202 P. 401 | Ariz. | 1921
Victor Gomez brought this action as the father of Victoria Gomez, his fifteen months old child, against the town of Flagstaff, a municipal corporation, McLean & Walsh, a partnership composed of Neal McLean and William D. Walsh, and Neal McLean and William D. Walsh as individuals, and recovered judgment for $12,875. From this judgment and the order- denying a motion for a new trial two separate notices of appeal were given, one by tbe town of Flagstaff and the -other by the remaining defendants, but only tbe latter — that is, Mc-Juean & Walsh, a partnership, and Neal McLean and
Except in cases where the appellant is not required by law to furnish bond, an appeal is taken by giving notice thereof and filing a bond within the proper time, and it is deemed perfected, and the jurisdiction of this court attaches only after both of these requirements have been complied with. Paragraphs 1234, 1236, and 1237, Rev. Stats. 1913 (Civ. Code); Thomas v. Speese, 14 Ariz. 556, 132 Pac. 1137; Inspiration Consolidated Copper Co. v. Mendez, 19 Ariz. 151, 166 Pac. 278, 1183. The giving of the notice without pursuing the appeal to the extent of filing the bond when one is required confers on'this court no jurisdiction to consider the merits, but only the power to enter an order of dismissal. Dean v. Territory, 13 Ariz. 152, 108 Pac. 476; Young Construction Co. v. Ruth Gold Mines Co. et al., 14 Ariz. 518, 131 Pac. 1045; Rothlisberger v. Hamblin, 15 Ariz. 274, 138 Pac. 14; Town of Yuma v. Winn, 17 Ariz. 92, 148 Pac. 286; Consolidated School District v. Enge, 17 Ariz. 559, 155 Pac. 301.
Appellant town of Flagstaff claims, however, that inasmuch as the amount of the bond on appeal was, pursuant to the statute, fixed by the clerk of the superior court at a sum that insures the repayment of appellee’s costs in case of affirmance of his judgment, the giving by one of the appellants of the bond required fulfills the purpose of the statute, and renders useless the furnishing of another bond by the other defendant, guaranteeing the same costs. If it could be correctly contended that there is only one appeal, it is not apparent how compliance with the statute on appeal by one appellant could confer on this court jurisdiction to review the judgment against
“By reason of there being no bond filed by Turner or on his behalf, this court does not obtain any jurisdiction over him or his interests in the case. The determination of this question will therefore be had relative to the rights and interests of the guaranty company alone.”
“As a general rule, where two or more persons appeal or bring error severally from or to a judgment, order, or decree, they must each file a bond or undertaking for the amount required by the statute. But two or more defendants may unite in appealing or bringing error in a proper case, and perfect such appeal by joining in a single bond or undertaking. In such case all the appellants or plaintiffs in error must join in the bond or undertaking, and it must be so worded as to bind them, or each must give a bond or undertaking, in the absence of statutory provision to the contrary, and the wording of the- condition must be such as to bind the sureties as to all.”
It is contended further that it is questionable if the town of Flagstaff can execute a bond, inasmuch as the power is neither expressly given by its charter nor fairly implied from the terms thereof. Every municipal corporation in this state by the express terms of the general law under which it was organized “may sue and be sued, plead and be impleaded, defend or be defended, in all courts in all actions whatsoever.” The power to do every act required to prosecute or defend an action to which it is a proper party in both the trial and appellate courts is necessarily implied in this language. The execution of a bond on appeal is merely an incident of its power to sue and be sued. If this were not true, a municipal corporation brought into the trial court to defend an action would be in this unenviable and unfair situation, powerless to appeal from an adverse judgment, whether properly or improperly entered, yet compelled at the instance of the adverse party, to uphold in the Supreme Court a judgment in its favor. The mere statement of the proposition is sufficient
The overruling of a general demurrer to the complaint is assigned as error, appellants contending that it should have been sustained because the complaint fails to state a cause of action for damages resulting from negligence in that it does not “charge a duty of defendants toward plaintiff or said decedent, the breach, and the resulting damages.” A reading of the complaint discloses these facts: That the town of Flagstaff, a municipal corporation, entered into a contract in writing with McLean & "Walsh, a partnership composed of Neal McLean and William D. Walsh, residents of Los Angeles, California, for the construction of a sewer system in said town of Flagstaff, and, among others, on a street known as 0 ’Leary Avenue, a common thoroughfare used by the residents of said town and others; that said defendants, pursuant to said contract, began excavation on said O’Leary Avenue prior to July 1, 1919, and ceased said work on July 2, 1919, when it consisted, of a ditch along the north side of said street more than six feet in depth and a large manhole of the same depth and more than four feet in width directly in front of and about forty feet from the home of Victor Gromez which said ditch and manhole were negligently left open and wholly unprotected by any means whatsoever from the second day of July, 1919, until about the twentieth day of August, 1919; that after the second day of July, 1919, and prior to the sixteenth day of August, 1919, heavy rains fell in the town of Flagstaff, and the said sewer ditch and manhole became filled with water, and so remained for more than
In view of these allegations it cannot be said that a duty from appellants toward appellee and his child, Victoria Gomez, and the breach thereof, is not charged. It is true that such duty is not set out in Jiaec verba, but it follows inevitably from the facts which are alleged. In the performance of their contract appellants excavated in 0 ’Leary Avenue a ditch and manhole over six feet in depth, and it is self-evident that an opening of this character in a street constantly used by the public, without something to warn people of its presence, or a covering sufficient to prevent those unwarned from falling into it, was dangerous to those passing that way; and the fact that such excavations remained wholly unprotected and full of water from the rains for á period of more than thirty days made the danger very much greater. It was clearly the duty of those responsible for such condition to minimize as much as possible the dangers of it by warning in some manner people using that street of its presence, or by covering the opening or in some other appropriate method preventing the likelihood of one’s falling in. Their duty in this respect
