Salinas v. Kahn
| Decision Date | 29 October 1965 |
| Docket Number | CA-CIV |
| Citation | 2 Ariz.App. 181,407 P.2d 120 |
| Parties | Pete SALINAS and Allan Arthur Transportation, Inc., a corporation, Appellants, v. Esther R. KAHN, as surviving widow of Manuel S. Kahn, deceased, Allied Van Lines, Inc., a corporation, York Moving and Storage Co., a corporation, Sandra Branam, as personal representative of the Estate of Robert W. Branam, deceased, Sandra Branam, et al., and Nancy Hilligoss, aka Nancy Kahn, individually and as next best friend of Pamela Hilligoss, et al., Appellees. * 243. |
| Court | Arizona Court of Appeals |
Snell & Wilmer, by Roger W. Perry, Phoenix, for appellants.
Lesher, Scruggs, Rucker, Kimble & Lindamood, by D. Thompson Slutes, Tucson, for appellee Esther R. Kahn.
Hirsch, Van Slyke, Richter & Ollason, by Clague A. Van Slyke, Tucson, for appellee Nancy Hilligoss.
Chandler, Tullar, Udall & Richmond, by S. Thomas Chandler, Tucson, for appellees Allied Van Lines, Inc., York Moving & Storage Co., and Sandra Branam.
This is an appeal arising from a collision of two large trucks on an interstate highway just east of Gila Bend, Arisona. A truck and a trailer hauling sheep, owned by Allan Arthur Transportation, Inc., and driven by Pete Salinas, was proceeding west on this highway at about 2 p. m., on October 25, 1960, when it had engine trouble. The highway in question is of the new interstate type and is divided by a dirt median; there are two strips of paving, each 38 feet in width, for traffic in opposite directions.
The entire paved width of this 38 feet is level. However, only a 24-foot strip has been finished with a covering of 'chat,' a material which gives the highway greater wearing quality and is a lighter color than the rest of the paving. This 24-foot strip is divided with a painted line down the center so as to provide two lanes of 12 feet wide each. These two lanes carry substantially all of the vehicular traffic on this highway.
Of the remaining 14 feet of the highway not so covered with chat, 4 feet are on the left-hand or southside of the highway and 10 feet are on the right-hand or northside of the highway. The 4-foot strip on the left-hand side was referred to in the testimony as a 'shoulder' and the strip of 10 feet on the right-hand side was referred to in the testimony as an 'emergency parking lane.' Other than the change in color there was no marking on the highway to separate this shoulder and this 'parking lane' from the two 'driving' lanes. In the area where the accident occurred, on the right-hand side of the highway, there was a 6-inch 'curb' or 'ridge' of asphalt. The highway is posted in the area in question, on the right-hand side of the 38-foot strip, with signs bearing the following legend: 'Emergency Parking Only.'
When Salinas developed engine trouble, he pulled over into the 10-foot 'parking lane,' stopped his vehicle, and caught a ride into Gila Bend from another Arthur Allan Transportation truck with which he was in convoy. There he called his employer and was instructed to leave his truck and trailer in the parking lane until one of the other trucks could return from unloading its sheep near Welton, Arizona, to take over his load of sheep. The sheep in question were pregnant ewes, which animals require more gentle handling than ordinary livestock. Late in the afternoon, Salinas returned to his truck and at 12:40 the next morning was sound asleep in his cab. At this time, the trailer of the Allan Arthur rig was hit in the rear by a large semi-truck of Allied Van Lines traveling at approximately 60 miles per hour. The impact was to the left of center of the trailer and to the right of center of the Allied Van cab. The Allan Arthur rig was pushed many feet forward, the front and rear of the cab of the Allied Van truck were telescoped together, and the driver and a passenger were killed. The driver of the Allied truck at the time was a Robert Branam and the passenger Manuel Kahn.
