[85 Ariz. 232] Westover, Mansfield, Westover & Copple, Yuma, for appellant.
Brandt & Baker, Yuma, for appellee.
This is an appeal by the City of Yuma (referred to herein as appellant) from a judgment in favor of appellee, Frieda Evans, by her guardian ad litem, Herman Evans, in the sum of $12,000, for personal injuries sustained by Frieda Evans when she came in contact with exposed electrical wires in a washhouse operated by and under the control of the appellant, City of Yuma.
In June, 1955, the Housing Authority of the City of Yuma was operating the Somerton Migratory Camp under a lease from the Federal Housing Authority. Herman Evans and his family, including his three-year-old daughter, Frieda, became tenants at the camp on June 2, 1955. Among the facilities furnished to the tenants were wash and bath houses. The washhouse consisted of two units divided by a partition, and in each portion there were wash trays for the washing of clothes and next to the wash trays there was an electrical outlet on a post to connect washing machines.
The City of Yuma purchased all of the electricity used at the camp from the Public Service Corporation, which was delivered[85 Ariz. 233] to transformers outside the camp, and the electricity was then metered through the Housing Authority to the tenants at the camp. The Housing Authority maintained all of the electric wiring within the camp and billed each tenant on a flat rate basis, which rate was included in the amount charged for rent.
On the afternoon of June 14, 1955, a fourteen-year-old girl living in the camp took Frieda Evans to the washhouse for the purpose of giving her a bath, instead of going to the women's bathing house which only provided showers. At the washhouse there were several children playing as they were accustomed to, and Frieda and her small brother each got into separate wash tubs and started playing in the water. The appellant admitted that when Frieda was getting out of the wash tub she came in contact with an electrical wire and received an electrical shock and was injured. The undisputed evidence showed her leg came in contract with an uninsulated electrically-charged wire protruding from a plug-in box that had the face plate missing. One of the children playing in the wash-house
attempted to get Frieda off the wash tub but was shocked, and another girl grambbed Frieda annd pushed her to the floor. The electric shock that Frieda received was of sufficient intensity to burn her forehead black or blue at the hairline, made her face blue and caused a severe burn upon her right leg immediately above the knee.
The appellant first urges that the trial court erred in refusing to instruct a verdict in favor of the City of Yuma for the reason that the City of Yuma was not authorized by law to operate a migratory labor camp some 18 miles outside its territorial limits, and second, that in the operation of the camp it acted in a governmental capacity and hence was not liable for the torts of its employees.
The defenses of ultra vires and governmental immunity were not pleaded by the appellant in its answer to the complaint nor presented to the trial court during the trial nor in its motion for a new trial. These defenses must be specially pleaded in order to be available to the appellant, and they cannot be urged for the first time upon appeal. Arizona Life Ins. Co. v. Lindell, 15 Ariz. 471, 140 P. 60; 38 Am.Jur., Municipal Corporations, Sections 666 and 667. It is the settled rule in this jurisdiction that questions or issues which were not presented to the trial court may not be raised for the first time on appeal. City of Glendale v. Coquat, 46 Ariz. 478, 52 P.2d 1178, 102 A.L.R. 837; Hallenbeck v. Yuma County, 61 Ariz. 160, 145 P.2d 837; Davis v. Kleindienst, 64 Ariz. 251, 169 P.2d 78. We therefore refuse to consider these assignments of error.
The appellant next assigns as error the failure of the trial court to grant a new trial for the reason that the evidence disclosed[85 Ariz. 234] that the facilities in which the minor child was injured were furnished by the appellant for the washing of clothes, and that the injury complained of occurred while the facilities were being used by the minor child for the purpose of taking a bath, and that there was no evidence showing that the appellant had notice of the alleged defects which caused the injury to the minor child.
It is undisputed in the evidence that the appellant furnished a washhouse which contained laundry tubs for the use of the tenants at the camp, and that electrical wiring and outlets were located therein for the purpose of plugging in electrical washing machines. The record conclusively establishes that the children at the camp regularly used the inside of the washhouse and the outside area as a playground, and the appellant had ample notice of this fact as its maintenance man testified he would frequently ask the children to leave the washhouse, and did this on some occasions as 'much as two or three times a day.' See Hays v. Bank of Arizona, 57 Ariz. 8, 110 P.2d 235. It is also undisputed that the wash tubs in the washhouse were at times used for bathing small children.
It was a question of fact for the jury to decide whether the use the children made of the washhouse was that intended or permitted by the appellant. The trial court properly submitted this question to the jury in instructing the jury that the appellant was not liable to the tenant or his children for injuries sustained because of the condition of a portion of the premises in the control of the appellant unless the injury occurred while the injured party was putting that portion of the premises to the use intended or permitted. The jury, in returning a verdict in favor of the minor child, necessarily found that a proper or a permitted use was being made of the washhouse at the time of the injury.
Appellee's first cause of action, upon which the jury returned its verdict, is based upon the negligence of the appellant in failing to properly maintain and keep in repair certain electrical wiring in the washhouse which proximately caused the injuries to the minor child. The appellee had the burden of showing that the appellant had notice of this defect and the resulting danger in ...