HANSEN et ux.
As Corrected on Denial of Rehearing Dec. 22, 1953.
[76 Ariz. 308] Rhodes & McMillen, Mesa, for appellants.
Harold R. Scoville and Chas. A. Stanecker, Phoenix, for appellee.
Ruth Oakley as plaintiff brought suit against defendants Ray J. Hansen and Marie N. Hansen, husband and wife, and Dan Hansen, a single man, to recover damages for injuries she admittedly suffered as a result of the negligence of Dan Hansen in failing to heed a stop sign at the intersection of 48th Street and East McDowell Road, near Phoenix. The collision practically demolished plaintiff's car, and caused painful and permanent injuries to her person. The jury awarded her damages in the sum of $10,000 against all three defendants. Defendant Dan Hansen perfected no appeal from the judgment entered on the verdict, so it has become final as to him.
Ray J. Hansen and Marie N. Hansen will hereinafter be called by their first names, or designated as appellants. Judgment was entered against them upon the theory of respondeat superior and they appeal primarily upon the grounds that the trial court erred in denying (a) their motion for an instructed verdict made at the close of plaintiff's case, and (b) a similar motion renewed at the close of all the evidence; (c) their motion to set aside the verdict, and (d) their motion for judgment notwithstanding the verdict, or in the alternative for a new trial. The bases for these respective motions were, (1) that the evidence failed to show that Dan Hansen was in the employ of, and acting for and on behalf of, these appellants at the time of the occurrence of the accident out of which this suit arose, but that to the contrary the evidence definitely established that defendant Dan Hansen was engaged in a pursuit solely for his own personal benefit; (2) [76 Ariz. 309] that all the evidence adduced at the trial was so clear that reasonable men could not believe that at the time of the accident the relationship of master and servant existed between Dan Hansen and these appellants, so as to make the latter liable for the tortious acts of the former. We believe this case can be disposed of upon these assignments without considering the other grounds relied upon for reversal.
In determining this appeal we must, of course, construe the evidence in the light most favorable to sustaining the judgment, and if the evidence is of such a character that reasonable minds could differ as to the inferences to be drawn from the facts, the case was properly submitted to the jury. Ong v. Pacific Finance Corp. of California, 70 Ariz. 426, 432, 222 P.2d 801. On the other hand, if the evidence is not in conflict the only issue is whether the trial court properly applied the law to the facts. The rule is well settled that we are not bound by the conclusions of the trial court or jury, but are at liberty to draw our own legal conclusions from the admitted facts. See Sanders v. Brown, 73 Ariz. 116, 238 P.2d 941, and cases therein cited.
We have carefully examined the evidence as to whether Dan Hansen was acting as the servant of appellants, and acting in the course and scope of such employment at the time of the accident. There is no material conflict in the evidence on this point. In fact, we need only consider the entire testimony of Dan and Ray Hansen, for the other thirteen witnesses threw no light on this crucial issue.
Ray operated a dairy and certain farms near Gilbert, Arizona. His brother Dan had been employed not at a weekly wage, but at hourly wages, for general work on the farm, other than dairy work. Dan boarded with appellants but was not expected to work, and did not work, on Sundays. On the morning of Sunday, March 19, 1950, just before Ray and his wife left for church, Dan informed his brother that he, Dan, was going to the horse races at Ingleside
Track (now Arizona Downs), located just off Thomas Road, west of Scottsdale, Arizona, Ray then
'* * * mentioned as long as I was around that vicinity if I'd mind driving on over and picking up Buddy (a horse) if I felt like it.'
Counsel for plaintiff in interrogating Ray on cross-examination drew from him this version of the conversation:
Mr. Scoville: '* * * on that morning you said, 'Dan, if you are going over to the races and happen to have time and want to, you might stop by and pick Buddy up and bring him home?' A. That is right.'
Ray further testified without contradiction that at no time did he tell Dan 'in specific terms to get Buddy'.
'Buddy Jr.' was a 19-month-old quarter horse owned by Ray that was then being trained for exhibition purposes at a stable [76 Ariz. 310] located behind the Silver Spur nightclub, on Seventh Street just south of Camelback Road, in Phoenix. Dan had been to the stable a week prior to the accident and knew how to get there from the race track. Ray had been going over to see the colt two or three times a week, and though Buddy Jr. was not doing well at the stable, and Ray testified '* * * * I had planned to come to the sale on Monday (the next day) and I would pick Buddy up at the same time.'
Dan testified that on the morning in question he had intended to drive his own automobile to the races, as his brother Ray had asked him to do. Dan's car had a trailer hitch and would have been suitable, but it failed to start because the battery was run down, whereupon he 'decided to take the pickup.' While the evidence on the point is not definite, it would appear that probably the horse trailer was already attached to the Studebaker pickup. The truck and trailer, both of which were involved in the accident later that day, were owned by Ray. The latter testified that he did not at any time tell Dan to take his pickup nor did he authorize him to do so. To the contrary, Ray testified that some two months previously, owing to an accident ...