Spillios v. Green
| Decision Date | 29 June 1983 |
| Docket Number | No. 2,CA-CIV,2 |
| Citation | 671 P.2d 421,137 Ariz. 443 |
| Parties | Themus Andrew SPILLIOS and Ione Madaline Spillios, husband and wife, Defendants/Appellants, v. Griswold K. GREEN, surviving husband of Jeannette W. Green, deceased; Otto Melton Adkins, Jr., and Sheila Kathleen Adkins, husband and wife, Plaintiff/Appellee; Defendants/Appellees. Themus Andrew SPILLIOS and Ione Madaline Spillios, husband and wife, Plaintiffs/Appellants, v. Otto Melton ADKINS, Jr., and Sheila Kathleen Adkins, husband and wife; Griswold K. Green, surviving husband of Jeannette W. Green, deceased, Defendants/Appellees. 4677. |
| Court | Arizona Court of Appeals |
As a result of a multi-vehicle automobile accident, Griswold Green sued Mr. and Mrs. Spillios and Mr. and Mrs. Adkins for the wrongful death of his wife. The Spillioses counterclaimed and in a separate action, sued the Adkinses for personal injuries. The cases were consolidated for trial and a jury awarded Griswold Green $150,000 in damages against the Spillioses, but found in favor of the Adkinses on the Green complaint. The jury also found against the Spillioses on their counterclaim and in favor of the Adkinses on the claim by the Spillioses against them. The Spillioses contend that the court erred in giving certain instructions and in refusing certain instructions. They also contend that the court erred in the order of arguments which it permitted during the summation to the jury and further erred in refusing to allow the Spillioses to argue to the jury the contributory negligence of the deceased, Mrs. Green. We affirm.
The record shows that on the evening of April 17, 1980, Sheila and Mel Adkins were traveling in separate cars southbound on the frontage road of Interstate 17 near Green Valley. Just south of Continental Road, Mr. Adkins, who was driving in front, rolled his Volkswagen, which came to rest on its top in the northbound lane of the frontage road. Mrs. Adkins pulled her vehicle up in the southbound lane, next to and just south of the overturned vehicle. She left the vehicle's lights on and went to check her husband's condition. Shortly thereafter, plaintiff Green, who was proceeding northbound on the frontage road with his wife, collided with both of the Adkins vehicles. His automobile came to a rest straddling the center line of the frontage road. Several other cars arrived on the scene and Mrs. Adkins' vehicle was moved to the righthand side of the southbound lane with her bright lights shining southward. The lights on the Green vehicle were left on with the taillights angling in a southeasterly direction across the road. Mr. Howard Ammeson and his wife approached the scene from the north and he stopped his vehicle abreast of the Green vehicle and left his lights on, shining in a southerly direction. Also arriving at the scene was Mr. Robert Barnes who stopped his van behind the Ammeson vehicle and also left his lights on. By the time all these cars had stopped, the entire roadway was blocked by the Adkins Volkswagen and the Green vehicle.
Shortly after all this occurred, Mr. and Mrs. Green were standing in front of their vehicle when Mr. Barnes first yelled that a car was coming. This was the Spillios vehicle. Mr. Green turned to watch the car approach and after a moment went to the west side of the road very quickly. Mrs. Green went to the door of their car, opened it up and got her purse. Mr. Barnes yelled at her again that a car was coming and to get out of the way. She was walking rapidly away from their car when the Spillios vehicle hit the Green vehicle, knocking it into Mrs. Green and killing her.
Mr. Spillios testified that he and his wife were traveling northbound on the frontage road when they saw a car approaching them with its bright lights on. He was temporarily blinded by the lights of this car and after it passed him and he was recovering from this temporary blindness, he first saw the lights of Mrs. Adkins' vehicle. At that time he did not know that the vehicle was not moving. The lights were on high beam and were blinding him. He blinked several times and he observed the Adkins vehicle blink also but it remained on high beam. Although there was evidence that at least two separate groups of persons were located south of the vehicles waiving at Mr. Spillios to stop, he did not see anything except the bright lights of the Adkins vehicle. He did not see the lights or the emergency flashers of the other vehicles which were also operating. Mr. Spillios first saw the vehicles in the middle of the roadway at about the time he reached the Adkins vehicle. He applied the brakes and skidded into the Green and Adkins vehicles.
After the jury had been instructed and had retired to deliberate, the trial court permitted the parties to make their objections for the record. Apparently there had been some previous off-the-record discussions because counsel for the Spillioses stated during his objections to the instructions:
"I wanted to further object to the limitation of argument as to the acts of Mrs. Green as far as the imputation of negligence from Mr. Green to Mrs. Green insofar as that is the same thing that took place as far as Mr. Spillios' negligence on Ione's claim in this case." (Emphasis added)
Appellants argue that any contributory negligence on the part of Mrs. Green was relevant and a defense to the wrongful death action. We agree.
A.R.S. § 12-611 states:
"When death of a person is caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action to recover damages in respect thereof, then, and in every such case, the person who or the corporation which would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, ..."
Therefore, if a valid affirmative defense would have defeated an action by the decedent had she lived, that same defense can be asserted after death as a complete barrier to recovery under the wrongful death statute. See Herzberg v. White, 49 Ariz. 313, 66 P.2d 253 (1937). If Mrs. Green had lived and sued the Spillioses, contributory negligence would have been a defense. Fernandez v. Romo, 132 Ariz. 447, 646 P.2d 878 (1982) is not applicable to the Greens' action for wrongful death. In Fernandez, the surviving children of Joseph Ashford III and Elizabeth Ashford filed a wrongful death...
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