ROMAN CATHOLIC CHURCH, DIOCESE OF TUCSON et al.
Order affirmed in part and reversed in part with directions.
Knapp, Boyle, Bilby & Thompson, of Tucson, for appellant Roman Catholic Church.
Darnell, Robertson & Holesapple, of Tucson, for appellant E. Samuel Gercke.
Harold C. Wheeler and James M. Howsare, of Tucson, for appellee.
Stanford, Justice. Udall, C. J., and Phelps and La Prade, JJ., concur. De Concini, J., took no part in determining this appeal.
[74 Ariz. 21] Appellee, Michael Keenan, brought this action through his guardian ad litem to recover damages for an injury incurred on the playground of the Catholic All Saints School in Tucson, Arizona. The trial of the cause resulted in a directed verdict in favor of all of the defendants at the close of plaintiff's testimony on the ground that no negligence was shown. Thereupon, plaintiff, appellee herein, filed a motion
for new trial. The trial court granted the motion as to the defendants Roman Catholic Church, Diocese of Tucson, and E. Samuel Gercke, a general contractor, and denied the motion as to defendant L. M. White, a subcontractor. Appellants Gercke and Roman Catholic Church now appeal from the order granting a new trial.
The facts, stated in a light most favorable to appellee and to an affirmance of the order appealed from, are as follows:
Appellee, an eight year old boy at the time of the accident, was a duly enrolled student in the second grade at said All Saints School. A merry-go-round was maintained on the school playground for the use and enjoyment of the younger children in attendance. On the date of the accident, September 8, 1948, appellee was thrown from the moving merry-go-round [74 Ariz. 22] and struck his head against some pipes stacked in close proximity to the merry-go-round. The pipes, which are referred to as "monkey bars", were to be assembled at a later date as an addition to the playground equipment. As a result of the accident, appellee sustained a fractured skull which required hospitalization and operations and necessitated the placing of a steel plate in his skull.
Appellee's complaint alleged that his injuries would prevent him from engaging in normal activities for a long period of time and that he would be unable to engage in many types of activities for the remainder of his lifetime. Appellee alleged that the injuries were the direct and proximate result of defendants' negligence in leaving the pipes under and about the merry-go-round.
The first assignment of error of appellant Roman Catholic Church (hereinafter referred to as the Church) seeks to uphold the directed verdict in its favor by contending that it was and still is a charitable institution and that no negligence in the selection of its agents or employees who were charged to have been responsible for the injuries suffered by appellee was shown. After appellee's motion for new trial was granted, the Church moved for summary judgment on the grounds that it was a charitable institution as defined in Southern Methodist H. & S. v. Wilson,45 Ariz. 507, 46 P.2d 118. The lower court's denial of this motion presents the basis for the Church's second assignment of error. As these two assignments of error raise the same issue they will be discussed together. Appellant's brief was written before our decision in Ray v. ...