Reed v. Hinderland
| Citation | 660 P.2d 464,135 Ariz. 213 |
| Decision Date | 22 February 1983 |
| Docket Number | No. 15827,15827 |
| Parties | , 37 A.L.R.4th 555 McCoy REED, Plaintiff-Appellant, v. Edward John HINDERLAND; Epic Extruded Plastics, Inc., an Arizona corporation, Defendants-Appellees. |
| Court | Supreme Court of Arizona |
David M. Berman, Phoenix, for plaintiff-appellant.
Robbins & Green, by Michael J. O'Grady, Phoenix, for defendants-appellees.
This action arose out of an accident between a truck, owned by appellee Epic Extruded Plastics, Inc. [Epic] and driven by appellee Edward Hinderland, and an automobile owned by appellant McCoy Reed and driven by his son, Arlen Reed. Appellant suffered severe physical injuries. The jury returned a verdict for the defendants and judgment was entered accordingly. After his motion for new trial was denied, appellant brought this appeal, which was transferred to this court pursuant to rule 19(e), Arizona Rules of Civil Appellate Procedure, 17A A.R.S. We reverse the trial court's judgment and remand for a new trial.
Appellant's complaint alleged that the accident was caused by appellee Hinderland's negligence and that Hinderland was driving the truck in furtherance of Epic's business. Appellees' answer denied all negligence and alleged as an affirmative defense "contributory negligence on the part of the plaintiff." Both sides served interrogatories and filed answers thereto. The parties also filed a joint pretrial statement which listed "the contributory negligence of plaintiff" among the contested facts. Almost eleven months after the pretrial statement was filed and one week before trial began, appellees filed a trial memorandum which stated in part:
If the jury finds that Arlen Reed was negligent, and that such negligence was a cause of the accident ..., the jury should be further instructed that such negligence should be imputed to McCoy Reed as the owner of the automobile which was being driven by Arlen Reed.
At trial, appellees requested that the jury be so instructed. Appellant objected that appellees' answer failed to plead the affirmative defense of imputed contributory negligence. The answer merely alleged that appellant was personally negligent; it did not allege that any agency relationship existed between Arlen Reed and appellant which would justify imputing Arlen's negligence to appellant, as required by rule 8(d), Arizona Rules of Civil Procedure, 16 A.R.S. An affirmative defense must be both pleaded and proven. Lakin Cattle Co. v. Engelthaler, 101 Ariz. 282, 419 P.2d 66 (1966). Appellant urged that since appellees failed to plead imputed contributory negligence, the matter was not properly at issue in the case.
We agree that the defense of imputed contributory negligence should have been specifically pleaded. Appellees' argument, that the answer was sufficient to raise the issue if construed as being based upon appellant's own negligence, misses the point. While the answer was certainly sufficient to alert appellant that his own negligence was alleged, that was not the theory upon which appellees tried the case. There was no evidence that appellant personally did or failed to do anything which caused the accident. It is evident that the defense of the case was based on the theory that evidence of the driver's negligence was imputed to the passenger-owner.
The great weight of authority holds that the affirmative defense of imputed contributory negligence must be specially pleaded. Carroll v. Beavers, 126 Cal.App.2d 828, 273 P.2d 56, 59 A.L.R.2d 263 (1954); Gervais v. Kostin, 48 Wis.2d 190, 179 N.W.2d 828 (1970); See also Siemes v. Englehard, 346 S.W.2d 560 (Mo.App.1961); Groff v. Circle K Corp., 86 N.M. 531, 525 P.2d 891 (App.1974); Annot., 59 A.L.R.2d 273 (1958) and cases therein.
"The appellants' claim of imputed negligence cannot be sustained, since agency and the imputed negligence resulting therefrom is an affirmative defense and must be pleaded or deemed waived." Gervais v. Kostin, 48 Wis.2d at 200, 179 N.W.2d at 834.
