A. J. KEEN and NINA I. KEEN, Husband and Wife, Doing Business Under the Name of KEEN'S FLOWER SHOP, Also Under the Name of KEEN'S NURSERY AND FLOWER SHOP, Also Under the Name of KEEN'S WESTWARD HO FLOWER SHOP, Appellants,
JAMES R. CLARKSON, Appellee
APPEAL from a Judgment of the Superior Court of the County of Maricopa. G. A. Rodgers, Judge. Judgment affirmed.
Mr. Henderson Stockton, Mr. Eli Gorodezky, Mr. S. N. Karam and Mr. J. W. Cherry, Jr., for Appellants.
Messrs. Cox & Hibbert and Mr. A. Y. Moore, for Appellee.
[56 Ariz. 439] ROSS, C.J.
The defendants A. J. Keen and Nina I. Keen, the proprietors of flower shops located in Phoenix, Arizona, in response to an order from a customer in the town of Florence, Arizona, for flowers for a funeral, on June 23, 1938, sent their Dodge motor truck to deliver the desired floral pieces and on the return trip, at about 1:30 the following morning, some two miles north of Chandler on the Mesa-Chandler [56 Ariz. 440] highway, such truck collided with plaintiff Clarkson's convertible Ford coupe and injured plaintiff, for which he brought this action and recovered a verdict and judgment for $5,000. The defendants have appealed.
Max Lough was in charge of the truck on the trip and was its driver. There went along with him, with the defendants' knowledge and permission, his fiancee, Nita McElhaney (who later became his wife), and it was she who was driving when the injury to plaintiff occurred. It is claimed by defendants that Lough had no right to let or permit Nita to take the wheel and that they are not liable for any injury occurring to a third party while she was driving.
The ultimate facts, as shown by the evidence, are as follows: Nita McElhaney was a sister-in-law of Nina I. Keen's and had lived with the Keens for some eleven years. She assisted around the shops and did floral piece work. It is not shown that she was paid regular wages but she was
given a home with the Keens and they gave her money when she needed it. Defendant A. J. Keen was asked whether she was in his employ and he said "Yes." Nina I. Keen said that Nita very often drove her personal car and delivered flowers and that she always helped around the shops when she could. Nita had driven automobiles for eleven years. Both the Keens testified that they had forbidden her to drive the truck and Lough said he had been instructed not to let anyone drive the truck on the trip. Lough's regular work was that of florist. The regular driver had been dispensed with on account of the slowness of business during the summer months and Lough was looking after the delivery of the Florence order.
Before leaving Florence for Phoenix, Lough and Nita had a Scotch whisky and soda. They then [56 Ariz. 441] drove to Coolidge where they had dinner and proceeded thence homeward along about 10 or 10:30 P.M. When about five miles south of Chandler, Lough grew tired and asked Nita to drive. She had driven some seven miles when they came upon plaintiff's car, virtually at a standstill, on the right side of the road near the edge of the pavement. Plaintiff was in his car at the wheel and his companion, Robert E. Harvey, according to plaintiff's testimony, was on the right side pushing on the right door to get the car off the road when defendants' car ran into them.
According to defendants' testimony, when Nita saw plaintiff's car ahead of her, headed in the some direction, she applied the brakes, slowed down intending to pass on the left but Harvey at that instant stepped from behind plaintiff's car, which he was pushing, onto the highway in front of her and to avoid striking him she swerved to the right intending to pass on that side and in doing so hit plaintiff's car.
The complaint charged acts of negligence on the part of the defendants in driving at too great a speed, in failure to keep a lookout for traffic and for failure to apply the brakes quickly enough after the discovery of the plaintiff's automobile.
At the close of the evidence, the defendants moved for a directed verdict on the grounds that the driver of their truck at the time of the collision had no authority to drive it; that she was not their agent or servant; that she was not in the discharge of any duty she had been employed to perform, and that Lough, the driver of the truck, had been instructed not to let anyone drive it. The denial of this request by the court is assigned as error.
The question has not been before us until now but it is not new in other jurisdictions. We have, when the question of the liability of the owner of an automobile for damages due to its negligent operation [56 Ariz. 442] has arisen, insisted that the person at the time in charge of the automobile should be the agent or servant of the owner, using the car in his employer's business and not for the driver's business or pleasure. Otero v. Soto,34 Ariz. 87, ...