RUTH et ux.
Appeal from Superior Court, Maricopa County; M. T. Phelps, Judge.
Judgment affirmed as modified.
Laney & Laney, of Phoenix, for appellants.
Hill, Robert, Hill & Price, of Phoenix, for appellee.
Udall, Justice. Stanford, C. J., and La Prade, J., concur.
[66 Ariz. 131] Plaintiff (appellee) Earl Griffith Rhodes, a minor of the age of sixteen years, acting by his guardian ad litem Trancy Clarenton Rhodes (his father), brought this tort action against defendants (appellants) W. O. Ruth, who was then a member of the Arizona Highway Patrol, and his wife Nellie Ruth. The claim was for damages in the sum of $ 15,000 purportedly suffered by plaintiff as the result of an automobile accident alleged to have been caused by the negligence of defendant W. O. Ruth. The verdict of the jury
awarding damages in the sum of $ 7500 found "for the plaintiff and against the defendants and each of them." The minute order which constituted the judgment [66 Ariz. 132] was joint and several thereby fixing, among other things, an individual liability upon defendant Nellie Ruth. From the judgment and the court's denial of their motion for a new trial defendants take this appeal.
The following undisputed facts are revealed by the evidence: The evening of May 13, 1944 at about 9:30 p. m., Ruth was patrolling the Buckeye Road when, by short-wave radio, he received a message at Tolleson to proceed with all dispatch to Buckeye where two men had been killed and others injured in an automobile collision. It was while on his way to this accident, and at a point on Highway 80 in Maricopa County near the Goodyear Plant that defendant attempted to pass a pickup truck proceeding in the same direction and driven by plaintiff's father. The father, his wife and a daughter were riding in the cab of the truck while plaintiff was riding in the rear. The right front side of the patrol car collided with the left rear corner of the truck causing both vehicles to leave the highway. Plaintiff was thrown violently to the pavement suffering a severe compound comminuted fracture of the leg and other abrasions. After many weeks of hospitalization and repeated surgery the injured leg was saved but, as the result of this accident, it is one and five eighths inches shorter than the other.
There is sharp conflict in the testimony as to the cause of the accident. Patrolman Ruth testified that his siren was going constantly and that he was playing a red spotlight upon the truck after it came into his line of vision some 350 feet distant; that the driver of the truck pulled over to the right side of the road with the two right wheels on the shoulder and after almost coming to a stop in this position, started to make a sudden left-hand turn across the road and into the path of the patrol car, but upon getting practically back to the center of the highway, he again swerved sharply to the right, this time but a moment before the collision. Ruth said that he was going at a speed of about 60 miles per hour and emphatically denied that he was guilty of any negligence laying the entire responsibility for the accident upon plaintiff's father.
The occupants of the truck, on the other hand, testified that they heard the patrolman admit he was going 90 miles per hour. They all deny hearing the siren or seeing the red spotlight or, in fact, knowing of the approach of the patrol car until they heard the screeching brakes just a moment before impact. They claim they were hit just as the truck was turning left into a side road where a relative lived. Plaintiff's father stoutly denied that he told the patrolman after the accident that he had heard the siren and had seen the spotlight but thought that he had time to make the turn. There are twelve assignments of error which will be considered seriatim.
At the outset defendants assign as error the trial court's denial of their motion for [66 Ariz. 133] summary judgment, and later its refusal to direct a verdict in their favor. Both motions were predicated upon the proposition of law that an officer of the State of Arizona is not liable in tort for negligence on his part while in the performance of the governmental functions of the state. Defendants rely primarily upon the holdings in State v. Sharp, 21 Ariz. 424, 189 P. 631; Hartford Accident & Indemnity Co. v. Wainscott, 41 Ariz. 439, 19 P.2d 328; Grande v. Casson, 50 Ariz. 397, 72 P.2d 676; and Larsen v. County of Yuma, 26 Ariz. 367, 225 P. 1115, where this court announced the principle that neither the state, nor any political subdivision thereof, was liable for the negligence of its employees or agents, occurring in the discharge of some purely governmental function such as the construction of an addition to the capitol building or the construction and maintenance of public highways. The Larsen and Grande cases, supra, go a step further and exempt from liability, under the facts there shown, public officers (who were also parties defendant to the tort action) for their alleged negligence in the building and maintaining of public highways. However it must be clearly pointed out that the Larsen and Grande cases have reference to a very limited and specific factual situation, i.e., the personal
tort liability of state and county officers in regard to construction defects or failure of proper upkeep of bridges and highways. In this field, although there is now developing a split of authority together with an increasing number of refinments and exceptions, the Larsen and Grande cases (at the time they were decided certainly, and even now) are aligned with at least the numerical weight of the decisions, 9 C.J., Bridges, § 69, 11 C.J.S., Bridges, § 62, whereas the general rule applicable to the case at bar concerning the personal tort liability of state officers generally is quite uniformly to the contrary. 59 C.J., States, sec. 228; Florio v. Schmolze,101 N.J.L. ...