Kelch v. Courson

• Decision Date: 27 November 1968
• Docket Number: No. 9296--PR,9296--PR
• Citation: 103 Ariz. 576,447 P.2d 550
• Parties: W. O. KELCH and Estelle D. Kelch, Appellants, v. Donald E. COURSON and Harold Eugene Andrews, Appellees.
• Court: Arizona Supreme Court

Page 550

447 P.2d 550

103 Ariz. 576

W. O. KELCH and Estelle D. Kelch, Appellants, v. Donald E. COURSON and Harold Eugene Andrews, Appellees.

No. 9296--PR.

Supreme Court of Arizona, In Banc.

Nov. 27, 1968.

Charles M. Brewer, James D. Lester, Phoenix, for appellants.

Lewis, Roca, Scoville, Beauchamp & Linton, by James Moeller, Phoenix, for appellees.

McFARLAND, Chief Justice.

This case is before us on a petition for review of a decision of the Court of Appeals affirming a judgment of the Superior Court. Plaintiffs W. O. Kelch and his wife Estelle Kelch sued defendants Donald Courson and Harold Andrews for injuries received in an automobile accident. Courson obtained a directed verdict, and is not a party to this appeal. The jury found for defendant Andrews, and plaintiffs have appealed.

The accident occurred when plaintiffs were driving east on Camelback Road in Phoenix. The street has two eastbound lanes and two westbound lanes; plaintiffs' car was in the lane nearest the south curb. As plaintiffs approached 23d Avenue, there was, in the lane immediately to their left, also facing east, a car pulling a boat and trailer which was stopped and waiting for westbound traffic to clear so that it could turn left. There were no signs or lights controlling eastbound or westbound traffic.

As plaintiffs entered the intersection, defendant Andrews, who had been driving west on Camelback Road, turned left in front of plaintiffs, and a collision took place.

The principal argument of plaintiff, on appeal, is that the trial court erred in giving the following instruction on contributory negligence:

'If you find * * * that the plaintiff, Mr. Kelch, was guilty of negligence, however slight, and if you also find that said negligence, if any, proximately contributed to cause the injuries to plaintiffs, then the law leaves the parties where it finds them, and neither plaintiff should recover from the defendant, even though you do find the defendant was guilty of negligence. * * *'

Plaintiff argues that (1) this instruction is impropery worded, and (2) no instruction on contributory negligence was warranted, as there was no evidence of such negligence. The only objection made in the trial court was on ground (2).

Ground (1) is entirely without foundation. We have held that the subject matter of contributory negligence is so important that a failure to treat it properly in the court's instructions is fundamental error which we will review even where--as in the instant case--plaintiff failed to make a proper objection in the trial court. Trojanovich v. Marshall, 95 Ariz. 145, 388 P.2d 149. However, we have twice had before us the exact language to which plaintiffs now object. In Layton v. Rocha, 90 Ariz. 369, 368 P.2d 444, the jury was instructed that if both parties were negligent and that negligence contributed to the accident, the law would 'leave them where it finds them,' and the verdict 'may' be for the defendant. In that case we said:

'The form given here was that it May so find. We think the preferable form is that in the event of contributory negligence the jury 'should' find for the defendant.'

In Evans v. Pickett, 102 Ariz. 393, 430 P.2d 413, we admitted that the words 'the law would leave them where it finds them' tended to confuse the issue, but we approved the instruction in spite of those words, and re-affirmed our approval of the use of the word 'should,' in connection with the jury's duty to find for the defendant. We see nothing in Schmidt v. Gibbons, 101 Ariz. 222, 418 P.2d 378, which is inconsistent with Layton, supra, and Evans, supra.

Ground (2) presents a fact question. In our opinion there was evidence from which the jury could have reasonably found contributory negligence. For example, police officer DeWitt, called by plaintiffs, testified that plaintiffs' car could have been going forty miles per hour, though the speed limit was 35. Furthermore, plaintiffs' auto was approaching an intersection where their view of oncoming westbound traffic was obscured by the waiting car towing a boat and trailer in the lane to their left. The jury might have found that even the 35-miles-per-hour speed limit was too fast under the circumstances.

Plaintiffs also argue that they were deprived of a fair trial by defendant's misconduct in (a) failing to amend his answers to interrogatories to indicate that his wife had died since the commencement of the action, and (b) telling the jury, in his closing argument, that had she been a witness her testimony would have corroborated defendant's. It seems to have been conceded that the failure of defendant to disclose his wife's death was inadvertent. Plaintiffs' attorney, during his closing argument, commented upon the failure of defendant to produce his wife as a witness (since she was in his car at the time), thus implying that she was kept off the stand because her testimony would have been adverse to defendant. To answer this comment, and the implication, defendant's attorney told the jury that defendant's wife had recently died of lateral sclerosis, and that her testimony would not have varied from defendant's.

Plaintiffs argue that had defendant followed the rules, he would have amended...