Patterson v. Chenowth, 6769

Citation89 Ariz. 183,360 P.2d 202
Decision Date08 March 1961
Docket NumberNo. 6769,6769
PartiesDurward K. PATTERSON and Johnie Lee Patterson, his wife, Appellants, v. Amos H. CHENOWTH and Ladorna Chenowth, his wife, Appellees.
CourtArizona Supreme Court

McCarty, Chandler & Udall, Tucson, for appellants.

W. Shelley Richey, Douglas, for appellees.

LOCKWOOD, Justice.

Plaintiffs, appellees herein, sued the defendants, appellants herein, for damages for the burning of a stack of plaintiffs' grain. A jury rendered a verdict in favor of the plaintiffs and against the defendants in the sum of $4,400. The defendants, who had moved for a directed verdict, then moved for judgment n. o. v., or in the alternative for a new trial. Both of these motions were denied. From the judgment and the order denying their motions defendants have taken this appeal.

The evidence appears to be as follows: The defendant Durward K. Patterson had an agreement with Casa Grande Warehouse Company to haul grain from plaintiffs' ranch. Patterson drove his truck to plaintiffs' ranch, where he parked it some distance from the grain stack, and told the plaintiff Amos Chenowth to move it whereever it was needed. He knew at the time there was a broken heater switch on the truck, and that the carburetor had been flooding for several days previously, but he did not mention this condition to the plaintiffs or any of their employees. Plaintiff Chenowth moved the truck about three days thereafter to a spot near a grain stack, and approximately two to two and one- half hours later a fire was noticed under the truck. The fire started from a short in the broken wiring of the heater switch, and 'dripped down' onto chaff under the truck, which ignited and spread the fire to the grain stack.

Defendants assert that the trial court erred: (1) In allowing the witness Austin to testify as to his opinion as to the cause of the fire; (2) in refusing to strike the opinion testimony of the witness Austin; and (3) in refusing to grant defendants' motion for a directed verdict at the conclusion of plaintiffs' case, and in refusing to grant defendants' motion for judgment n. o. v.

Defendants advance the proposition of law that a bailor's duty to a bailee is to use ordinary care to see that equipment is in a reasonably safe condition, presumably in support of their third assignment of error. With this proposition we are in agreement. Casey v. Beaudry Motor Co., 83 Ariz. 6, 315 P.2d 662. Nor is it denied that the relationship between plaintiffs and defendants was that of bailor and bailee. The record shows that the defendant Patterson knew of the defective condition existing in his truck at the time it was delivered onto plaintiffs' land. He knew that if the ignition were turned on when the broken wires were hanging down, that a short might occur. The wiring and the broken switch were under the dash board. Defendant did not tell the plaintiff or any of his employees of the defective condition of the truck. Under such circumstances, there was sufficient evidence to submit to the jury for its determination whether or not the defendant as bailor used ordinary care to see that his truck was in a reasonably safe condition at the time he left it on the plaintiffs' property.

Defendants' objection regarding lack of foundation appears to be that Austin had not examined the truck immediately before the fire occurred, and that because the fire had destroyed some of the insulation and had charred the wires, the 'machinery was not in the same condition when examined as it was at the time of the accident'. While it is true that there must be a foundation upon which the expert can base his opinion, it is not essential that the foundation evidence come from the expert himself. Manney v. Housing Authority of City of Richmond, 79 Cal.App.2d 453, 460, 180 P.2d 69, 73. In the himself was the testimony of the defendant himself was that the heater switch was broken and that at least one 'hot' wire was exposed when he left the truck on plaintiffs' property. The witness Austin testified that he was a mechanic of some twenty years' experience, particularly in electrical and wiring systems of automobiles and trucks; that he had arrived at the scene while the truck...

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10 cases
  • State ex rel. Herman v. Wilson
    • United States
    • Arizona Court of Appeals
    • December 6, 1966
    ...324 P.2d 220 (1958), or upon assumption that some portion of the testimony of others already in evidence is true. Patterson v. Chenowth, 89 Ariz. 183, 360 P.2d 202 (1961), Burdick v. Mann, 60 ND. 710, 236 N.W. 340, 82 A.L.R. 1443 (1931). He must, however, base his opinion only upon competen......
  • Gilbert v. Quinet
    • United States
    • Arizona Supreme Court
    • February 28, 1962
    ... ... Patterson v. Chenowth, ... 89 Ariz. 183, 360 P.2d 202 (1961), Burdick v. Mann, 60 N.D. 710, 236 N.W. 340, ... ...
  • Lechuga, Inc. v. Montgomery
    • United States
    • Arizona Court of Appeals
    • April 9, 1970
    ...to those who may be expected to use it.' This same duty of a lessor of personal property is imposed in Arizona. See Patterson v. Chenowth, 89 Ariz. 183, 360 P.2d 202 (1961); Casey v. Beaudry Motor Co., 83 Ariz. 6, 315 P.2d 662 (1957). That defendant was required to lease a chattel as safe f......
  • State v. Michael
    • United States
    • Arizona Supreme Court
    • April 2, 1971
    ...objects not in evidence is within the sound discretion of the trial court, according to the circumstances existing. Patterson v. Chenowth, 89 Ariz. 183, 360 P.2d 202; State v. Romo, 66 Ariz. 174, 185 P.2d 757. We can find no error to the defendant in admitting this limited The missing shell......
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