WILL McCLURE, Administrator of the Estate of RALPH GILLILAND, Deceased, Appellant,
ZELLA V. JOHNSON, by P.J. WHITE, Her Guardian Ad Litem, Appellee (3803); WILL McCLURE, Administrator of the Estate of RALPH GILLILAND, Deceased, Appellant,
ALICE LEE JOHNSON, by P.J. WHITE, Her Guardian Ad Litem, Appellee (3804); WILL McCLURE, Administrator of the Estate of RALPH GILLILAND, Deceased, Appellant,
ORVILLE JOHNSON and MARGUERITE JOHNSON, Husband and Wife, Appellees (3805). (Consolidated.)
APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Judgment reversed and cause remanded with instructions.
Messrs. Sloan, Scott & Green, for Appellant.
Messrs. Cox & Moore, for Appellees.
[50 Ariz. 78] LOCKWOOD, J.
These cases arose out of an automobile accident which occurred near Phoenix, Arizona, on February 20, 1935. The actions were consolidated and tried to a jury in the superior court, which returned three separate verdicts in favor of the various plaintiffs. Since the facts and the legal issues involved are the same in all of the cases, except as to the damages allowed for the injuries to the respective plaintiffs, we shall discuss the three cases as though they were one.
The facts of the case, taken as strongly in support of the verdict as the evidence reasonably justifies, [50 Ariz. 79] may be stated as follows: Prior to February 16, 1935, Ralph Gilliland, hereinafter called decedent, who was then a resident of southwestern Missouri, decided to remove with his family to California. Orville Johnson, one of the plaintiffs herein and a friend of decedent of several years standing, learned of this fact and entered into an agreement with decedent whereby he, in consideration of $20 to be paid by Johnson, agreed to transport the latter and his family from Missouri to California in decedent's automobile. The two families left Missouri on February 16th in decedent's
car. Those constituting the party were decedent, his wife, and three minor children, and Johnson, his wife, and their two minor children. The party arrived in Phoenix the night of February 19th, and remaining there overnight, arose early in the morning of the 20th and resumed their journey to California, via the Wickenburg highway. Decedent and Johnson had alternated in driving the car during the trip, but from Phoenix up to the time of the accident it was driven by decedent. Somewhere between Marinette and Mountain View Service Station, a short distance south of Wickenburg, the car driven by decedent came into a collision with a truck, as a result of which decedent was so seriously injured that he died a few minutes after the wreck, while all of the other passengers received more or less serious injury. These suits were filed on September 27, 1935. The material allegations of the complaint in case No. 42413, which is substantially similar to the complaints in the other cases except so far as the extent of the injury complained of is concerned, read as follows:
"II That heretofore, to-wit, On or about the 15th day of February, 1935, defendant's decedent Ralph Gilliland was the owner of a certain Chrysler sedan automobile motor #R-258195, and on or about said February 15, 1935, in the City of Republic, in Green [50 Ariz. 80] County, Missouri, the defendant's decedent Ralph Gilliland entered into an oral agreement with the plaintiff herein through her father and mother, wherein and whereby for a valuable consideration the defendant's decedent Ralph Gilliland agreed to safely transport and carry the plaintiff from the said town of Republic, Green County, Missouri, to the town of Anaheim, in the State of California.
"III That on or about said date, to-wit: February 15, 1935, pursuant to the said agreement, defendant's deceased Ralph Gilliland received the above named plaintiff in his said Chrysler sedan automobile for the purpose of safely conveying and transporting her therein from Republic in Green County, Missouri, to the town of Anaheim, in the State of California.
"IV That defendant's decedent did not fulfill his agreement to safely and carefully transport plaintiff and deliver her in said town of Anaheim, California, but on the contrary while en route from Republic, Green County, Missouri, to Anaheim, California, on the 20th day of February, 1935, at a point approximately twenty (20) miles northwest of Phoenix, Maricopa County, Arizona, which said point is in Maricopa County, Arizona, defendant's decedent Ralph Gilliland operated his said automobile in which plaintiff was being transported and conveyed as hereinbefore set forth in such a manner and at such a high rate of speed that it collided with a truck being driven on said highway at said point and defendant's decedent's said car overturned and threw plaintiff from said car and seriously and permanently injured the plaintiff. That said accident, collision and injuries to the plaintiff Zella V. Johnson were caused by the negligence of defendant's decedent Ralph Gilliland in that the said decedent while travelling on said highway and driving his automobile at said time and place negligently and carelessly permitted the left wheels of his automobile to travel approximately in the center of said highway when there was approaching him from the opposite direction a large truck which was also travelling with its left wheels in the center of said highway, and at said time and place on said highway there was sufficient room for said decedent to have [50 Ariz. 81] turned his automobile to the right and miss said large truck, but said decedent negligently and carelessly failed to turn his automobile to the right so as to miss said truck and by reason of such negligence and carelessness decedent's said automobile collided with said truck as above set out...."
There are some ten assignments of error which we will consider in accordance with the legal propositions raised thereby. The first question is whether the cause of action declared on survived the death of Ralph Gilliland, which, as we have said, occurred a very few moments after the accident. It is contended on behalf of defendant that this is a tort action and, under the law of Arizona, unless the action is brought before the death of the alleged tort-feasor, the right of action fails. The precise question has never been specifically determined in this state.
We have held in many cases that the common law, except as modified by statute or unsuited to our local system or condition, is still in force in Arizona. Masury & Son v. Bisbee Lumber Co.,49 Ariz. 443, 68 P.2d 679. It is admitted that under that law a cause of action for personal injuries or death based upon a tort did not ...