Johnston v. Hare

• Citation: 246 P. 546,30 Ariz. 253
• Decision Date: 02 June 1926
• Docket Number: Civil 2470
• Parties: THOMAS D. JOHNSTON, Appellant, v. WALTER B. HARE, Appellee
• Court: Arizona Supreme Court

246 P. 546

30 Ariz. 253

THOMAS D. JOHNSTON, Appellant, v. WALTER B. HARE, Appellee

Civil No. 2470

Supreme Court of Arizona

June 2, 1926

APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge.

Affirmed.

Mr. F L. Zimmerman, for Appellant.

Messrs Alexander & Christy and Mr. Hess Seaman, for Appellee.

Ross J. McAlister, C. J., and Lockwood, J., concur.

OPINION

Ross, J.

This action grows out of an automobile accident which each party claims was occasioned by the negligence of the other. It was brought by Johnston as plaintiff to recover damages for personal injuries, and defendant, Hare, answered, denying negligence on his part, and cross-complained, alleging that the accident was due to plaintiff's negligent operation of his Chevrolet truck, and asked for damages for injuries to defendant's Jordan touring car.

The case was tried to a jury, and upon its close defendant moved for an instructed verdict, upon the grounds hereinafter set out, which motion was granted. Under instructions of the court as to the law, the jury, after deliberation, returned a verdict against defendant on his cross-complaint. Neither recovered any damages against the other.

The plaintiff has appealed from the order directing a verdict against him and from the judgment thereon, and has assigned such order and judgment as error.

The complaint alleges that at the time of the accident, to wit, December 27, 1924, defendant's car was being driven by "Roy F. Sanders, a relative and minor of the defendant, then and there under his supervision, control, and custody, . . . and was being used for the business or pleasure of said defendant, by his direction, authority, and knowledge. . . ."

The motion for an instructed verdict challenged the sufficiency of the evidence to establish the above allegation. Among other things the motion asserted:

"That the undisputed evidence shows that Roy Sanders was driving the automobile of defendant at the time the collision occurred for his own business, purpose, and pleasure, and not on any purpose, business, or pleasure of this defendant, and without the knowledge, direction, or authority of this defendant, and against the express order and direction of this defendant, and there are no facts in the record from which the acts of said Roy F. Sanders can be imputed to this defendant."

The evidence is to the effect that defendant and Sanders are second cousins, and were living in widely different parts of the city of Phoenix, the defendant at the Arizona Club and Sanders at a rooming-house at 373 North Second Avenue. Sanders came to Phoenix in September, 1924; he was twenty years old and in poor health. Defendant, who had lived in Phoenix for some years, introduced Sanders into his circle of friends and acquaintances, assisted him in making proper social and church connections, and extended to him many courtesies and kindnesses, evidently because of their kinship. Defendant was much older than Sanders. He invited Sanders to dine at the Arizona Club occasionally, frequently took him for rides in his automobile, and had at times sent Sanders, who was an experienced driver, to the garage to get the car when they were going for a ride, and had also at times had him return the car to the garage. On the evening of December 27th the two of them had gone to the Rialto Theater in the car, and after the show had driven to the Bear Drug Store, at the corner of Washington Street and Second Avenue, for a drink of Coca-Cola. On coming out of the drug-store defendant, stating that he would walk to the Club asked Sanders to take the car to the garage, a distance in a direct line of one and one-half blocks, but to get to which, as the car was parked, it was necessary to go three and one-half blocks to comply with the law of the road. Sanders started as directed to return the car to the garage, but instead of doing so he proceeded to go to the home of a friend on North Seventh Avenue, some thirteen blocks away from garage, and while driving west on McKinley Street, at the junction of Sixth Avenue, collided with plaintiff's car. After the accident defendant wrote plaintiff demanding that the latter make good to...