APPEAL from a judgment of the Superior Court of the County of Maricopa. Howard C. Speakman, Judge.
Judgment reversed with instructions.
Messrs. Struckmeyer & Struckmeyer, for Appellant.
Messrs. Lyle & Perry, of Gallup, New Mexico, and Messrs. Hill, Robert & Hill, of Phoenix, Arizona, for Appellees.
Stanford, C. J. LaPrade, J., concurs. Morgan, J. (dissenting).
Stanford, C. J.
[62 Ariz. 262] Virgil Smith and Elizabeth Smith, husband and wife, the appellees herein, were the plaintiffs in the trial court. We shall, in this case, term them the plaintiffs, and Mollie DeGraff the defendant.
The defendant, Mollie DeGraff, a resident of Colorado, was engaged in the business of buying, selling, warehousing and wholesaling fresh fruits, vegetables and other commodities, and transporting them over the highways of Arizona to the State of Colorado. Defendant carried on such transportation by means of a Ford truck. Lloyd P. Mundee and Ralph Bird operated said truck for defendant.
On the night of August 13, 1941, at about 2:30 A. M., Mundee and Bird were going east on highway 66 in the northern part of Arizona, and while between Ashfork and Williams stopped the truck on the right hand side of the highway because of a broken axle. Before the two servants of the defendant could place flares upon the highway indicating that the truck had stopped, the car of plaintiffs, going in the same direction, ran into and against the unlighted truck injuring the plaintiffs, and plaintiffs brought their action in the superior court for damages.
In addition to the defendant, Mollie DeGraff, plaintiffs made a party to the action Lloyd P. Mundee, who was driving the truck at the time of the accident.
[62 Ariz. 263] After the evidence was submitted, and before arguments of counsel and instructions of the court were given, and before submission of the case to the jury, plaintiffs moved for a dismissal of the action against Mundee. The transcript of evidence in that respect shows the following:
"Mr. Perry: At this time the plaintiffs dismiss their complaint as to the defendant Lloyd Mundee.
"The Court: Do I understand that the plaintiffs at this time move to dismiss as to Lloyd Mundee, each of the three causes of action as to the defendant Mundee?
"Mr. Perry: That is correct.
"Mr. Struckmeyer: That, of course, with prejudice?
"Mr. Perry: I assume if we lose we couldn't sue a joint tort feasor if we lose against one. If we win we wouldn't sue him, so it would be with prejudice."
The complaint was brought on three causes of action, each alleging different damages. The verdict of the jury was on the second cause of action, which alleged injuries to plaintiff, Elizabeth Smith, and was for the sum of $ 2,000.
Before entry of judgment on the verdict rendered, defendant DeGraff filed a motion for judgment notwithstanding the verdict on the grounds that she could be held only on the theory of respondeat superior and the dismissal with prejudice of Lloyd Mundee, her servant, operated as a bar to the
verdict and is res judicata as to the negligence of the defendant DeGraff. Also a motion for new trial was filed by defendant DeGraff, and each of the motions having been overruled, the defendant DeGraff has appealed and assigns as error (1) that the dismissal with prejudice of the defendant Mundee bars the recovery against his principal, the defendant herein; (2) that the plaintiffs could not recover because the evidence and the whole thereof shows that the plaintiffs' negligence was the proximate cause of the accident or collision.
[62 Ariz. 264] It is contended by the plaintiffs as follows:
"The voluntary dismissal by the plaintiffs as to the defendant Mundee and the judgment rendered in his favor thereon had no affect on appellees' right to obtain judgment against the appellant Mollie DeGraff.
"The question of contributory negligence is one of law and fact to be determined by the jury and the court is bound by ...