Three civil actions were filed as a result of the accident, and were tried together. One action was brought by Salinas and Allan Arthur Transportation, Inc., seeking to recover damages from Allied Van Lines, the Estate of Robert Branam and York Moving and Storage Company, an agent of Allied Van Lines. Another action was filed by Esther Kahn as surviving widow of Manuel Kahn on behalf of herself and two minor children seeking recovery from the Estate of Robert Branam, Allan Arthur Transportation, Inc., Allied Van Lines and York Moving and Storage Company. The third action is one filed by Nancy Hilligoss, also known as Nancy Kahn, for herself and four minor children. This latter complaint alleges that Manuel Kahn had 'accepted the obligation for support and maintenance' as to the said Nancy Hilligoss and said minor children.
At the trial, the court ruled that the undisputed facts established the negligence of Robert Branam and Allied Van Lines. The court further directed a verdict in favor of the defendant York Moving and Storage Company. There is no appeal from these rulings. The case went to the jury on the question of whether Salinas and Allan Arthur Transportation had been negligent and whether such negligence, if any, contributed to the accident. The jury's verdicts were adverse to Salinas and Allan Arthur Transportation and these two parties have appealed to this court from the judgments rendered on such verdicts.
There are numerous assignments of error. The first assignment is that the court erred in denying the motion of Allan Arthur Transportation and Salinas to dismiss the complaint on Nancy Hilligoss on the grounds that she had no capacity to maintain an action for the wrongful death of Manuel Kahn. This motion was not made until after the opening statements of counsel to the jury. From opening statements, it was apparent that Nancy Hilligoss was neither a widow nor a personal representative of the deceased Kahn, but rather was a woman with whom he was living and by whom he had fathered a child.
The wrongful death act under which this complaint was brought provides in part:
'An action for wrongful death shall be brought by and in the name of the surviving husband or wife or personal representative of the deceased person for and on behalf of the surviving husband or wife, children or parents, or if none of these survive, on behalf of the decedent's estate.' A.R.S. § 12-612.
Though the motion to dismiss the Hilligoss complaint was resisted by her counsel at the beginning of the trial, when the case was finally submitted to the jury, plaintiff Hilligoss abandoned her position and made no objection to instructions which informed the jury that recovery should be allowed only for the widow and the natural children of the deceased. The instructions would not permit any recovery for Mrs. Hilligoss or her children by another father. The verdict rendered was in favor of '* * * plaintiff, Esther R. Kahn, as surviving widow of Manuel S. Kahn, deceased, and for and on behalf of Terry, Richard and Tamara Kahn * * * in the sum of $65,000.00.'
Rule 9(a) Rules of Civil Procedure, 16 A.R.S. provides:
(Emphasis added)
There was no averment in Allan Arthur Transportation's answer or in any other pleading raising an issue as to the capacity of the plaintiff Hilligoss to sue. With full discovery being allowed to parties under modern rules of procedure, matters of this kind should be raised prior to trial, particularly when a jury trial is scheduled, as was done in Baxter v. Harrison, 83 Ariz. 354, 321 P.2d 1019 (1958). In the Baxter case, the lack of plaintiff's capacity to sue was raised by a motion for summary judgment, even though the defense had not been raised in the answer. Both the trial and the appellant court treated the motion for summary judgment as being a satisfactory compliance with Rule 9(a), supra.
However, in the instant case, we have this defense handed to the trial judge in the midst of a jury trial. While the trial court in its discretion might have regarded the motion to dismiss as a motion to amend, it was not required to do so, and in view of the lateness of the hour was fully justified in treating the motion as it did. No substantial prejudice resulted to the appellants in any event. The inconvenience of having one additional counsel appearing in opposition during the trial is a small price to pay for the failure to bring this matter to the trial court's attention at an earlier time.
The second assignment of error pertains to the refusal of the trial court to direct a verdict in favor of the defendant Allan Arthur Transportation. The contention here is that there was no evidence from which the jury could rightfully find that Allan Arthur Transportation was negligent or that any negligence on its part was the proximate cause of the accident.
This assignment is inextricably related with other assignments of error pertaining to instructions either given or refused by the court pertaining to specific sections of our highway code.
One of the instructions given (Kahn's No. 19), over appellants' objection that there was no evidence to support such an instruction, was one which contained the following language from A.R.S. § 28-871:
'Upon any highway outside of a business or residence district no person shall stop, park...
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