According to the facts pleaded, the child fell into the sewer ditch or manhole while it was open, exposed, without any protection, and full of water, and was immediately drowned therein. The word “fell,” as here used, signifies that the child descended into the manhole by force of gravity and excludes the idea of being thrown, pushed, or knocked in. It implies no suggestion or intimation whatever of the application of an extrinsic force causing the child to lose its balance and pass downward in obedience to the law of gravity. If it had been intended by the pleader to convey the idea that the child’s being in the manhole, was the result of something other than the presence
It is next complained that the evidence submitted does not establish a right of recovery against the defendants. The question was raised first at the close of plaintiff’s case by motion for a directed verdict, and again in the motion for a new trial. It is argued that proof of the negligent omission to protect the excavation or manhole and of the death therein by drowning are not of themselves sufficient to establish the one as the proximate cause of the other. This is true, but, in addition to proof of the facts substantially as alleged, the evidence discloses that about ten or twelve minutes before the child’s body was discovered by its mother it was seen playing in the sand in its yard near the back gate, and that about 5:20 or 5:3Q a neighbor passed it in the street practically halfway between the front gate of its yard and the excavation, that its mother took it from the manhole while its body was still warm, and that in attempting to resuscitate it water ran from its mouth and nose. No one, it is true, saw it fall in, but the fact that it was seen in the street near the manhole alone almost immediately before that and found a very few minutes afterwards, with nothing to suggest, even remotely,
Appellants contend, however, that the jury should have had submitted to it also the carelessness and negligence of the parents in watching over and caring for the child as the proximate cause of its death, and that, if they had been permitted at the opening of the trial to file an amended answer containing such allegation which was then offered, this matter would have been before it. The ruling denying them per-' mission to amend in this respect their answer, then consisting only of a general denial, a demurrer having been previously overruled, is objected to upon the ground that they were entitled as a matter of right to amend any time before trial, and the proposed amendment would have been a good defense to the action. Regardless of the question of the proper exercise of the court’s discretion to permit or refuse an amendment on the eve of trial after the cause had been set for a number of days and a jury was present ready to be impaneled, a determination of the merits of the amendment offered as a defense will disclose
“The right of an infant to damages for injuries to his person caused by the wrongful act of others is a property right, and entitled to the same protection in*196 the courts as is accorded other property held or owned by him. He is entitled to the protection of the law equally with persons who have attained their majority, and to refuse him relief on the ground of his parents’ indifference or negligence would be to deny it to him. To impute to him negligence of others is harsh in the extreme, whether the negligence so imputed be that of his parents, their servants, or his guardian. He is a citizen within the meaning of the law of the land, and entitled to such rights and privileges as are appropriate to his class, and to the equal protection of the law.”
To the same effect is the following from Judge Thompson in his work on negligence, page 294, volume 1, which is quoted with approval in 29 Cyc. 555:
“That it should be adhered to in any enlightened jurisdiction with respect to children is a reproach to the judges who uphold it. An adult person, when he commits his person to the custody of another, does so at least voluntarily; an infant does not select his custodian; it is selected for him by the laws of nature, or by circumstances beyond his control. Certainly there is no reason why the ordinary principle that, where one is injured by the concurring negligence of two persons, he has an action against either or both, should not apply in the case of an injury to a child, unless the imputation is to be put upon the law of denying to feeble and helpless infancy the- same measure of protection which it accords to adults. Such a conception is cruel, heartless, and wicked. It can only hold in jurisdictions where property is placed above humanity. ’ ’
We are clearly of the opinion that imputed negligence should not be allowed to defeat an action for the benefit of the child, nor one in behalf of its estate Where there are beneficiaries other than those whose negligence contributed to its death. The reasons for this rule, however, fail where the action, though nominally for the benefit of the estate, is in reality in the interests of the beneficiary thereunder, whose
“While in most jurisdictions negligence of parents or others in loco parentis cannot be imputed to a child to support the plea of contributory negligence when the action is for his benefit, yet, when the action is by the parent in his own right or for his benefit, as when he sues as administrator, but is also the beneficial plaintiff or cestui que trust of the action as distributee of the child’s estate, the contributory negligence of the parent may be shown in evidence in bar of the action, and this although the action is brought by one parent and the negligence was that of the other.”
It is the negligence of the parents, both of whom are living, that is sought to be imputed in this case,
The brief of counsel for appellee is directed on this assignment only to the question of the sufficiency of imputed negligence as a defense. I take it that the ruling refusing permission to amend in this respect was based upon the court’s judgment that the defense offered, if true in fact, would not avail in law, for there seems to be no doubt under paragraph 422, Revised Statutes of 1913 (Civil Code), that appellants were entitled, as a matter of right, to file their amended answer any time before trial. The court’s discretion to allow or refuse the filing of an amended pleading can only be exercised after the trial has begun. It is true that ii often works a great inconvenience, and at times a hardship, on litigants to be served with an amended pleading on the eve of trial, but this fault in trial court procedure is one that only the law-making power can remedy.
In view of the disposition we have been compelled to make of the respective appeals, it is unnecessary to discuss the other assignments.
The judgment against McLean & Walsh, a partnership composed of Neal McLean and William D. Walsh, and Neal McLean and William D. Walsh as individuals, is reversed, and the cause remanded for a new trial.
ROSS, C. J., and FLANIGAN, J., concur.