Otero v. Soto

• Decision Date: 11 June 1928
• Docket Number: Civil 2702
• Citation: 34 Ariz. 87,267 P. 947
• Parties: TEOFILO OTERO and FRANCISCO ROJAS, Appellants, v. HECTOR SOTO, an Infant, by CARMEN SOTO GONZALES, His Guardian ad Litem, Appellee
• Court: Arizona Supreme Court

267 P. 947

34 Ariz. 87

TEOFILO OTERO and FRANCISCO ROJAS, Appellants, v. HECTOR SOTO, an Infant, by CARMEN SOTO GONZALES, His Guardian ad Litem, Appellee

Civil No. 2702

Supreme Court of Arizona

June 11, 1928

APPEAL from a judgment of the Superior Court of the County of Pima.Gerald Jones, Judge.Judgment reversed and remanded, with instructions.

Messrs Curley & Pattee, for Appellants.

Mr John L. Van Buskirk and Mrs. Dorothy Sargent, for Appellee.

OPINION

LOCKWOOD, J.

This is an action for damages brought by Hector Soto against Teofilo Otero and Francisco Rojas.It is founded upon an injury received by plaintiff through a collision with a Ford truck, driven by Rojas and owned by Otero.Otero is the owner of a ranch in Santa Cruz county, and for several years prior to the accident Rojas had lived at the ranch, working for Otero.He was employed by the day and was not required or expected to work upon Sundays.At the time of the accident Otero was, and had been for some time, in the state of California.About five o'clock Sunday, July 25th, 1926, Rojas, without the knowledge or consent of Otero, started for Nogales in a Ford truck belonging to the latter, having invited two other young men to accompany him.When they were within about ten miles of Nogales, engine trouble occurred, and the truck stopped.Another car came along shortly, and the truck was fastened behind it with some fence wire, and the parties proceeded toward Nogales, Rojas guiding the truck, which was being towed by the other car.Plaintiff and his brother-in-law were returning from Nogales to Tucson on a motorcycle, and, while attempting to pass the two automobiles, an accident occurred, which resulted in Soto's receiving a broken leg.

The case was tried to a jury, which returned a verdict against both defendants in the sum of $12,500, and they have brought the matter before us for review.

There are some five assignments of error, each containing several subdivisions.It was admitted on the trial by counsel for defendants that the judgment as to Rojas should be sustained.We therefore will consider the case solely on Otero's appeal.We think it can be disposed of on the third assignment of error, which is that the court erred in denying Otero's motion for an instructed verdict.The determination of the questions, however, will involve a discussion of the respective theories of the case and of certain portions of the evidence, as well as of the law.It is plaintiff's theory that Rojas, Otero's employee, was at the time of the accident using the car in his employer's business, and that the latter is therefore liable for the negligence of Rojas.It is Otero's theory, on the other hand, that Rojas was using the car for the purpose of his own pleasure, and in no way upon Otero's business, and the latter is therefore not responsible for the accident.

There is no direct evidence in the case, so far as Otero is concerned, that the car was being used in or about his business.Soto, however, relies upon the rule of law that proof of the fact Otero owned the automobile which caused the injury was prima facie evidence that the vehicle was being driven for him, and in his business.This court has held in the case of Baker v. Maseeh,20 Ariz. 201, 179 P. 53, that the general rule is as stated by plaintiff.In that casewe say:

"The rule that proof of ownership makes out a prima facie case is based upon the best of reasons.When an owner's car is being driven by another, that fact is presumably within the knowledge of the owner, and he can readily show that the vehicle was not being driven for him, if such be the fact. . . .One who is damaged, . . . by an automobile negligently operated by some person other than the owner, is usually without information as to the relation between the driver and the owner.If he be required to make affirmative proof of the relation, he might never be able to do so. . . .

"On the other hand, if it be held, upon proof of ownership and negligence, that the burden shifts to the defendant owner to prove that the car was being driven . . . on an errand not connected with the owner's business, the one having a just and meritorious case is protected, and no hardship is imposed upon the owner. . . .

"The presumption of use and control arising from proof of ownership is not conclusive.It has the effect, however, to cast the burden of proof on the owner to show, if he can, that the negligent driver was not his servant or agent, or, if such servant or agent, he was not at the time using the vehicle in the business of the owner."

The nature of the presumption referred to above is discussed by the Supreme Court of Alabama in Tullis v. Blue,216 Ala. 577, 114 So. 185, as follows:

"It is well settled that those presumptions do arise from proof of the defendant's ownership of the vehicle; but it is well settled also that they are prima facie presumptions merely, or, as they are sometimes called, administrative presumptions, based upon considerations of fairness and convenience in placing the burden of proof.They are not in themselves evidence, and in practice their effect is merely to impose upon the defendant the burden of showing that the driver was not his agent, or that, if he was, he was not acting within the scope of his authority or in the course of his employment.If the evidence thereon is in conflict, or leads to doubtful inference only, the issue should go to the jury.If, however, the evidence, without dispute, rebuts the facts thus presumed, there is no issue for the jury, and the general affirmative charge should be given for the defendant on request."(Italics ours.)

If therefore, there be evidence in the case that the truck was not being used in Otero's business, which on the record as it stands cannot legally be disregarded, the presumption alone cannot be considered to raise an issue of fact which would cause the case to go...