Layton v. Rocha

JENNINGS, Justice

(dissenting).

I dissent from the conclusions reached by the majority in regard to the trial .court’s failure to give the “must” instruction on contributory negligence.

Throughout these United States, “The plaintiff’s contributory negligence bars recovery against a defendant whose negligent .conduct would otherwise make him liable to the plaintiff for the harm sustained by him.” Restatement of Torts, § 467. The only exceptions are the comparative negligence states.

The majority of the members of this Court in substance hold that Arizona is a special exception to this rule; that by virtue of our constitutional requirement, conduct which “must” bar recovery by a plaintiff . everywhere else in the United States, only “may” do so here. While holding to this doctrine the majority opinion recites a preferred form of instruction, i. e., in the event of contributory negligence the jury should find for the defendant. That the majority can espouse both views is a legal paradox. If the Court means, as I think it does, to usher the rule of comparative negligence into common law negligence actions as well as employer liability actions by permitting the “may” instruction, it is incongruous to sanction the “should” instruction. For there will be many cases in which plaintiffs are only slightly negligent and plainly, under the principles of comparative negligence, the jury should not find for the defendant.

Nevertheless this dissent is directed to the “may” instruction. This view is inconsistent with the common law concept of contributory negligence, our own constitution, the intent of our constitutional framers, and our own case history.

Although a comprehensive review of the history of A.R.S.Const. Art. 18, Sec. 5, would be too extensive for our purposes herein, suffice it to say that the section was taken from an identical provision in the Oklahoma Constitution. Dickinson v. Cole, 74 Okl. 79 , 177 P. 570 . Although the section originated as a proposition relative to Employers Liability law this Court early held in Davis v. Boggs, 22 Ariz. 497 , 199 P. 116 , 120 that the constitutional provision was not *374 restricted to the employer-employee relationship for the reason that the language was “too broad and comprehensive to admit of such a narrow construction.” However, the legal effect of contributory negligence in Arizona common law negligence actions is definitely distinguishable from that of contributory negligence in Arizona Employers’ Liability suits. This is readily gleaned from the cases, e. g., in Feffer v. Bowman, 90 Ariz. 48 , 365 P.2d 472, 474 , we find the following:

“A plaintiff in a common law negligence action against his employer enjoys by virtue of this state’s constitution freedom from the strictures of the fellow servant doctrine and the assurance that the defenses of contributory negligence and assumption of risk shall in all cases be jury questions. But his counterpart in an Employers’ Liability suit benefits from several additional substantive and procedural advantages. One of these is the doctrine of comparative negligence—‘The fact that the employee was guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to the employee.’ A.R.S. § 23-806 (1956).”

If then comparative negligence is a doctrine peculiar in this state to Employers’ Liability suits, as the instant case is not of that nature the doctrine should not apply.

A.R.S.Const. Art. 18, § 5 guarantees litigants the right to have the jury determine-the existence or nonexistence of contributory negligence. It does not give the jury-the power to arbitrarily set forth the legal consequences of contributory negligence.. The majority opinion cited Dennis v. Stukey, 37 Ariz. 299 , 294 P. 276 , in support, of the following statement:

“ * * * Even though the undisputed evidence shows that plaintiff’s negligence did as a fact contribute to the injury the jury may find in favor of the plaintiff and this court cannot direct a new trial. * * * In other words, the court should advise the jury what, under the law, amounts to contributory negligence but it is deprived of the power to instruct the jury as to what its verdict must be. * * * ”

Actually Dennis v. Stukey, supra, referring to Inspirational Consolidated Copper Co. v. Conwell, 21 Ariz. 480 , 190 P. 88 stated concerning the above matter:

“ * * * we held that although the uncontradicted evidence showed plaintiff had assumed the risk, * * * the power or duty finally and conclusively to settle the question of contributory negligence was transferred from the-court to the jury as ‘the sole arbiter of the existence or nonexistence of contributory negligence * * * in all actions for personal injuries’, and that *375 the verdict was conclusive upon the court. * * * ”

In essence the Dennis v. Stukey case merely amplified A.R..S.Const. Art. 18, § 5 as to whether under a given set of facts contributory negligence exists. The question ■“what then” was not answered. That is, the Court did not say that the jury then had the power to arbitrarily set forth the legal consequences of contributory negligence after it had determined the existence of contributory negligence. This power belongs to the court and to the court alone.

In the case of Campbell v. English, 56 Ariz. 549 , 110 P.2d 219, 221 , this Court said:

“We have passed upon the meaning and effect of this constitutional provision in innumerable cases and have held, in effect, that when the issue is one of contributory negligence, that is to say, when there is evidence from which a jury could find, under the rules above set forth, that the defendant was guilty of negligence and one of the defenses is that plaintiff also was guilty of negligence, the constitution takes away from either the trial or appellate court the right to determine whether, as a matter of either law or fact, the evidence shows such contributory negligence to exist, and leaves the question both of law and fact on that particular issue to the decision of the jury. * * ” (Emphasis added.)

Here again the court only discussed the question “whether contributory negligence”.

As we stated in Alabam Freight Lines v. Phoenix Bakery, 64 Ariz. 101 , 166 P.2d 816 , 822:

“The constitutional provision was not enacted for the purpose of changing the common law as to the application of the doctrine. Its evident purpose was to modify the common law by making the jury, rather than the court, the sole arbiter of the existence or the nonexistence of contributory negligence. * * * ”

If the application of the common law doctrine is still in force in this state (subject to the above-mentioned modification) as stated in Alabam Freight Lines, supra, then a determination of contributory negligence by the jury obligates them to find for the defendant and they should be so instructed.

An example of this type of instruction was discussed by this Court in the case of General Petroleum Corp. v. Barker, 77 Ariz. 235 , 269 P.2d 729, 733 , as follows:

“ * * * Defendant’s No. 5 was an instruction on contributory negligence, wherein the jury was told that if this defense were established to their satisfaction it would be a bar to plaintiffs’ recovery. The instruction is legally correct * *

*376 Certainly when that “satisfaction” is obtained the words “may find for the defendant” do not set forth the legal consequences of contributory negligence. These permissive words are a far cry from the definite legal duty placed upon the jury to find for defendant.

UDALL, V. C. J., concurs in this dissent.