Campbell, Rolle & Jones, Byrne & Green and Udall W. Pace, all of Yuma, for appellants.
Westover & Mansfield, and Glenn Copple, all of Yuma, for appellees.
De Concini, Justice. La Prade, C. J., and Udall, Stanford and Phelps, JJ., concur.
De Concini, Justice.
[71 Ariz. 46] This matter is before us on appeal of the defendant below, James M. Clint, hereinafter referred to as defendant. There were two separate actions against Clint as defendant. The first, No. 12084 in the trial court, was by the Northern Assurance Company and the Security Insurance Company, both corporations, as plaintiffs under their subrogation agreements with their insured, John M. Harris. The second action, No. 12183 in the trial court, was by Harris as plaintiff for damages to his property not covered by insurance. Both suits arose from the same accident hence the matters were consolidated for trial and are here on one appeal.
John M. Harris, hereinafter designated as plaintiff Harris, was a dealer in automotive supplies in Yuma, Arizona and was the owner of real estate improved with a brick building and an appurtenant wooden shed, in which was housed store fixtures, shelves and stock in trade used in his business. He was insured against damages to his real estate by the above-named insurance corporations. Plaintiff Harris' real property suffered damages allegedly caused by defendant's negligence. The two insurance companies paid him under his policies as follows: Northern Assurance Company, $ 375.74; Security Insurance Company, $ 1,878.72. They then brought suit against defendant under their subrogation agreements with plaintiff Harris. The lower court rendered judgment in their favor against defendant in the sums they respectively paid plaintiff Harris, a total sum of $ 2,254.46.
Plaintiff Harris brought suit against defendant for damages to his personal property and his business over and above what he collected from his insurance companies. The lower court rendered judgment in his favor against defendant in the sum of $ 3,616.19.
The defendant was operating a truck and trailer between Los Angeles and Yuma under a lease agreement with Henry C. Mickey. Mickey, the owner of the truck, was also the chauffeur. On the morning of February 20, 1947, Mickey arrived in Yuma from Los Angeles about 5:30 a.m. with a capacity load weighing 55,000 lbs. Immediately after crossing the Colorado River bridge he parked opposite the Arizona inspection station in the center lane provided for trucks. He testified the right front door was locked, the air brakes and emergency brake were set, the gears were placed in compound low, which is the lowest gear, and the ignition switch was off. He presented the manifest of his cargo to the inspector and was away from his truck about two minutes. When he returned from the office of the inspector his truck was gone. The road on which the truck was parked is on a downgrade towards the City of Yuma and also has a 90 degree turn on it within a few hundred feet of where the truck was parked. Mickey further testified that he saw the tail end of his truck [71 Ariz. 47] disappear when he came out of the inspection station. He then got into another truck behind him which was owned by defendant and together with Danny Celaya, the driver of the other truck, started off to find his truck. They found the truck inside the building of plaintiff Harris on the opposite side of the street about 400 or 500 feet from where it was originally parked opposite the inspection station. Mickey and Celaya both testified that upon their arrival they saw two Negroes crawling out from under the truck and trailer and were obviously in a hurry to get away. The truck went right through the side of the wooden shed and brick building and damaged the real and personal property of Harris as before mentioned.
Defendant's position briefly summarized is that the court erred in three particulars,
as follows: 1. That it found the defendant's agent negligent; 2. That it allowed a trial amendment by inserting the words "real and" in front of the words "personal property" in plaintiff Harris' amended complain in action No. 12183; 3. That it gave ...