Schmidt v. Gibbons
| Decision Date | 28 September 1966 |
| Docket Number | No. 7181,7181 |
| Citation | 418 P.2d 378,101 Ariz. 222 |
| Parties | Florence SCHMIDT, surviving spouse of Frank J. Schmidt, deceased, Individually and for and on Behalf of Gail Schmidt, surviving daughter of Frank j. Schmidt, deceased, Appellant, v. J. L. GIBBONS and Frances Gibbons, his wife, dba Arizona Cement Transportation Company, and William E. Eisele and Irene Eisele, his wife, Appellees. P.R. |
| Court | Arizona Supreme Court |
Belli, Ashe, Gerry & Ellison, San Francisco, Cal., Cordova, Goss & Mariscal, Phoenix, for appellant.
Fennemore, Craig, Allen & McClennen, Phoenix, for appellees.
American Trial Lawyers Association as amicus curiae.
This is a wrongful death action brought by the surviving spouse and daughter of Frank J. Schmidt, deceased. The cause of death was an automobile accident in which the decedent crashed into the rear end of a truck owned by the defendant (appellee herein) which was parked on the highway. Judgment was for the defendant and the plaintiff appealed. The Court of Appeals affirmed the trial court's judgment in 3 Ariz.App. 147, 412 P.2d 716, and we subsequently granted the petition for review.
The issues presented to this Court involve the determination of two questions. The first involves an allegedly erroneous instruction of the law of contributory negligence. The instruction given over plaintiff's objection is as follows:
'I instruct you that the driver of an automobile at night is negligent if he collides with an object which he has failed to see, and which an ordinarily prudent driver, under like circumstances, would have seen and with reasonable care could have avoided.
'If you find that plaintiff's decedent, Frank J. Schmidt, negligently failed to control his vehicle, and negligently failed to see the defendant's truck and trailer, and that this negligence proximately caused or proximately contributed to the cause of his death, Then the plaintiff is not entitled to recover.' (Emphasis supplied)
Plaintiff contends that this instruction violates the Arizona Constitution, Art. 18, § 5, A.R.S. which reads as follows:
'The defense of contributory negligence or assumption of risk shall, in all cases whatsoever, be a question of fact, and shall, at all times, be left to the jury.'
The interpretation of this constitutional provision was considered in Layton v. Rocha, 90 Ariz. 369, 370, 368 P.2d 444, 445 (1962):
'Even though the undisputed evidence shows that plaintiff's negligence did as a fact contribute to the injury the jury may find in favor of the plaintiff and this court cannot direct a new trial.'
We further stated therein that a mandatory 'must' instruction is in violation of the foregoing constitutional provision. We subsequently condemned instructions which directed the jury that if they found that the plaintiff was guilty of contributory negligence and this negligence was a proximate cause of his injury Then:
'You are instructed to find in favor of the defendants.' Coyner Crop Dusters v. Marsh, 91 Ariz. 371, 374, 372 P.2d 708, 710 (1962).
'It is your sworn duty to return a verdict for the defendants.' Coyner Crop Dusters v. Marsh, 91 Ariz. 371, 374, 372 P.2d 708, 710 (1962).
'(The plaintiff) may not recover from another for injury suffered.' Trojanovich v. Marshall, 95 Ariz. 145, 146, 388 P.2d 149, 150 (1963).
'The plaintiff cannot recover in this case.' Trojanovich v. Marshall, 95 Ariz. 145, 146, 388 P.2d 149, 150 (1963).
The instruction given in this case contained the phrase 'the plaintiff is not entitled to recover.' To entitle, defined by Webster, is 'to give a right or legal title to.' Webster's New Int'l., 2d ed., at 854. Thus, as the instruction stated that the plaintiff 'is not entitled (has no legal right) to recover' upon a finding of contributory negligence, the jury is effectually bound to find for the defendant upon a finding of contributory negligence. Therefore, this instruction suffers from the same defect as those above condemned.
The plaintiff also contends that the trial judge erred in allowing Officer Raymond to testify that the plaintiff's decedent was traveling 86 miles per hour just before impact. Officer Raymond based his opinion upon the assumed fact that the plaintiff's decedent was going 60 miles per hour at the time of impact.
Officer Raymond testified on behalf of the defendant and was asked the following hypothetical question:
'I want you to further...
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Salt River Project Agr. Imp. and Power Dist. v. Westinghouse Elec. Corp.
...Co. v. Lueck, 111 Ariz. 560, 573, 535 P.2d 599, 612 (1975). "[P]laintiff is not entitled to recover." Schmidt v. Gibbons, 101 Ariz. 222, 223, 418 P.2d 378, 379 (1966). (Emphasis in original.) "[P]laintiff cannot recover in this case." Trojanovich v. Marshall, 95 Ariz. 145, 147, 388 P.2d 149......
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Nash v. Cosby
...Buckler v. Commonwealth, 541 S.W.2d 935 (Ky.1976); Schmidt v. Gibbons, 3 Ariz.App. 147, 412 P.2d 716, vacated on other grounds, 101 Ariz. 222, 418 P.2d 378 (1966); Missouri Pac. R.R. v. Sorrells, 201 Ark. 748, 146 S.W.2d 704 (1941); Holstein v. Quality Excelsior Coal Co., 230 Ark. 758, 324 ......
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Kelch v. Courson
...P.2d 149 (1963). We assume, without deciding, that the instruction given violates the holding of our Supreme Court in Schmidt v. Gibbons, 101 Ariz. 222, 418 P.2d 378 (1966). 5 However, to the extent this instruction may violate the holding of Schmidt, which gave further articulation to the ......
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Bland v. Bock
...103 Ariz. 217, 439 P.2d 489, 496 (1968). The italicized verbiage is the very same as that struck down in Schmidt v. Gibbons, 101 Ariz. 222, 224, 418 P.2d 378, 380 (1966), because it suffers '* * * from the same defect * * *' as the other compulsory instructions excised under the aegis of La......