Hunsaker v. Smith

Decision Date19 February 1965
Docket NumberCA-CIV
Citation1 Ariz.App. 51,399 P.2d 185
PartiesR. N. HUNSAKER and Mary Lou Hunsaker, husband and wife, Appellants, v. Albert SMITH and Albert Smith as Guardian of Estate and Person of Darrell Schade, minor child, Appellees. 234.
CourtArizona Court of Appeals

Ramon R. Alvarez, Douglas, for appellants.

Frederick S. Smith, Superior, for appellees.

MOLLOY, Judge.

This is an appeal from a judgment rendered in favor of the plaintiff in a personal injury case arising from an automobile-motorcycle collision. The plaintiff, who was an 18 year old minor at the time, was a passenger upon a motorcycle which collided with the defendants' automobile at an intersection near Ray, Arizona. The two vehicles had been going in opposite directions on the same highway and at the intersection at which the collision occurred the defendants' automobile was negotiating a left turn.

Considering the evidence in the light most favorable to the judgment rendered by the court, the defendants' automobile had come to the intersection in question, had stopped, preparatory to making a left turn, and had permitted the passage of an automobile and a motorcycle going in the opposite direction. Thereupon, the defendants' automobile turned left. Following 100 feet behind the motorcycle which was permitted to pass was a motorcycle upon which the plaintiff was riding as a passenger. The posted speed limit in the area was 35 miles per hour and the motorcycle was traveling at less than this speed. The driver of the motorcycle assumed that the driver of the automobile would wait for his passage, but the automobile abruptly turned in front of the motorcycle. The motorcycle hit the defendants' car on the right rear thereof. The driver of the defendants' automobile did not see the motorcycle at all before the collision.

The case was tried to the court without a jury. Though there was no timely request for findings of fact and conclusions of law, as required by R.Civ.P. 52(a), 16 A. R.S., the court, in response to lengthy proposed findings filed by the defendants after the trial, made extensive findings of fact and conclusions of law.

Among the findings are that the plaintiff was not contributorily negligent, that there was no evidence presented that the driver of the motorcycle had failed to yield the right-of-way, that there was no evidence that the motorcycle was exceeding the posted speed limit nor a speed which was reasonable and prudent under the circumstances, and that there was not sufficient evidence to determine whether or not the driver of the motorcycle had failed to use proper evasive action to avoid the collision.

Included in the findings were statements by the court that indicated that its finding pertaining to the driver of the motorcycle not being negligent were 'immaterial', and that driving at a speed less than the posted speed was 'prima facie' not negligent. In its conclusions of law, the court indicated that any negligence of the driver of the motorcycle could not be imputed to the passenger.

In their brief, the defendants raised six assignments of error, but at the time of oral argument abandoned all but three of them. The three contentions now pressed are that the trial court erred: (1) in interpreting A.R.S. § 28-701 as providing that any speed less than the posted speed was prima facie a reasonable speed, (2) in refusing to find the driver of the motorcycle was negligent, and (3) in ruling that whether or not the driver of the motorcycle was negligent was 'immaterial' to the issues of this case.

The assignments are closely interrelated. They revolve around the question of whether or not the negligence of the driver of a vehicle in which a passenger is riding is an ultimate fact in issue in a case between the passenger and the driver of another vehicle.

There is no contention made by the appellants that the negligence of the driver of the motorcycle should be imputed to the plaintiff. There was no evidence of a master-servant relationship nor any evidence of a partnership or joint venture and therefore under the law there could be no such imputation. Salt River Valley Water Users' Ass'n v. Green, 56 Ariz. 22, 104 P.2d 162 (1940).

For this reason, the trial court obviously believed that the question of whether or not the driver of the motorcycle was negligent was not an ultimate fact in issue, and was not therefore a necessary part of the findings of fact rendered by the court. Findings of fact need include only 'ultimate' and/or 'essential' facts in issue. Gilliland v. Rodriquez, 77 Ariz. 163, 268 P.2d 334 (1954); Fritts v. Ericson, 87 Ariz. 227, 349 P.2d 1107 (1960).

The trial court's selection of the word 'immaterial' might be misconstrued. The conduct of the driver of the motorcycle was gone into in detail during the trial of the case, and the trial court obviously considered evidence pertaining thereto 'material' to determine whether the defendants' car was at fault. The court consistently ruled properly in this respect, and therefore there is no confusion as to what was meant by the statement in the findings of fact as to the...

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5 cases
  • Smith v. Delvin, 1
    • United States
    • Court of Appeals of Arizona
    • January 28, 1986
    ...right-of-way. Nevertheless, a driver may have the right-of-way and still be negligent or contributorily negligent. Hunsaker v. Smith, 1 Ariz.App. 51, 399 P.2d 185 (1965). As the Arizona Supreme Court stated in Henderson v. Breesman, 77 Ariz. 256, 269 P.2d 1059 [A] driver having the right of......
  • Sanitary Dist. No. 1 of Pima County v. State ex rel. Willey
    • United States
    • Court of Appeals of Arizona
    • February 24, 1965
    ......v. STATE of Arizona ex rel. William E. WILLEY, State Highway Engineer, Appellee. No. 2 CA-CIV 17. Court of Appeals of Arizona. Feb. 24, 1965.         [1 Ariz.App. 46] . Page 180. ...        Robert W. Pickrell, Former Atty. Gen., Darrell F. Smith, Atty. Gen., by J. Mercer Johnson, Sp. Asst. Atty. Gen., Tucson, for appellee. ......
  • Navajo Freight Lines, Inc. v. Liberty Mut. Ins. Co., 1
    • United States
    • Court of Appeals of Arizona
    • June 22, 1970
    ...to Rule 52(a), Supra, which are supported by substantial evidence will not be upset, altered or reversed on appeal. Hunsaker v. Smith, 1 Ariz.App. 51, 399 P.2d 185 (1965); City of Phoenix v. Burke, 9 Ariz.App. 395, 452 P.2d 722 (1969); Ashton Co. v. State, 9 Ariz.App. 564, 454 P.2d 1004 The......
  • Muhammad v. United States, 20624.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 29, 1966
    ...Bashie Muhammad and Joyce Muhammad. Salt River Valley Waters Users Ass'n. v. Green, 56 Ariz. 22, 104 P.2d 162 (1940); Hunsaker v. Smith, 1 Ariz.App. 51, 399 P.2d 185 (1965). There is no evidence in the record to indicate that Brown's negligence should be imputed to either Bashie or Joyce Mu......
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