Sanders v. Brown

• Decision Date: 17 December 1951
• Docket Number: No. 5379,5379
• Citation: 73 Ariz. 116,238 P.2d 941
• Parties: SANDERS v. BROWN.
• Court: Arizona Supreme Court

Page 941

238 P.2d 941

73 Ariz. 116

SANDERS v.BROWN.

No. 5379.

Supreme Court of Arizona.

Dec. 17, 1951.

Rehearing Denied Jan. 16, 1952.

McDaniel, Franks & Powell, of Prescott, Jennings, Strouss, Salmon & Trask, and J. A. Riggins, Jr., all of Phoenix, for appellant.

Byrne & Bryne, of Prescott, for appellee.

UDALL, Chief Justice.

Howard I. Sanders, defendant below, has appealed from a judgment against him in the sum of $4,500.00, rendered by the court sitting without a jury.Plaintiff, William R. Brown, alleged that his injuries were directly and proximately caused by the negligence of defendant in maintaining a gravel pile on the driveway near his home and failing to warn him of it.

In this unique case there is no conflict in the evidence.The only witnesses were the plaintiff and the defendant and the latter's wife.The only issue is whether the trial court properly applied the law to the facts.The rule is well settled that we are not bound by the conclusions of the trial court, but are at liberty to draw our own legal conclusions from the admitted facts.Maricopa County Water Conservation Dist. No. 1 v. Southwest Cotton Co., 39 Ariz. 65, 4 P.2d 369;Mountain States Tel. & Tel. Co. v. Sakrison, 71 Ariz. 219, 225 P.2d 707;Industrial Commission of Arizona v. J. & J. Const. Co., 72 Ariz. 139, 231 P.2d 762;In re Estate of Taylor, 56 Ariz. 211, 106 P.2d 492.

Since 1941the parties have been engaged as equal partners in the credit jewelry business under the firm name of Brown's Credit Jewelers, operating stores in Flagstaff and Prescott, Arizona.Plaintiff is the manager of the Flagstaff store and defendant of the Prescott store.A very friendly relationship existed between the parties and for a number of years it had been the practice when visiting the respective stores to stay at the other's home rather than go to the hotels.This hospitality continued down to and including the date of trial.

Plaintiff and his wife left Flagstaff on Saturday, August 24, 1946, to go to Prescott on one of their periodic visits, arriving at defendant's residence about one-thirty Sunday morning where they spent the remainder of the night.Later that day the partners were driven by Mrs. Brown to their Prescott store where the men spent the afternoon discussing business affairs, returning about nine or nine-thirty, p. m. Monday morning, Mrs. Brown again driving the car, the partners went to the store.That afternoon the partners accompanied by Mrs. Brown drove out to a recreational area some five miles north of Prescott known as the 'Gardens', arriving there about three o'clock.Defendant attended a meeting of the board of directors of the corporation which operated the area, while the plaintiff and his wife went into the bar or cocktail lounge and had a few drinks.According to plaintiff's own admission, from then until midnight he had about thirteen to fifteen 'coke highs'.

When the parties were ready to leave they were unable to locate the keys to their automobile and were driven to the Sanders' home by some friends.(Incidentally the keys were found later in the plaintiff's hip pocket).They started up the dark inclined driveway, Mrs. Brown walking in front and the men walking and talking together when the plaintiff walked into the gravel pile and fell breaking his leg in two places.

To better understand the situation it is essential to describe the premises.Defendant lived at 1603 Oregon Avenue, and the driveway runs from the street, along the west side of the house to the garage in the rear.This was an unsurfaced gravel drive about fifteen or twenty feet wide with a slight incline from the street.The garage was at the end of the driveway some little distance south of a gate leading to the rear entrance of the house.Parallel and immediately adjacent to the west footing of the house was a flower bed with a rock retaining wall and midway of the house on the east side of the driveway there was located a pile of gravel about eighteen inches high and four feet across.It was composed of what is called 'coarse gravel', the largest rocks being about two or two and a half inches in diameter, and it did not interfere with the traffic on the drive.The usual and customary approach to the house was by means of this drive and plaintiff and his wife had never during their visits used the front entrance to the house.

It was testified that the gravel pile 'was not hidden or in a depression or covered or obstructed in any way'.A person with ordinary vision who cared to look could have seen it.While the plaintiff admitted he had normal vision he stoutly maintained that at no time prior to the accident did he see the gravel pile or even know of its existence, yet during the 48-hour period prior to the injury he had been in the front seat of the car four times when it was either driven in or backed out of this driveway.

Plaintiff gave a frank answer to the question propounded by counsel for the defendant as to his sobriety, 'Yes, I was intoxicated'.The defendant corroborated this statement and Mrs. Sanders testified that both men were intoxicated at the time of the accident.

Plaintiff alleged in the complaint filed August 23, 1948 that: 'The injuries suffered by plaintiff as before stated, were directly and proximately caused by the negligence of defendant, (in failing to keep his said premises in a reasonably safe condition, for entry in and upon the same by plaintiff, upon the invitation of defendant.)'

During the trial the court permitted an amendment by striking out the words in parenthesis, above, leaving only a general allegation of negligence.Defendant assigns this as error, contending that he was thereby prejudiced in his defense.Defendant recognizes that amendments should be liberally allowed in the interest of justice and that it is within the discretion of the trial court under all the facts and circumstances of the case whether it should be permitted, but argues that there must be a limit beyond which it cannot go.The amendment allowed did not change the theory of the case, it was still an action for damages based upon the same injury caused by the alleged negligence of the defendant.He did not plead surprise or request a...