Quintero v. Continental Rent-A-Car System, Inc.

• Decision Date: 29 April 1969
• Docket Number: RENT-A-CAR,No. 1,A-C,CA-CIV,1
• Citation: 453 P.2d 999,9 Ariz.App. 488
• Parties: Marilyn Joan QUINTERO, as Mother of David Earl Walk, Susan Kay Walk and Laula Ann Walk, surviving minor children of Walter H. Walk, Deceased, Appellant, v. CONTINENTALSYSTEM, INC., a Colorado corporation; Marshall C. Christy and Mary Louise Christy, husband and wife dba Continental Rent-ar of Phoenix; Continental Rent-ar of Arizona, Inc., an Arizona corporation, Appellees. CIV 651.
• Court: Arizona Court of Appeals

Page 999

453 P.2d 999

9 Ariz.App. 488

Marilyn Joan QUINTERO, as Mother of David Earl Walk, Susan Kay Walk and Laula Ann Walk, surviving minor children of Walter H. Walk, Deceased, Appellant, v. CONTINENTAL RENT-A-CAR SYSTEM, INC., a Colorado corporation; Marshall C. Christy and Mary Louise Christy, husband and wife dba Continental Rent-A-Car of Phoenix; Continental Rent-A-Car of Arizona, Inc., an Arizona corporation, Appellees.

No. 1 CA-CIV 651.

Court of Appeals of Arizona.

April 29, 1969.

Rehearing Denied May 19, 1969.

Review Granted June 10, 1969.

Harold Goldman and Charles H. Ripps, Phoenix, for appellant.

Rawlins, Ellis, Burrus & Kiewit, Norman D. Hall, Jr., Phoenix, for appellees.

STEVENS, Judge.

The basic issue presented on this appeal relates to the propriety of a summary judgment granted by the trial court in favor of defendants and against plaintiff in a wrongful death action arising out of a one-car accident. The action was commenced by plaintiff, as mother, on behalf of three minor children for the death of the children's father, Walter H. Walk. Defendants were the owners of a business known as Continental Rent-A-Car of Phoenix, which business was the lessor of the automobile driven by Walk at the time of the accident which resulted in his death. A passenger in the automobile at the time of the accident brought a separate action against defendants, the outcome of which is reported as Christy v. Baker, 7 Ariz.App. 354, 439 P.2d 517 (1968). That decision was filed by this Court subsequent to the perfecting of the appeal now before us. The summary judgment, which is the subject matter of this appeal, was based primarily upon the pleadings. Although both parties submitted answers to written interrogatories and filed affidavits in support of their respective positions in the summary judgment proceedings, the evidence contained in these documents was not dispositive of the issues joined in the pleadings.

The Christy opinion is of interest on some aspects of the case before us, but is not controlling as to liability. The theory of recovery was not the same. The doctrine of collateral estoppel, discussed in Di Orio v. City of Scottsdale, 2 Ariz.App. 329, 408 P.2d 849 (1965) and in Spettigue v. Mahoney, 8 Ariz.App. 281, 445 P.2d 557 (1968) does not apply in this instance.

Plaintiff commenced her action against defendants on 6 November, 1964, based upon the theory that defendants were negligent in leasing an automobile to the deceased, Walk, because he was not competent to drive at the time the automobile was delivered to him. Paragraph VI of the complaint alleged:

'That the Defendants were negligent and reckless in that they knew, or in the exercise of due care should have known, that at the time Defendants leased and entrusted said automobile to the deceased, Walter H. Walk, he did not possess a valid driver's license from the State of Arizona, but that his driving privileges had been revoked and/or suspended by the Arizona State Highway Department; and that Defendants knew, or in the exercise of due care should have known, that the deceased, Walter H. Walk, was under the influence of intoxicating beverages and unable to properly or legally drive a motor vehicle on the highways of the State of Arizona.'

