Lutz v. Faith, 7273
| Decision Date | 30 October 1963 |
| Docket Number | No. 7273,7273 |
| Parties | Francis Roy LUTZ and Gladys Pearl Lutz, his wife, Appellants, v. Joe August FAITH and Rose Faith, his wife, Appellees. |
| Court | Arizona Supreme Court |
Lewis, Roca, Scoville, Beauchamp & Linton, by John P. Frank, Phoenix, for appellants.
Baumann & Rosengren, Scottsdale, for appellees.
Appellant was defendant in a negligence action. He appeals from a verdict and judgment for the plaintiff. The only assignment of error is that in his charge on contributory negligence the trial judge used the permissive 'may' rather than the mandatory 'must' in instructing the jury on whether they should return a verdict for the defendant if they found the plaintiff contributorily negligent.
Appellant concedes that our decision in Layton v. Rocha, 90 Ariz. 369, 368 P.2d 444 is controlling on this point, but asks us to reconsider and overrule that decision. We are of the opinion that our decision in Layton v. Rocha, supra, was correct, adequately explained the reason for the rule, and we are disposed neither to overrule nor to enlarge on the decision in that case.
Affirmed.
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...though there is, and it finds that there is, contributory negligence. Layton v. Rocha, 90 Ariz. 369, 368 P.2d 444 (1962); Lutz v. Faith, 95 Ariz. 40, 386 P.2d 85 (1963). In Layton v. Rocha, supra, the Supreme Court of Arizona held that it is not erroneous for the trial court to instruct a j......
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...and we have recently reaffirmed the Arizona rule on contributory negligence in Layton v. Rocha, 90 Ariz. 369, 368 P.2d 444; Lutz v. Faith, 95 Ariz. 40, 386 P.2d 85. Mitigating circumstances can only apply where there have been such aggravating circumstances as to justify an award of punitiv......
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...they 'must' find for the defendant on the issue of contributory negligence. Layton v. Rocha, 90 Ariz. 369, 368 P.2d 444; Lutz v. Faith, 95 Ariz. 40, 386 P.2d 85. But this does not mean that the trial judge must submit the issue of contributory negligence to the jury where there is no eviden......