court made findings of fact and conclusions of law and awarded plaintiffs on their complaint the following:
"a. Damage of pump $ 197.49
b. Damage to carrot crop 1000.00
c. Damage to onion crop 1240.00
d. Damage on contract of
purchase flooring 65.00
---------
$ 2502.49 "
The items of $197.49 and $65 are not in dispute and will not be further referred to. The court further gave defendants judgment on their counterclaim in the sum of $487.05 plus interest, offsetting one against the other, and thereby gave plaintiffs a net judgment of $1,947.33. Defendants appeal.
Plaintiffs' complaint charges defendants with negligence in the following language:
'* * * the defendants, and each of them, by the through their duly authorized employees and agents, so negligently and carelessly delivered said building, said negligent and careless delivery being contrary to the specific instructions which the plaintiff had given to the defendants concerning the delivery, as to severely damage plaintiff's pump * * *'
The court's findings on the question of negligence are as follows:
agent, Jack Gilliland, on the date on which the building was delivered to the plaintiffs in accordance with the contract made between plaintiffs and the defendants, made either no inspection of the pipe-pulling rig and guy wire supports for the same, at that time over a well belonging to plaintiffs; or if an inspection was made it was an inadequate inspection of said pipe-pulling rig and guy wire.
'5. That said agent, Jack Gilliland, while in the process of handling said building to defendants and carrying out the terms of said contract for the delivery of said building, loosened the tin buckle (meaning turn buckle) clamp for securing the main guy wire holding the pipe-pulling rig in an upright position, thereby causing the said pipe-pulling rig to fall on the plaintiffs' pump.'
The court also made what it designated as its conclusion of law No. 1 as follows:
Whether an act of negligence is the proximate cause of an injury is an ultimate fact. Therefore, this so-called conclusion of law, though designated as such, will be treated as a finding of fact in testing the validity of the judgment. Curtis v. Boquillas Land & Cattle Co., 9 Ariz. 62, 76 P. 612.
It will be observed that the negligence, if any, of which the defendants are found guilty is releasing the guy-wire without first making any or adequate inspection of the rig and supporting wire. There being no evidence that the plaintiffs gave the defendants any instructions in this regard, defendants contend the judgment cannot be sustained for the reason that the plaintiffs alleged a specific act of negligence (careless delivery contrary to specific instructions) and failing to prove such instructions, no recovery can be had. Plaintiffs countered with an involved argument concerning grammatical construction to demonstrate that the complaint properly interpreted alleges general negligence. It is unfortunate that counsel for plaintiffs could not frame his complaint in simple language and thereby avoid expense and time-consuming effort on the part of court and counsel. We think, however, whether the complaint charges specific or general negligence is unimportant on this particular record. Evidence was submitted by the plaintiffs and received without objection concerning the details of what caused the rig to fall and after plaintiffs closed their case, defendants submitted evidence concerning their theory of the cause of the accident. The issue of the negligent act which was found by the court was created by the evidence and tried without the defendants' objection. The first objection appears when defendants after the trial requested a conclusion of law to the effect that plaintiffs could not recover because the specific negligence was not proven. Our rules provide that if issues which are not raised by the complaint are tried by either the express or implied consent of the parties, they shall be treated as if pleaded. Rule 15(b), Rules of Civil Procedure, section 21-449 A.C.A.1939, and if requested, an amendment should be allowed to conform to the proof. Leigh v. Swartz, 74 Ariz. 108, 245 P.2d 262; Carl v. McDonald, 60 Ariz. 170, 133 P.2d 1013. If issues are tried without objection, it amounts to implied consent and if no request to amend is made, the case will be treated as though the amendments were made. Shapiro v. Yellow Cab Co., D.C., 79 F.Supp. 348; Underwriters Salvage Co. of New York v. Davis & Shaw Furniture Co., 10 Cir., 198 F.2d 450; Carroll v. Harrison, D.C., 49 F.Supp. 283. Defendants rely heavily on Drumm v. Simer, 68 Ariz. 319, 205 P.2d 592, but that case is not controlling. Therein there was no evidence to support the court's finding of negligence and there was nothing in the record to show that by common consent the case was tried on the theory used by the court for its...
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