WOMACK et al.
Appeal from Superior Court, Maricopa County; Dudley W. Windes, Judge.
For former opinion, see 163 P.2d 280.
On motion for rehearing. Opinion supplemented and approved.
Stockton & Karam, of Phoenix, for appellants.
Kenneth S. Scoville and Lynn M. Laney, both of Phoenix, for appellee.
Stanford, Chief Justice. LaPrade and Morgan, JJ., concurring.
Stanford, Chief Justice.
[64 Ariz. 63] In their motion for rehearing, defendants call attention to our failure to discuss and pass upon the following questions which were raised:
"1. May parents, the sole beneficiaries, recover damages for the death of their non sui juris child, expressly sent by them through a place of danger to perform a service for them, where the child in passing through the place of danger loses his life?
"2. Is a parent who makes a non sui juris child his agent or employee to perform a service responsible for the acts of omission and commission of such non sui juris child, which acts of such child would amount to negligence if the child had the capacity to be negligent?"
On re-examining our former opinion, we find that neither of the above questions were expressly considered or decided. We refer to the original opinion for a statement of the facts, and will not again restate them.
The first question is not justified by the facts. The evidence did not disclose that the parents expressly sent their child through a place of danger. The testimony indicated, as was suggested in the former opinion, that the child had been instructed to cross the street only at the light-control [64 Ariz. 64] crossing and on the green light. He was not instructed to cross at any other point. On further reference to the record, we find the court instructed the jury in effect that if the action of either of the parents, in sending the child on the errand, constituted contributory negligence which proximately caused or contributed to the death of the child, there could be no recovery. The following instructions were given by the trial court:
"The contention of the defendant is that it was the negligence of the parents of the child that caused the child to meet this unfortunate accident, and that that negligence of the parent in sending the child on the errand caused or contributed to his resulting death and the defendant ...