WANDA DALORES MAYNARD, by her guardian ad litem, Wm. Maynard, Appellant,
S. H. Hall, Appellee
APPEAL from a judgment of the Superior Court of the County of Maricopa. Arthur T. La Prade, Judge. Judgment reversed and cause remanded for new trial.
Mr. Mark Wilmer, for Appellant.
Mr. Albert W. Gurtler, and Messrs. Laney & Laney, for Appellee.
[61 Ariz. 33] STANFORD, J.
This is an appeal from the Superior Court of Maricopa County. It arises out of an accident which occurred on the morning of the 16th day of January, 1942, while the plaintiff, a girl of the age of approximately ten years, was waiting with several other girls by the roadside at a point about five miles south of Gilbert, Arizona, for a school bus. A cement highway was running north and south at that point and was intersected by a dirt road running at right angles.
A man named Bud Pearson was driving his automobile in a northerly direction along the paved highway at a high rate of speed. As he reached the children at the road crossing he drove off the paved portion of the highway he was traveling and struck the plaintiff, carrying her about 45 feet, his car continuing on 192 feet. By reason of it the child's leg was mangled requiring that the same thereafter be amputated, and she was otherwise injured.
The case was heard before a jury. At the close of the evidence by the appellant herein, who was the plaintiff below, the appellee moved the court for an instructed verdict in favor of the appellee on the grounds:
"That the plaintiff has failed to make out a case of liability on the part of this defendant Hall for the reason that the plaintiff has not shown any such relation of master and servant between S. H. Hall and Bud Pearson as would render S. H. Hall liable; and the further ground that the plaintiff has even failed to show negligence on the part of Bud Pearson."
The trial court, on granting the motion, made the following statement:
[61 Ariz. 34] "Counsel forthe defendant here has made a motion directed to the Court, asking the Court to enter its order directing the jury to bring in a verdict for the defendant, on the ground that the plaintiff has failed to establish agency on the part of Pearson as the employee of Hall, and engaged at the time of the accident in the course of Hall's business, and on the further ground that no evidence of negligence has been established."
The principal contentions of the appellant are that the court erred in disallowing certain statements of two witnesses who came upon the scene just about the time the accident occurred, and they offered testimony as to the statements of Bud Pearson, the driver of the car and the person who is claimed to be the agent of the appellee herein. This testimony was the declaration of Bud Pearson at the scene of the accident and during the excitement of placing the injured child in a car, and was made within a minute and one-half to three minutes after the accident occurred, and was, as we understand from the evidence, his first expression, and the appellant submitted the same as a part of the res gestae.
Appellant also complains that the court erred in denying his request that certain portions of the deposition of the witness, Bud Pearson, who had left the country, be settled in advance of the reading of the deposition in evidence.
The appellee, among many other things, contends that Pearson was driving his own automobile, and that there was no presumption that at the time of the accident he was acting as a servant of appellee, and within the scope of his employment, and that it was incumbent upon the appellant to establish that fact by legally admissible evidence, and that the appellant failed to do, and accordingly the court, at the close of his case, directed a verdict in favor of appellee Hall.
[61 Ariz. 35] The statements by each of the witnesses named, and which are in controversy here, are as follows:
Frank Lindsey testified:
"The Witness: I drove up and stopped, and Sanborn, he jumped out of the car and run down the road to get the car number, and I told this other fellow --
"Mr. Laney: I object to that. That is not the question. What Pearson said? A. Well, Pearson says, 'I am on my way to Gilbert after a trailer.' He says, 'I am working for Slay ...