Heimke v. Munoz

• Decision Date: 27 May 1970
• Docket Number: No. 9968--PR,9968--PR
• Citation: 470 P.2d 107,106 Ariz. 26
• Parties: Howard HEIMKE and Juanita Heimke, his wife, Appellants, v. Robert Lopez MUNOZ and Gilbert M. Munoz, parent of Robert Lopez Munoz, Appellees.
• Court: Arizona Supreme Court

Page 107

470 P.2d 107

106 Ariz. 26

Howard HEIMKE and Juanita Heimke, his wife, Appellants, v. Robert Lopez MUNOZ and Gilbert M. Munoz, parent of Robert Lopez Munoz, Appellees.

No. 9968--PR.

Supreme Court of Arizona, In Banc.

May 27, 1970.

Skousen, McLaws & Skousen, by Richard E. Skousen, Mesa, for appellants.

Fennemore, Craig, von Ammon, McClennen & Udall, by Kenneth L. Tucker, Phoenix, for appellees.

STRUCKMEYER, Vice Chief Justice.

Howard Heimke and his wife, Juanita, brought this action as plaintiffs against Robert Lopez Munoz to recover damages for personal injuries sustained in an automobile accident. From a jury's verdict for the defendant and the judgment entered thereon, plaintiffs have appealed. The Court of Appeals, while expressing reservations, nonetheless followed the majority opinion in Layton v. Rocha, 90 Ariz. 369, 368 P.2d 444. We accepted review. Opinion of the Court of Appeals, 11 Ariz.App. 126, 462 P.2d 819, vacated and judgment of the Superior Court reversed.

At the time of the accident the plaintiff, Howard Heimke, was driving a motor vehicle in which his wife was a passenger. Their vehicle was struck from the rear by an automobile driven by defendant Munoz. Both Heimkes were injured; Juanita more severely than her husband. The Superior Court instructed the jury on the law of imputed negligence in this manner:

'Inasmuch as the plaintiffs in this action are husband and wife, if you should find that either one was negligent and that such negligence contributed as a proximate cause of the accident, Then, under our law, Neither one may recover, although one may have been wholly innocent of any negligent conduct.' (Emphasis supplied.)

We agree with defendant that the instruction as an impersonal legal proposition is a correct statement of the law. In Arizona, damages for personal injuries to either spouse are community property. That a guilty party may not profit from his wrong, the negligence of one spouse is imputed to the other. Tinker v. Hobbs, 80 Ariz. 166, 294 P.2d 659; Pacific Construction Co. v. Cochran, 29 Ariz. 554, 243 P. 405; and see 21 A.L.R.3d 469, Anoo. Contributory Negligence of Spouse or Child as Bar to Recovery of Collateral Damages Suffered by Other Spouse or Parent.

However, the instruction plainly violates the Constitution of Arizona, Article 18, § 5 A.R.S. This nearly anomalous state constitutional provision, similar only to that found in Oklahoma, takes from the court all control of the defense of contributory negligence. It reads:

'The defense of contributory negligence or of assumption of risk shall, in all cases whatsoever, be a question of fact and shall, at all times, be left to the jury.'

Article 18, § 5 does not mean that the defense of contributory negligence is a question of fact Which shall be left to the jury. While some words are frequently used as different parts of speech, 'and' is seldom used other than as a conjunction to connect words or groups of words of equal rank. It is never used as a relative pronoun, e.g., who, whom, which or that, to introduce a subordinate adjective clause. Article 18, § 5 is a simple sentence with a compound predicate, the word 'defense' being the subject noun of a double predicate. As such, grammatically it means that the defense of contributory negligence shall always be a question of fact, And the defense of contributory negligence shall at all times be left to the jury. This Court by a long line of decisions under a variety of circumstances has held that the purpose of Article 18, § 5 was to modify the common law by making the jury rather than the court the sole arbiter of the existence or non-existence of contributory negligence. Alabam Freight Lines v. Phoenix Bakery, Inc., 64 Ariz. 101, 166 P.2d 816, and cases cited. This includes not alone the right to determine the facts, but to apply or not, as the jury sees fit, the law of contributory negligence as a defense.

