KRAUTH et al.
BILLAR et al
Reversed and remanded.
Fennemore, Craig, Allen & Bledsoe, of Phoenix, for appellants.
Snell, Wilmer, Walsh & Melczer and Kramer, Morrison, Roche & Perry, all of Phoenix, for appellees.
Stanford, Justice. Udall, C. J., and Phelps, De Concini and La Prade, JJ., concur.
[71 Ariz. 300] Action was brought in the Superior Court by the appellants herein to recover damages allegedly sustained as a result of negligence of the appellee, Robert Billar.
At approximately 10:30, on the night of August 20, 1945, appellant Bessie Fern Krauth, fifteen years of age, was assisting a group of five other young people in pushing a Ford automobile, owned by Harry Wilson, Jr., in a Southerly direction along North Seventh Street in the vicinity of East Palm Lane in Phoenix, Arizona. The car had run out of gas shortly before and they were attempting to start the car after having put some gas in the tank. Facts brought out at the trial indicate that the Ford, at the time of the accident was located on the West side of the well traveled portion of the street.
Shortly before the accident complained of, a "jeep" automobile which had been traveling in a Southerly direction, along North Seventh Street, turned around and stopped opposite the Ford on the East side of the well traveled portion of the street, facing North, with the head lights shining. Appellee Robert Billar, who was driving his father's Hudson automobile in a Southerly direction along North Seventh Street at the time, claims to have been blinded by the lights from the "jeep" as he approached the two cars. Upon seeing the Ford, he applied his brakes, and after skidding some 59 feet, collided with the rear of the Ford car, the impact of which carried it approximately 400 feet South on Seventh Street. Appellant Bessie Krauth, who had been pushing the Ford from the rear, was caught between the two cars at the time of the impact which resulted in tearing her right limb from her body just below the knee.
Complaint was thereafter filed by Bessie Krauth and her parents, all of whom are appellants herein, alleging injury to the person of Bessie Krauth and damages resulting from the said injury. The complaint [71 Ariz. 301] joined Louis L. and Nettie Billar, the parents of the appellee Robert Billar, alleging liability on the basis of the Family Car Doctrine.
The jury in the case returned a verdict in favor of all the appellees, and upon such verdict, a judgment was rendered in favor of the appellees, on the 18th of October, 1947. From such judgment and the denial of a motion for new trial, this appeal is taken.
Before entering into the merits of the appeal, convenience suggests that we first dispose of a preliminary point. The major portion of the appellees' brief is devoted to argument directed at disposing of any possible application of the Family Car Doctrine in the joining of Louis L. and Nettie Billar. The record discloses that motion for summary judgment as to these parents of Robert Billar, was made prior to the trial in the lower court and again at the close of the trial, both motions alleging that Robert Billar was a member of the armed forces at the time, and as such was not a member of the Billar family in a legal sense. These motions were denied both times.
Appellees have submitted argument on this matter without having made any cross assignment of error and therefore there will be no consideration given it by this court. It is of course a well settled rule in this jurisdiction that argument by an appellee, that error was committed in the lower court to his prejudice, will not be considered in absence of a cross assignment of error, where the error is not fundamental. Steinfeld ...