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Costello v. Wood

Supreme Court of Arizona

April 12, 1961

Dr. William COSTELLO and William J. Costello, Appellants,
W. J. WOOD and Dan A. Wood, dba Wood's Western Pump Service, Appellees.

[89 Ariz. 271] Alan Philip Bayham, Phoenix, for appellants.

Wm. H. Chester, Phoenix, for appellees.

JENNINGS, Justice.

Dr. William Costello and William J. Costello (hereinafter referred to as appellants) contracted with W. J. Wood and Dan A. Wood dba Wood's Western Pump Service (hereinafter referred to as appellees) to repair a pump on appellants' cotton ranch.

Page 11

Suit was brought in the trial court upon appellants' refusal to pay the itemized repair bill on completion of the job. Appellants filed a counterclaim for crop loss due to time delay and for damages due to appellees' defective and inadequate work. The trial court directed a verdict for appellees on the counterclaim and the jury awarded appellees damages in the sum of $4,447.63 on the original complaint. Appellants' motions for new trial were denied and as a consequence on appeal they bring three assignments of error. Two of appellants' three assignments of error attack the trial court's action in directing a verdict for appellees on appellants' counterclaim. Therefore we will treat these two together.

As we stated in Casey v. Beaudry Motor Company, 83 Ariz. 6, 11, 315 P.2d 662, 666:

"The court is justified in directing verdict only where evidence is insufficient to support contract verdict or so weak that court would feel constrained to set aside such a verdict on motion for new trial.' Citing cases.

The negligence complained of by appellants in their counterclaim centered around a mechanical failure causing the pump to drop several hundred feet to the bottom of the well. This occurrence, on the eve of the expected job completion, appellants contended, resulted in a delay which proximately caused damage to appellants' cotton crop resulting in financial loss.

In order to establish a prima facie case, i. e., one sufficient to go to the jury, it was incumbent upon appellants to establish by some competent evidence, facts tending to show each of the following elements, viz.: (1) that the linkage of appellees' equipment which gave way was defective, (2) that there was actual damage to the 'pumpbowls' bowls' and to the cotton crop, (3) that such defective condition of the linkage was the proximate cause of the damage, and (4) that the appellees knew or by the exercise of reasonable care should have known that the equipment was defective at the time of the installation.

We have carefully read the transcript and are unable to adduce, by any vain imagination, evidence from which it could rightfully be inferred appellees knew or should have known the equipment was defective. The linkage that actually gave way contained a defect that could not be [89 Ariz. 272] seen by inspection. The evidence discloses that appellees had meticulously inspected the assemblage insofar as inspection was possible through the senses, and had thus exercised diligent and reasonable care of the ordinary prudent man.

In fact there is no evidence in the record to shed any probative light toward the thory that the delay, due to the pump fall, proximately caused the diminished yield and texture of the cotton crop.

Appellants' own witness dispelled the contention that two days water beginning on the 17th day of July 1956 (the date of the fall), would have saved the crop from its plight.

Though there was some evidence tending to show that the cotton crop was damaged, this evidence was very slight. It could hardly be said that a clear comparison was made between the quantity and quality of the cotton harvested during the year in question and previous years.

The pump had not been functioning properly for a three or four-month period. Thus any loss to the cotton could not be necessarily traced to the incidents of the pump fall. In addition, repeated testimony accentuated the proposition that the time involved in any pump installation depends on the facts and circumstances of the installation, thus obviating the appellants' repeated contentions that the job was not completed in a reasonable time. The contract did not call for a specified date of completion.

On this record we hold that the trial court was within its province and did not err in instructing a verdict for appellees on appellants' counterclaim. To have ruled otherwise would have ...

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