It is true that appellant could have determined appellees' actual theory by using interrogatories, but that fact does not alter appellees' burden of raising the affirmative defense. Appellees failed to allege in their answer any legal theory why any negligence of Arlen Reed should be imputed to appellant. Cf. Williamson v Varner, 252 N.C. 446, 114 S.E.2d 92 (1960), in which allegations both that the driver was negligent and that the driver was the agent of the car owner were found to be sufficient to raise the issue of imputed contributory negligence. Appellees also failed to move to amend their answer to conform to their theory. Since appellant objected to the arguments and instructions, the issue was not tried by express or implied consent. See Smith v. Continental Bank, 130 Ariz. 320, 636 P.2d 98 (1981); Hall v. Delvat, 95 Ariz. 286, 389 P.2d 692 (1964). Although pleadings are to be liberally construed, we hold that the answer which merely alleged "contributory negligence ... of the plaintiff" cannot be construed to allow, over objection, admission of evidence or jury instructions on imputed contributory negligence.
For the guidance of the court on retrial, we will consider certain other issues raised by the parties. First, appellant complains that a letter from his attorney to his insurance company should not have been admitted into evidence. The letter read in part: "An accident ensued being proximately caused by the negligent driving of Arlen Reed." Appellant objected when questioned about the attorney's statement; nevertheless, the letter was admitted into evidence. Appellant testified that he had never told anyone, including his attorney, that his son, Arlen, was at fault, and that he did not remember signing a release form or receiving any money. The defense offered into evidence a release form signed by appellant acknowledging receipt of a sum of money from his insurance company. The release was admitted over appellant's objection.
Appellees' theory for admitting the letter was that it was an admission against interest made on appellant's behalf by an agent authorized to make statements about the matter. The letter also rebutted appellant's claim at trial that Hinderland's negligence caused the accident. The release form was said to be evidence impeaching appellant's claim that he did not remember signing a release or receiving money as a result of his attorney's efforts.
We find that the letter and release were properly admitted for the legitimate purpose of attacking the credibility of appellant's testimony as to the cause of the accident. Because appellant's attorney was employed as his agent to deal with the insurance company upon this very issue, the attorney's statements bind appellant as the principal. As stated by J. Augustus Hand in Slifka v. Johnson, 161 F.2d 467, 469 (2d Cir.) cert. denied, 332 U.S. 758, 68 S.Ct. 57, 92 L.Ed. 344 (1947), in which statements made by a broker were held to be admissible:
The broker was authorized to arrange for the settlements with the companies.... We hold that the evidence objected to was competent.... [citations omitted] It would be strange to have a rule of agency binding a principal to unauthorized acts of an agent, when done within the apparent scope of his authority, and yet to adopt a rule of evidence which would exclude statements naturally made in the course of the agency.
Buehman v. Smelker, 50 Ariz. 18, 68 P.2d 946 (1937) is distinguishable because the attorney in Buehman made errors of fact (about the directions in which the cars were traveling) in a pleading. The letter here is not a pleading, and the statement is a legal conclusion upon a matter directly within the scope of counsel's agency.
Of course, the letter is not a solemn judicial admission. It is rather what Wigmore calls a "quasi admission," which is "nothing but an item of evidence" and "is therefore not in any sense final or conclusive." 4 Wigmore, Evidence § 1059 at 27 (Chadbourn rev. 1972) [emphasis in original]. When such a statement is offered into evidence the witness must be given the opportunity to explain or deny the statement. "This may involve the showing of a mistake, or the evidencing of circumstances which suggest a different significance to the words." Id. at 30-31. The trier of fact then determines what significance the statement has. As appellant was properly allowed to testify that the statement was unauthorized, we believe that the letter and release form were properly admitted.
Appellees sought to have the trial court rule as a matter of law that the negligence, if any, of appellant's son should be imputed to appellant, based upon either the family purpose doctrine, or, alternatively, upon an agency relationship. The court ruled that the family purpose doctrine was inapplicable, but it ruled any negligence of appellant's son would be imputed to appellant based upon a principal-agent relationship. The court then gave appellees' requested jury instructions to that effect.
Appellant objected to the giving of these instructions upon three grounds: First, appellees failed to plead imputed contributory negligence; second, the facts presented at trial failed to establish a principal-agent relationship as a matter of law; and third, the negligence of an agent who is not a servant is not imputed to his principal who is not his master.
The first of these objections has been discussed above. Because the same issues will arise on retrial, and the pleadings can be amended to raise the issue properly, we will also consider the other objections raised.
Appellant argues that the existence of an agency relationship is ordinarily a question for the trier of fact, Corral v. Fidelity Bankers Life Ins. Co., 129 Ariz. 323, 630 P.2d 1055 (App.1981), although the question...
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