Weldon S. MALOY, Appellant,
Jess E. TAYLOR and Eva Taylor, his wife, Appellees.
[86 Ariz. 357] Rawlins, Davis, Christy, Kleinman & Burrus, and Chester J. Peterson, Phoenix, for appellant.
Anderson & Smith, Safford, for appellees.
ROBERT E. McGHEE, Judge.
The plaintiff below, Weldon S. Maloy, has appealed from the order of the Graham [86 Ariz. 358] County Superior Court granting the defendants Jess E. Taylor and Eva Taylor, his wife, a summary judgment dismissing plaintiff's complaint for damages arising out of a one-car accident in which the plaintiff was a rider in the automobile of defendant Jess E. Taylor in the State of New Mexico. Since the defendant Eva Taylor is involved only as the wife of defendant Jess E. Taylor, the parties will be referred to as plaintiff and defendant, as in the Court below.
Briefly, the facts are that the parties, residents of Safford, Arizona, had gone to Alpine, Arizona, to purchase jointly a lot upon which to park their individual vacation trailers and construct a restroom. The trip to Alpine was made in defendant's pick-up, which also pulled defendant's house trailer. On part of the journey the road goes through the western part of New Mexico. On the return trip the defendant capsized the pick-up truck in a mountainous area where the road was prepared with gravel prior to paving, causing injury to the plaintiff. The complaint alleged that the defendant 'heedlessly and negligently operated the said pick-up truck in reckless disregard of the rights of the plaintiff * * *.'
The action of the Court was based upon the pleadings and deposition of the parties, which show they had been friends for some years. On occasional automobile trips together their habit had been that if the automobile of one was used, the other would pay for the gasoline. Apparently this was true with respect to this trip, the plaintiff having purchased gasoline and having shared other expenses, such as groceries.
The defendant moved for summary judgment on the ground that the defendant was a guest and that under the terms of the New Mexico Guest Statute the depositions show no cause of action. Defendant's memorandum in support of the motion for summary judgment contended that in New Mexico the owner and operator of an automobile was not civilly liable to the rider if he were a 'guest' within the term of the Act in the absence of heedless, reckless and wanton misconduct. Defendant further argued that the plaintiff did not come under a common exception to the guest acts which permits members of a joint enterprise to recover against each other without proof of the higher degree of negligence required under the guest statutes.
Plaintiff's sole assignment of error is that the Court erred in granting summary judgment because 'There is a genuine issue of fact, namely, whether or not plaintiff and defendant Jess E. Taylor were on a joint venture at the time of the accident.' Defendants in their answer brief set forth the following propositions of law:
'1. An appeal is limited to the issues and theory presented to the trial court.
[86 Ariz. 359] '2. Joint venture is properly limited to cases of imputed negligence.
'3. Joint venture requires joint control of the operation and control of the vehicle.'
Although, with certain exceptions, this Court has held to the first proposition of law, we feel that the case should be decided on the third question of joint venture, as this issue was briefed to the Court on the summary judgment issue below, and was first raised by the plaintiff himself. Rubens v. Costello, 75 Ariz. 5, 251 P.2d 306; and cases there cited. We are at loss to understand why plaintiff did not ask to amend his complaint to state the issue formally. The Court below perhaps would have been authorized to grant the motion for judgment subject to the right to amend, if it did not in fact decide the case on the question of joint venture. Baxter v. Harrison, 83 Ariz. 354, 321 P.2d 1019.
The New Mexico Guest Statute, N.M. Stats.Ann. § 64-24-1 (1953), is taken verbatim from the guest statute of the state of Connecticut and reads as follows:
'No person transported by the owner or operator of a motor vehicle as his guest without payment for such transportation shall have a cause of action for damages against such owner or operator for injury, death or loss, in case of accident, unless such accident shall have been intentional on the part of said owner of ...