Rehearing Denied January 16, 1952.
Reversed with directions.
McDaniel, Franks & Powell, of Prescott, Jennings, Strouss, Salmon & Trask, and J. A. Riggins, Jr., all of Phoenix, for appellant.
Byrne & Bryne, of Prescott, for appellee.
Udall, Chief Justice. Stanford, Phelps, De Concini and La Prade, concur.
Udall, Chief Justice.
[73 Ariz. 117] Howard I. Sanders, defendant below, has appealed from a judgment against him in the sum of $ 4,500.00, rendered by the court sitting without a jury. Plaintiff, William R. Brown, alleged that his injuries were directly and proximately caused by the negligence of defendant in maintaining a gravel pile on the driveway near his home and failing to warn him of it.
In this unique case there is no conflict in the evidence. The only witnesses
were the plaintiff and the defendant and the latter's wife. The only issue is whether the trial court properly applied the law to the facts. The rule is well settled that we are [73 Ariz. 118] not bound by the conclusions of the trial court, but are at liberty to draw our own legal conclusions from the admitted facts. Maricopa County Water Conservation Dist. No. 1 v. Southwest Cotton Co., 39 Ariz. 65, 4 P.2d 369; Mountain States Tel. & Tel. Co. v. Sakrison, 71 Ariz. 219, 225 P.2d 707; Industrial Commission of Arizona v. J. & J. Const. Co., 72 Ariz. 139, 231 P.2d 762; In re Estate of Taylor, 56 Ariz. 211, 106 P.2d 492.
Since 1941 the parties have been engaged as equal partners in the credit jewelry business under the firm name of Brown's Credit Jewelers, operating stores in Flagstaff and Prescott, Arizona. Plaintiff is the manager of the Flagstaff store and defendant of the Prescott store. A very friendly relationship existed between the parties and for a number of years it had been the practice when visiting the respective stores to stay at the other's home rather than go to the hotels. This hospitality continued down to and including the date of trial.
Plaintiff and his wife left Flagstaff on Saturday, August 24, 1946, to go to Prescott on one of their periodic visits, arriving at defendant's residence about one-thirty Sunday morning where they spent the remainder of the night. Later that day the partners were driven by Mrs. Brown to their Prescott store where the men spent the afternoon discussing business affairs, returning about nine or nine-thirty, p. m. Monday morning, Mrs. Brown again driving the car, the partners went to the store. That afternoon the partners accompanied by Mrs. Brown drove out to a recreational area some five miles north of Prescott known as the "Gardens", arriving there about three o'clock. Defendant attended a meeting of the board of directors of the corporation which operated the area, while the plaintiff and his wife went into the bar or cocktail lounge and had a few drinks. According to plaintiff's own admission, from then until midnight he had about thirteen to fifteen "coke highs".
When the parties were ready to leave they were unable to locate the keys to their automobile and were driven to the Sanders' home by some friends. (Incidentally the keys were found later in the plaintiff's hip pocket). They started up the dark inclined driveway, Mrs. Brown walking in front and the men walking and talking together ...