Heimke v. Munoz, 1

• Decision Date: 31 December 1969
• Docket Number: No. 1,CA-CIV,1
• Citation: 11 Ariz.App. 126,462 P.2d 819
• Parties: Howard HEIMKE and Juanita Heimke, his wife, Appellants, v. Robert Lopez MUNOZ and Gilbert M. Munoz and Jane Doe Munoz, parents of Robert Lopez Munoz, Appellees. 968.
• Court: Arizona Court of Appeals

Page 819

462 P.2d 819

11 Ariz.App. 126

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

No. 1 CA-CIV 968.

Court of Appeals of Arizona, Division 1, Department B.

Dec. 31, 1969.

Rehearing Denied Jan. 23, 1970.

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

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

HAIRE, Judge.

Plaintiffs filed an action seeking to recover for alleged personal injuries arising out of an automobile collision. In the trial court the jury returned a verdict for the defendants and judgment was entered in accordance therewith.

Plaintiffs have raised several questions on this appeal, but we find it necessary to discuss only those relating to the trial court's alleged error in instructing the jury concerning the defense of contributory negligence. The instruction complained of reads as follows:

'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).

Plaintiffs contend that the foregoing constitutes a mandatory or 'must' contributory negligence instruction and that it is therefore in violation of Ariz.Const. art. 18, sec. 5, as interpreted in Layton v. Rocha, 90 Ariz. 369, 368 P.2d 444 (1962).

On the other hand defendant contends (1) that the instruction complained of deals with imputed negligence and thus is not a mandatory instruction on contributory negligence; (2) that there was a separate proper instruction on contributory negligence, and that the instructions considered as a whole properly informed the jury of its duty concerning contributory negligence; and (3) that plaintiffs waived their right to assign as error the giving of said instruction.

Art. 18 of the Arizona Constitution is entitled 'Labor'. Sec. 5 thereof provides as follows:

'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.'

This section has not been amended since its adoption at the Arizona Constitutional Convention in 1910. Although it has been cited and discussed in many interim decisions, it was not until the 1962 Layton decision that the doctrine upon which plaintiffs rely gained a foothold in Arizona law. Based upon the above quoted constitutional provision the Layton decision held that it would be error for a trial court to instruct a jury that if it found plaintiff guilty of contributory negligence which was a proximate cause of plaintiff's injuries, the verdict 'must' be for the defendant. While the court in Layton disapproved the mandatory 'must', it approved the word 'may' used in a permissive sense as it was in Layton, but stated that the preferable form for such instruction was that in the event the jury found said contributory negligence and causation, the jury 'should' find for the defendant. The Layton doctrine has been applied in several subsequent Arizona Supreme Court decisions. Trojanovich v. Marshall, 95 Ariz. 145, 388 P.2d 149 (1963); Deering v. Carter, 92 Ariz. 329, 376 P.2d 857 (1962); Kelch v. Courson, 103 Ariz. 576, 447 P.2d 550 (1968). As we interpret these decisions, a plaintiff's admitted contributory negligence has ceased to be a defense available as a matter of law to a defendant, but rather now exists in the nature of largess, a gratuity to be dispensed by the jury if it feels inclined to do so.

Although this court is bound by the prior decisions of our Supreme Court in this matter, we cannot help but wonder whether or not the above-cited decisions have correctly interpreted Art. 18, Sec. 5, when these decisions allow the jury to completely disregard the defense of contributory negligence after it (the jury) has found from the facts that the plaintiff has been contributorily negligent and that such negligence was a proximate cause of plaintiff's injuries. We do not doubt that the drafters of our constitution intended to reserve to the jury the right to determine the question of causation and to determine what facts constitute contributory negligence, and that they further intended to deprive the court of the right to rule that certain facts would constitute contributory negligence as a matter of law. See Wolfswinkel v. Southern Pacific Co., 82 Ariz. 33, 307 P.2d 1040 (1957). However, we cannot believe that the drafters of the constitution intended that the defense of contributory negligence was not to be available as a matter of law once the jury found that a party was negligent and that such negligence was a proximate cause of his injuries.

Most of the reasons which lead us to believe that the Layton interpretation of this constitutional provision is erroneous are set forth in the dissenting opinion of Justices Udall and Jennings in Layton. Further, we think the criticisms of Judge Molloy in Vegodsky v. City of Tucson, 1 Ariz.App. 102, 399 P.2d 723 (1965), are cogent. In that decision,...