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Kalaf v. Assyd

Supreme Court of Arizona

November 16, 1942

STANLEY KALAF, by His Guardian Ad Litem, M. KALAF, Appellant,
v.
GEORGE ASSYD, by His Guardian Ad Litem, JOSEPH ASSYD, and JOSEPH ASSYD, His Father, Appellees

APPEAL from a judgment of the Superior Court of the County of Pinal. Arthur T. LaPrade, Judge. Judgment reversed and cause remanded with instructions to grant a new trial.

Messrs. Townsend, Jenckes & Wildman, for Appellant.

Messrs. Rawlins & Rawlins, for Appellees.

OPINION

[60 Ariz. 34] ROSS, J.

This is an action by Stanley Kalaf, a minor, brought by his guardian ad litem M. Kalaf, to recover damages he alleges he sustained in an accident at Superior, Pinal County, Arizona, on February 5, 1940, in a collision between the automobile in which he was riding and another automobile.

At the time he was an employee of defendant Joseph Assyd in and about the latter's general store, and George Assyd, a minor son of Joseph, with the knowledge and consent of the said Joseph, took the latter's store delivery truck to go to a school building located in Superior, with the intention that plaintiff, who accompanied him, would drive the truck back to the store. On their way to such school building, George Assyd was driving the truck and plaintiff occupied the seat beside him. At the intersection of Porphyry Street and Lobb Avenue, and while George was driving, the delivery truck ran into a Buick sedan and as a result thereof, it is alleged, plaintiff sustained numerous injuries in and about his mouth, face and head. The negligence alleged is:

"That... the said George Assyd so carelessly and negligently operated, ran, and controlled said automobile truck at a high rate of speed, that it ran into and against a 1938 Buick automobile sedan which was being driven by one Marco Cagalj, thereby throwing the plaintiff... against the inside of the said automobile truck with great force and violence, causing the injuries hereinafter described."

The defendants' answer was a general denial. A jury trial resulted in a verdict in favor of defendants, upon which judgment was duly entered. The [60 Ariz. 35] plaintiff thereupon made a motion for a new trial on the grounds (1) That the plaintiff's evidence of the defendants' negligence is undisputed and (2) that it shows he is entitled to damages in some amount. This motion was denied. Plaintiff appealed.

The defendants insist that the assignments of error are insufficient to present any question for our consideration. Such assignments read:

"I. The trial jury erred in returning a general verdict in favor of the appellees and against appellant for the reason that

Page 1037

the evidence is undisputed that appellant was injured, and the appellees were guilty of negligence which was the proximate cause of appellant's injuries.

"II. The trial court erred in rendering and entering judgment in favor of appellees and against appellant on the verdict of the jury for the reasons set forth in Assignment of Error I.

"III. The trial court erred in denying appellant's motion for a new trial for reasons set forth in ...


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