Paragraph VII alleged:

'That as the direct and proximate cause (sic) of the Defendants' negligence and recklessness in leasing and entrusting said automobile to deceased, Walter H. Walk, as aforesaid, the deceased drove said automobile on a public highway known as Arizona Highway No. 87 in a reckless and negligent manner, causing a collision of said automobile and resulting in his death.'

Defendants answer admitted ownership of the leased automobile and lease thereof to Walk but specifically denied all material allegations of plaintiff's complaint. The answer further alleged as an affirmative defense 'that the damages and injury sustained by the plaintiffs, if any, were caused or at least contributed to, by the negligence of the deceased Walter H. Walk.'

On 31 March, 1967, defendants moved for summary judgment on the grounds that plaintiff's complaint admitted that Walk was contributorily negligent and that such negligence was imputed to plaintiff under the Arizona wrongful death statute, thus barring plaintiff's cause of action as a matter of law. Plaintiff opposed the motion on the grounds that the complaint stated a good cause of action based upon the doctrine of negligent entrustment and that defendants' denial of all material allegations created a genuine issue of fact precluding summary judgment. Plaintiff further asserted that contributory negligence was not a defense to an action based upon negligent entrustment; that the contributory negligence of Walk, if any, was not imputed to plaintiff under Arizona's wrongful death statute; and that in any event contributory negligence is always a question for the jury under the Arizona Constitution.

The trial court entered a summary judgment in favor of defendants on 13 April, 1967, and a formal written judgment was filed on 10 May, 1967. Plaintiff filed a timely notice of appeal and this appeal followed.

Although plaintiff advances numerous arguments as grounds for reversal, we find it sufficient to limit our consideration to three main questions. First, assuming, for Rule 56, Arizona Rules of Civil Procedure, 16 A.R.S. is the rule governing summary judgments. Rule 56(c) establishes the test for determining when the granting of a summary judgment is proper:

                the sake of the motion for summary judgment, that Walk was intoxicated and unfit to drive the vehicle at the time the defendants surrendered and entrusted the vehicle to him, and that by reason of his intoxication he negligently drove the vehicle thus proximately contributing to the cause of the accident and his death, may this fact be the subject of a motion for summary judgment?   Second, if the answer to the first question is in the negative, and had Walk sustained injuries, rather than death, would he have had a claim for relief against the defendants under the circumstances set forth in the first question?   Third, is the defense of contributory negligence available against the minor children who sustained no personal physical damage and whose claim for relief arises out of their father's death
                

'* * * The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact that the moving party is entitled to a judgment as a matter of law. * * *.'

Rule 56(c) and not Rule 56(e) is applicable notwithstanding the fact that the file contains answers to interrogatories and affidavits. Rule 56(e) is not applicable for the reason that the matters stated under oath are not dispositive of the issues framed by the pleadings. In applying this test to the matter before us, we follow the established rule that the record must be viewed in the light most favorable to plaintiff, the party opposing the motion for summary judgment. Hensley v. A. J. Bayless Stores, Inc., 5 Ariz.App. 550, 429 P.2d 1 (1967); Kiser v. A. J. Bayless Markets, Inc., 9 Ariz.App. 103, 449 P.2d 637 (1969).

CONTRIBUTORY NEGLIGENCE

The Arizona Constitution (Art. 18, § 5, 1 A.R.S.) provides:

'(t)he defense of contributory negligence * * * shall, in all cases whatsoever, be a question of fact and shall, at all times, be left to the jury.'

In Inspiration Consolidated Copper Co. v. Conwell, 21 Ariz. 480, 190 P. 88 (1920) our Supreme Court stated that:

'(t)he language of the provision is plain and unambiguous * * *.'

We do not deem it necessary to cite the many later Arizona cases to the same effect. However, see a recent case, Davis v. Waters, 103 Ariz. 87, 436 P.2d 906 (1968). The constitutional mandate has equal force in the consideration of a motion for summary judgment. Olsen v. Macy, 86 Ariz. 72, 340 P.2d 985 (1959).

We hold that...