Roman Catholic Church, Diocese of Tucson v. Keenan, 5391
| Decision Date | 21 April 1952 |
| Docket Number | No. 5391,5391 |
| Citation | 74 Ariz. 20,243 P.2d 455 |
| Parties | ROMAN CATHOLIC CHURCH, DIOCESE OF TUCSON et al. v. KEENAN. |
| Court | Arizona Supreme Court |
Knapp, Boyle, Bilby & Thompson, of Tucson, for appellant Roman Catholic Church.
Darnell, Robertson & Holesapple, of Tucson, for appellant E. Samuel Gercke.
Harold C. Wheeler and James M. Howsare, of Tucson, for appellee.
Appellee, Michael Keenan, brought this action through his guardian ad litem to recover damages for an injury incurred on the playground of the Catholic All Saints School in Tucson, Arizona. The trial of the cause resulted in a directed verdict in favor of all of the defendants at the close of plaintiff's testimony on the ground that no negligence was shown. Thereupon, plaintiff, appellee herein, filed a motion for new trial. The trial court granted the motion as to the defendants Roman Catholic Church, Diocese of Tucson, and E. Samuel Gercke, a general contractor, and denied the motion as to defendant L. M. White, a subcontractor. Appellants Gercke and Roman Catholic Church now appeal from the order granting a new trial.
The facts, stated in a light most favorable to appellee and to an affirmance of the order appealed from, are as follows:
Appellee, an eight year old boy at the time of the accident, was a duly enrolled student in the second grade at said All Saints School. A merry-go-round was maintained on the school playground for the use and enjoyment of the younger children in attendance. On the date of the accident, September 8, 1948, appellee was thrown from the moving merry-go-round and struck his head against some pipes stacked in close proximity to the merry-go-round. The pipes, which are referred to as 'monkey bars', were to be assembled at a later date as an addition to the playground equipment. As a result of the accident, appellee sustained a fractured skull which required hospitalization and operations and necessitated the placing of a steel plate in his skull.
Appellee's complaint alleged that his injuries would prevent him from engaging in normal activities for a long period of time and that he would be unable to engage in many types of activities for the remainder of his lifetime. Appellee alleged that the injuries were the direct and proximate result of defendants' negligence in leaving the pipes under and about the merry-go-round.
The first assignment of error of appellant Roman Catholic Church (hereinafter referred to as the Church) seeks to uphold the directed verdict in its favor by contending that it was and still is a charitable institution and that no negligence in the selection of its agents or employees who were charged to have been responsible for the injuries suffered by appellee was shown. After appellee's motion for new trial was granted, the Church moved for summary judgment on the grounds that it was a charitable institution as defined in Southern Methodist H. & S. v. Wilson, 45 Ariz. 507, 46 P.2d 118. The lower court's denial of this motion persents the basis for the Church's second assignment of error. As these two assignments of error raise the same issue they will be discussed together. Appellant's brief was written before our decision in Ray v. Tucson Medical Center, 72 Ariz. 22, 230 P.2d 220, which held charitable institutions are liable for the torts of their servants the same as any other party. The first two assignments of error therefore are without merit.
Appellant Church's third assignment of error contends the directed verdict must be unheld as appellee did not prove any negligence and that the court erred in granting a new trial as no legal reason existed for the setting aside of the directed verdict. Although appellee's motion for new trial did not specifically question the sufficiency of the evidence to sustain the verdict, appellant's third assignment of error now raises the issue. This court has always taken the stand that it will not reverse the trial court for granting a new trial when the evidence is conflicting. If there is conflicting evidence, therefore, the order granting a new trial must be affirmed. See Zevon v. Tennebaum, 73 Ariz. 281, 240 P.2d 548.
Bruce Michael Carrigan, a ten year old boy, was called as a witness for the appellee. He testified, in part, as follows:
'Q. Did you notice anything unusual about the merry-go-round or the surroundings that day, Mickey? A. They had monkey bars stacked up over by the side of it.
'Q. Monkey bars, what are those, Mickey? When you say 'monkey bars' what do you mean? A. Well, they are bars that they make up and kids climb around on them.
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'Q. Well, let me put the...
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