Seven years after statehood, this Court cited to and quoted from Chicago, R.I. & P.R. Co. v. Cole, 251 U.S. 54, 40 S.Ct. 68, 64 L.Ed. 133 (1919). There, Justice Holmes reviewed a judgment of the Supreme Court of Oklahoma construing the identical Oklahoma constitutional section. The idea that the railroad had a vested right to the defense of contributory negligence as it existed under the common law was disposed of perfunctorily by pointing to the decisions in the Arizona Employers' Liability Cases, 250 U.S. 400, 39 S.Ct. 553, 63 L.Ed. 1058, 6 A.L.R. 1537, holding that the defense of assumption of risk may be taken away altogether. To the argument that legislation cannot change a standard of conduct which is a matter of law by its nature into a matter of fact, Holmes replied that the material element in the Oklahoma constitutional enactment '* * * is not that it called contributory negligence fact but that it left it wholly to the jury.' The Federal constitutionality of the Oklahoma enactment was approved with these statements which this Court quoted one year later in Inspiration Consolidated Copper Co. v. Conwell, 21 Ariz. 480, 190 P. 88 (1920):

'There is nothing, however, in the Constitution of the United States or its Amendments that requires a State to maintain the line with which we are familiar between the functions of the jury and those of the Court. It may do away with the jury altogether, (citation), modify its constitution, (citation), the requirements of a verdict, (citation), or the procedure before it. (Citations) As it may confer legislative and judicial powers upon a commission not known to the common law, (citation), it may confer larger powers upon a jury than those that generally prevail. Provisions making the jury judges of the law as well as of the facts in proceedings for libel are common to England and some of the States, and the controversy with regard to their powers in matters of law more generally * * * (citations), shows that the notion is not a novelty.' 251 U.S. at 56, 40 S.Ct. at 69.

Palpably, Article 18, § 5 confers larger powers upon the jury than generally prevail.

In Inspiration Consolidated Copper Co. v. Conwell, supra, the uncontradicted evidence established that Conwell had actual and positive knowledge of the dangerous defects out of which the accident arose. The court, two members of which had been members of the Constitutional Convention, ¹ rejected the argument that the trial court should have granted the defendant a new trial on the ground that the verdict was contrary to the evidence, saying:

'We are therefore called upon to determine for the first time in this jurisdiction, the scope and effect of the constitutional provision. The language of the provision is plain and unambiguous, and to our minds clearly indicates that the power or duty to finally And conclusively settle the question of contributory negligence or assumption of risk is, by its terms, transferred from the court to the jury. If this is not the force and effect of the provision, we can conceive of no reason why the framers of the Constitution should have adopted the measure. We think that the evident purpose and intent of the provision is to make the jury the sole arbiter of the existence or nonexistence of contributory negligence or assumption of risk in all actions for personal injuries.' (Emphasis supplied) 21 Ariz. at 486--487, 190 P. at 90--91.

Later, this Court, in the case of Salt River Valley Water Users' Association v. Berry, 31 Ariz. 39, 250 P. 356 (1926), again cited to Chicago, R.I. & P.R. Co. v. Cole, supra, saying:

'Under the common law, if plaintiff's negligence entered into and formed part of the efficient or proximate cause of the injury, it defeated his right of action. Now, it does not, except upon the say-so of the jury. Clearly and unmistakably, this power has been given to the jury * * *.' 31 Ariz. at 47, 250 P. at 358.

Clearly and unmistakably, the defense of contributory negligence does not defeat a plaintiff's recovery unless the jury says it shall.

The meaning of the Arizona Constitution, Article 18, § 5 was not seriously questioned until Layton v. Rocha, supra, a period of nearly thirty-six years, although many statements had been made reiterating that the Constitution takes away from both the trial and appellate courts the right to determine whether, as a matter of either law or fact, the evidence shows that contributory negligence exists. See, e.g., Campbell v. English, 56 Ariz. 549, 110 P.2d 219 (1941); Dennis v. Stukey...