APPEAL from a judgment of the Superior Court of the County of Maricopa. Dudley W. Windes, Judge.
Mr. Fred V. Moore and Mr. Frank Dykes, for Appellant.
Messrs. Moore, Romley & Roca, for Appellees.
Stanford, C. J. LaPrade and Morgan, JJ., concur.
Stanford, C. J.
[63 Ariz. 525] In this opinion we will hereinafter call the appellant the plaintiff and the appellees the defendants.
Robert L. Steward was an employee of Madison Motors on a commission basis to sell used cars at its lot located at 300 East Van Buren Street, Phoenix. His hours were approximately from 8:30 A. M. to 6 P. M. He could demonstrate the cars being shown, but could not take cars and drive around to find a buyer, but he was permitted to take a car and drive it home at night and back in the morning. Otherwise, on [63 Ariz. 526] account of gasoline rationing, he was not allowed to use the cars for his own personal pleasure or business. Steward lived at 1513 Earll Drive. His usual course home was to go north to Thomas Road, then west to 15th Avenue and then north to Earll Drive. Earll Drive is about four blocks north of Thomas Road, and does not run through in many places. On October 13, 1943, the date of the accident, Steward left the car lot at about 6 o'clock but instead of going directly home he went to visit a lady friend, the visit having no connection with the sale of a car, the location of whose home was on Indianola Avenue south of Indian School Road, almost a mile out the path of travel to his home. Steward took the course of Third Street to go and visit with his friend for about one and one-half hours. When returning, he returned south on Third Street and just before reaching Earll Drive he ran into the plaintiff who was accompanying another person southward while waiting for the street car. Plaintiff was severely injured.
When the evidence was closed Madison and Berge, as the Madison Motors, moved the court for an instructed verdict, which motion was denied. After verdict, which was rendered in favor of plaintiff against Steward, Madison and Berge, the latter two moved for a judgment notwithstanding the verdict. That motion was also denied. The trial court then in relying on the powers invested in it by Sec. 21-1015, Arizona Code Annotated 1939, before the expiration of ten days after the jury was discharged, caused the following minute order to be entered:
"It is further ordered that the Motion of defendants Gray Madison and C. M. Berge, co-partners doing business as Madison Motors, for judgment notwithstanding the verdict is granted."
The section of our code relied on by the court, Sec. 21-1015, supra is as follows:
[63 Ariz. 527] "Reservation of decision on motion for directed verdict. -- Whenever a motion for a directed verdict made at the close of all
the evidence is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. Within ten (10) days after the reception of a verdict, a party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict; or if a verdict was not returned such party, within ten (10) days after the jury has been discharged, may move for judgment in accordance with his motion for a directed verdict. A motion for a new trial may be joined with this motion, or a new trial may be prayed for in the alternative. If a verdict was returned the court may allow the judgment to stand or may reopen the judgment and either order a new trial or direct the entry of judgment as if the requested verdict had been directed. If no verdict was returned the court may direct the entry of judgment as if the requested verdict had been directed or may order a new trial." (Italics ours.)
The plaintiff presents three brief assignments of error.
"1. That the court erred in refusing to grant plaintiff's motion for judgment in accordance with the verdict."
"2. That the court erred in granting the motion for judgment non obstante veredicto of the defendant Madison Motors, a co-partnership, consisting of Gray Madison and C. M. Berge."
"3. That the Court erred in overruling the plaintiff's motion for a new trial."
The complaint alleged that the accident complained of occurred on October 31, 1943, at or about the hour of 7 o'clock in the evening.
The testimony of C. M. Berge, one of the defendants and member of the partnership of Madison Motors, in [63 Ariz. 528] respect to the use ...