West v. Soto

• Decision Date: 04 March 1959
• Docket Number: No. 6341,6341
• Citation: 336 P.2d 153,85 Ariz. 255
• Parties: Louis B. WEST, Appellant, v. Gilbert SOTO and Joan Soto, husband and wife, Appellees.
• Court: Arizona Supreme Court

Page 153

336 P.2d 153

85 Ariz. 255

Louis B. WEST, Appellant, v. Gilbert SOTO and Joan Soto, husband and wife, Appellees.

No. 6341.

Supreme Court of Arizona.

March 4, 1959.

Darnell, Holesapple, McFall & Spaid, and Richard R. Fish, Tucson, for appellant.

Nasib Karam, and James D. Hathaway, Nogales, for appellees.

PHELPS, Chief Justice.

This is an appeal by Louis B. West, appellant, from an adverse judgment of the superior court of Santa Cruz county. The parties in the trial court were Gilbert Soto and Joan Soto, husband and wife, plaintiffs, and Joseph Duward Mayne, Harvey Richards and Louis B. West, defendants. At the conclusion of the trial a judgment was entered upon the verdict against Mayne, Richards and West. Thereafter this appeal was filed by West only and was duty perfected. The judgment in its full amount became final against Mayne and Richards.

From the evidence it appears that Mayne worked for the Service Life Insurance Company out of the Huachuca Vista office. There were two other representatives of the same company in the Huachuca area, but Mayne was the district supervisor. Defendant Richards is one of the representatives. Mayne's territory includes all of the State of Arizona but he concentrated on the Huachuca area and the farthest away from there that he had made a sale was in Tombstone. At the time of the accident Mayne was living at the Huachuca Vista Motel, which was also serving as his business office.

In the afternoon on the 5th day of August, 1955, Mr. West, the state manager for the above-mentioned insurance company, 'was down from Phoenix.' Mayne, Richards, and West discussed business for approximately three hours at the Huachuca Vista Motel. During the discussion they each consumed approximately four vodka and orange juice highballs. After the business, 'was all taken care of,' 'Nogales was brought up' and West mentioned that he had never seen Nogales. Mayne said, 'I'll take you over, and go over on a sightseeing tour.' Since Mayne had volunteered the three defendants used Mayne's car, and Mayne was driving when they left Huachuca Vista for Nogales at approximately 3 or 4 p. m. En route, defendants consumed more intoxicating liquor at Sonoita or Patagonia.

Near the Nogales airport, the defendants were stopped by six servicemen from Fort Huachuca, who had noticed the erratic driving of the defendants' automobile while following them for a considerable distance in their own car. Three of these servicemen testified at the trial. Their testimony was to the effect that all of the defendants were very drunk. Bridges testified that Mayne had vomited on himself and looked very sleepy. He could hardly talk and it was difficult to understand anything he said. Richards tried to walk around the car and fell down. West remained in the car and shook his head (indicating no) when the servicemen offered to drive the car for them. One of the servicemen testified that Richards was driving the car when they had signaled it to stop. He said Richards and Mayne changed position when they stopped the car at the time the servicemen tried to persuade defendants to let them drive their car into Nogales. The other two witnesses said that Mayne was driving. The servicemen got out of their car and offered to drive defendants' car to Nogales for them since they were in no condition to drive. Mayne, Richards and West all refused to let them drive. Zussman testified that all the defendants agreed that, 'we can make it, we're o.k.' West, sitting in the middle of the front seat was more or less wisecracking. He said, 'we're o.k., we can make it.'

Defendants' car, with Mayne driving, weaving from one side of the highway to the other, then proceeded toward Nogales. Approximately three miles from where defendants were stopped, Mayne negligently drove his car onto the wrong side of the road and collided with Joan Soto, plaintiff as she was proceeding in the opposite direction in her car. The collision injured Joan Soto and damaged both cars.

Following the accident, Mayne was placed under arrest by a highway patrolman. He was taken by the patrolman to the sheriff's office in Nogales. Richards and West were allowed to accompany Mayne to the sheriff's office.

