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Buehman v. Smelker

Supreme Court of Arizona

June 1, 1937

HARRY BUEHMAN, Appellant,
v.
BARBARA SMELKER and VAN A. SMELKER, Appellees

APPEAL from a judgment of the Superior Court of the County of Pima. William G. Hall, Judge. Judgment reversed and cause remanded for a new trial.

Messrs. Darnell, Pattee & Robertson, for Appellant.

Messrs. Conner & Jones, for Appellees.

OPINION

Page 947

[50 Ariz. 20] ROSS, J.

Harry Buehman brought this action against Van A. Smelker and his daughter Barbara Smelker for damages for personal injuries received in a collision of his automobile with that of Van A. Smelker's at the intersection of Mountain Avenue with East Speedway in the city of Tucson, Arizona, on November 7, 1934.

Plaintiff's automobile was a 1925 Ford, model T, Roadster, and besides himself, who was driving, it was occupied at the time by two companions. The other automobile, a Studebaker sedan, was the family car of defendant Van A. Smelker and was being driven by Barbara, his 17 year old daughter, who at the time was its only occupant. The two streets cross each other at right angles, the direction of Mountain Avenue being north and south and East Speedway east and west. Plaintiff was driving north on Mountain Avenue and defendant Barbara Smelker was driving east on East Speedway at the time of the collision.

[50 Ariz. 21] The complaint, filed May 1, 1935, alleged:

"V. That... plaintiff was driving... in a southerly direction.... That after the plaintiff had entered said intersection the defendant Barbara Smelker, driving said Studebaker sedan automobile drove westerly along Speedway at a high and dangerous rate of speed in excess of twenty-five miles per hour...."

"VII. That immediately upon the happening of said accident and collision the said Barbara Smelker drove away without stopping to render assistance to the plaintiff and without stopping to ascertain whether any damage had been done."

Thereafter, on May 24, 1935, an amended complaint was filed, which omitted the quoted paragraph VII, and immediately before the trial the amended complaint was amended by interlineation to show plaintiff was traveling in a "northerly" direction instead of a southerly direction as alleged, and that defendant's "speed was in excess of thirty-five miles" instead of twenty-five as alleged in the complaint and amended complaint.

Defendants' answer consisted of a general denial and a plea of contributory negligence.

A trial before a jury resulted in a verdict for defendants, and a judgment was duly rendered thereon. The plaintiff has appealed.

The assignments present but three questions, to wit: (1) As to whether the defendants' counsel were guilty of misconduct in repeatedly asking witnesses for their conclusions "upon the very matter at issue," when counsel must have known the questions were incompetent; (2) as to whether the court committed error in admitting in

Page 948

evidence the original complaint and permitting defendants to read to the jury therefrom the allegation that defendants' car was traveling "southerly" at a speed in excess of twenty-five miles, and that defendant Barbara Smelker "drove away without [50 Ariz. 22] stopping to render assistance to the plaintiff and without stopping to ascertain whether any damage had been done," because such statements and the pleading containing them had been superseded by the amended complaint from which they were omitted, and because such statements were not admissions against interest, not admissible as impeachment, nor could they be used for that purpose, no foundation having been laid, and because such abandoned statements had no bearing upon the issues and were immaterial and prejudicial to plaintiff, and finally because such superseded complaint was not verified or signed by plaintiff and its contents were unknown to him, it having been prepared by his attorneys in his absence from Tucson; and (3) as to whether the court erred in two of its ...


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