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Silva v. Traver

Supreme Court of Arizona

October 15, 1945

AARON S. SILVA, Jr., a Minor, by Aaron S. Silva, His Guardian Ad Litem, Appellant,
v.
L. E. TRAVER, Appellee, and VERNON W. SILVA, a Minor, by Aaron S. Silva, His Guardian Ad Litem, Appellant,
v.
L. E. TRAVER, Appellee

APPEAL from a judgment of the Superior Court of the County of Maricopa. Arthur T. LaPrade, Judge.

Judgment affirmed.

Mr. A. Y. Moore, for Appellant.

Messrs. Ellinwood & Ross, and Mr. Jos. S. Jenckes, Jr., for Appellee.

Lyons, Superior Judge. Morgan, J., and Russell, Superior Judge, concur. Note: Chief Justice R. C. STANFORD and Justice ARTHUR T. LaPRADE having disqualified themselves, the Honorable JOHN D. LYONS, Jr., Judge of the Superior Court of Pima County, and the Honorable H. L. RUSSELL, Judge of the Superior Court of Coconino County, were called to sit in their stead.

OPINION

Page 616

[63 Ariz. 366] Lyons, Superior Judge.

Appellants, Aaron S. Silva, Jr., and Vernon W. Silva, minors, by their common guardian ad litem, Aaron S. Silva, brought their separate actions against one V. M. Scott and the appellee, L. E. Traver, for damages for personal injuries sustained by the appellants in a collision between a spring-cycle occupied by them and an automobile driven by Scott and admittedly owned by the appellee. In each case it was alleged that at the time of the collision Scott was an employee of the appellee and regularly engaged in the performance of his duties as such.

The two actions were consolidated for trial and tried to a jury. At the close of the evidence the appellee moved for an instructed verdict in his favor in each case for failure of any evidence to show that at the time of the accident the defendant driver was acting within the scope of his said employment by the appellee. The motion was granted and verdicts in favor of the appellee were instructed in each case. The cases against the defendant Scott were submitted to the jury which returned verdicts for the appellants in each instance. From the orders instructing verdicts for the appellee, Traver, the appellants have appealed to this court.

The record of the evidence is before us on an amended statement of facts. Appellee suggests that the method of appeal by a statement of facts under Article 2, Chapter 22, Arizona Code Annotated, 1939, [63 Ariz. 367] has been superseded by the method set forth in Sections 21-1820 and 21-1821, Arizona Code Annotated, 1939 (Rules 75(b) and 75(c) of the Rules of Civil Procedure); but in the absence of any citations of authority or extended argument we do not now decide that question. So far as material to this decision, the amended statement of facts is as follows:

"The evidence on the question of whether or not the defendant Scott was engaged in the duties of his employment for the Defendant Traver was in substance as follows:

"Both of the defendants admitted that Scott was in the employ of Traver and had been for several months as an attendant at Travers Oil Station, located at 16th Street and Indian School Road, which is a short distance south of the scene of the collision, and that Scott's hours of employment were not regular, but that he closed the station on the evening of the collision at about the hour of 8:00 P. M.

"After closing the station, he drove Traver's automobile and took the money, receipts of the day and went to Traver's home, which is located between the Oil Station and the place where the collision occurred. He stopped the car at Traver's home, went in, turned over the receipts of the day to Traver; that he then requested Traver to permit him, Scott, to use Traver's automobile and take it home with him, keep it over night, so that he could use it the next morning to go to Phoenix to do some shopping for himself; that Traver consented for him to use the automobile for such purpose and Scott ...


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