A justice of the peace came to the sheriff's office and read the citation to Mayne and asked for his plea as to operating a motor vehicle while under the influence of alcohol, Mayne plead, 'guilty'. Richards and West asked the judge if he could hold that plea until they talked to Mayne. West said, 'Your Honor, we are in this together. I think we have a right to vote on it.' The Judge gave them five minutes. The three defendants then had a conversation. West said, 'we are in this together. If you want us to stick by you forget that guilty plea. You are drunk. We are not drunk. Let them prove it to us.' Richards said to Mayne 'what are you, out of you mind? They can't prove we are drunk if they give us a test we will refuse. We have that right.' West said, 'if you still insist on guilty you are on your own.' Mayne then said he was going to plead 'not guilty' but later when he was before the judge he again entered a plea of guilty. The other defendants had some additional conversation with Mayne at that time, but they gave up and the guilty plea was allowed to stand.

Based on the above facts the jury returned a verdivt for the plaintiffs against Mayne, West and Richards and as stated before only West has appealed.

West in his first assignment of error contends that the trial court erred in denying his motion for a directed verdict in his favor in that plaintiffs, as a matter of law, had wholly failed to show by any competent evidence that defendant West was either personally negligent or was chargeable with the negligence of Mr. Mayne, for the reason that the evidence construed most favorably to the plaintiffs, is insufficient as a matter of law, (a) to prove that defendant West was under any legal duty to plaintiffs, (b) to prove that defendant West breached any such duty, or (c) to show that any legal relationship existed between defendant Mayne and defendant West, whereby defendant West would become liable for the negligence of defendant Mayne, and more particularly, that plaintiffs have failed to prove that the defendants West and Mayne were parties to a joint venture.

This assignment of error raised two questions, (1) does the evidence show that West is liable to plaintiffs because of his own personal negligence and (2) does the evidence show West is liable to plaintiffs by reason of the fact that the defendants were engaged in a joint venture so that Mayne's negligence is imputed to West.

We will first discuss the question of whether West was personally guilty of any negligent act toward plaintiffs. The question of imputed negligence will be discussed later. Here we are concerned only with the question of whether defendant West was personally negligent.

There is no question that Mayne was negligent in driving the car. The evidence clearly shows West was drunk while riding in the car with Mayne and Richards who were also drunk. Does this make West guilty of negligence toward plaintiff? West by riding with a drunk driver was guilty of contributory negligence as between himself and the driver and therefore he would be barred from recovery as against the driver. Restatement Of The Law Of Torts, § 463. The mere fact however that West was drunk while riding in the car does not make him guilty of negligence toward the plaintiffs. Though West was careless of his own safety, he was not negligent towards plaintiffs because he owed them no duty.

Plaintiffs rely heavily upon the case of Franco v. Vakares, 35 Ariz. 309, 277 P. 812, 814. The case is not in point. In that case defendant Franco and a friend were riding around Tucson in the defendant's car. They came upon two mutual friends, one of whom was Salgado (plaintiffs' intestate). Defendant stopped, the friends got in. They had not proceeded far when Salgado produced a bottle of whiskey from which they all drank. All of them, apparently, became drunk but continued to drive aimlessly, singing et cetera, following first one suggestion and then another. In the course of this activity the defendant ran his car head-on into a street car killing Salgado. His administrator, Vakares, brought suit against the driver, Franco, and the case was submitted to the jury which returned a verdict for the deceased's estate and against the defendant driver. The case had been submitted to the jury with an instruction on the issue of the deceased's contributory negligence.

The court said in part:

'We think the court should have granted defendant's motion for a directed verdict at the close of the case on the ground that the evidence conclusively and without conflict showed that the plaintiff's intestate was guilty of independent negligence. * * *'

The court denominated Salgado's act as independent negligence. Apparently the court meant that Salgado, by his own act was independently negligent, that is, he was personally negligent, not negligent by reason of the...