[80 Ariz. 73] Struckmeyer, Whitney & Perry, Harold E. Whitney, Phoenix, for appellant.
Jennings, Strouss, Salmon & Trask, O. M. Trask, Phoenix, for appellees.
This is an appeal by the Blakely Oil Corporation, third-party plaintiff, from an order of the trial court granting the motion of the third-party defendants for an instructed verdict and the judgment entered thereon and from the order denying its motion for a new trial.
The third-party defendants have crossappealed from the order of the trial court denying their motion to dismiss the complaint of third-party plaintiff. The thirdparty
defendants consist of R. E. Crowder, Sr., Mattie, Lee Crowder, his wife; Robert E. Crowder, Jr.; Karl E. Weisser and Helen Marie Weisser, his wife, doing business [80 Ariz. 74] as the Crowder Cattle Company, a copartnership, and will be hereinafter designated as the cattle company, and third-party plaintiff will be hereinafter designated as Blakely.
The facts are that one Charles L. Richmond, a truck driver for Wells Truckways, Ltd., hereinafter designated as Wells, brought an action against Blakely for damages for personal injuries suffered by him as the result of a motor vehicle accident occurring between a Blakely tractor and tank trailer and Wells' truck driven by plaintiff.
The accident occurred on the Wickenburg-Blythe highway near Desert Wells in September, 1952. It is alleged that said accident was due to the negligent operation of the Blakely tractor and tank trailer at the time and place, among other things, by failing to reduce its speed upon observing cattle grazing along and about the shoulders of said highway, and crossing from one side of the highway to the other, and that by reason thereof, the Blakely tractor and tank trailer collided with the Well's truck which plaintiff was driving, inflicting upon him severe bodily injuries and causing the gasoline with which plaintiff's tank was loaded, to be sprayed upon him, causing first, second and third degree burns over a large area of the body.
Before the cause was submitted to the jury, by stipulation of counsel, the main cause of action was settled awarding to plaintiff $50,000 and judgment thereafter was entered accordingly from which no appeal was taken. We are therefore concerned here only with the litigation between Blakely as third-party plaintiff and the cattle company as third-party defendant.
Blakely's claim is based upon the allegation that the cattle company was negligent in permitting their cattle to stray upon and across such public highway and that on the night in question, one of its cows collided with the tractor and tank trailer then being driven by one of its employees and that as the active, primary and efficient proximate result thereof, said tractor and tank trailer collided with the motor vehicle which the plaintiff Richmond was then operating, causing the injuries to him, and that if in fact, Blakely is liable to Richmond for the injuries he sustained, such liability was caused by the negligence of the cattle company and the latter is liable to him to the same extent and in the same amount.
The cattle company's motion to dismiss Blakely's third-party complaint upon which its cross-appeal was taken, is based upon the proposition of law that, under the provisions of section 21-446, 1952 Cum.Supp., A.C.A.1939, such action is not maintainable and asserts that the court therefore erred in denying its motion to dismiss the third party complaint.
Section 21-446, supra, reads, insofar as here material:
'Third-party practice-When defendant may bring in third party.-Before[80 Ariz. 75] the service of his answer a defendant may move ex parte or, after the service of his answer, on notice to the plaintiff, for leave as a third-party plaintiff to serve a summons and complaint upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff's claim against him. * * *' (Emphasis supplied.)
It will be seen from the above quotation, as amended, the right of a defendant to bring in a third-party defendant is limited to persons only who are secondarily liable to the original defendant and who are not primarily liable to the plaintiff in the original cause of action. If the third-party defendant is primarily liable to the original plaintiff he then becomes at most a joint tort-feasor with the third-party plaintiff and under such circumstances, according to all the authorities in the absence of statute, the original defendant, third-party plaintiff, may not maintain an action against him for contribution. In the case of Builders Supply ...