(dissenting) :
Perhaps I strain too hard to affirm the superior court judge’s conclusion sweeping aside all debris and restoring the status quo ante and the right of both parties to a new start. It would seem that justice is better served in following this course.
Our Supreme Court has indicated that in any determination of whether a default judgment should be set aside the court is guided by equitable principles:
“These principles require that a defendant be given a fair opportunity to litigate a disputed obligation and also require that a plaintiff, who has, according to regular and legal proceedings, secured a judgment be protected against a violation of the rule which requires the sanctity and security of a valid judgment.” Coconino Pulp and Paper Company v. Marvin, 83 Ariz. 117, 120, 317 P.2d 550, 552 (1957).
When the circumstances are such, however, that it would be extremely unjust to enforce a default judgment, the equitable principle that a defendant should be allowed to defend on the merits may govern. Bateman v. McDonald, 94 Ariz. 327, 385 P.2d 208 (1963); Wellton-Mohawk Irr. and Drain. Dist. v. McDonald, 1 Ariz.App. 508, 509, 405 P.2d 299 (1965).
The trial court may have concluded that the defendants’ conduct in failing to appear or answer, was induced through the repeated admonitions “to get in touch with his insurance company” and to turn any papers over to the insurance company. The mistaken belief that everything was in the hands of the insurance company, coupled with the defendants’ lack of experience in litigation, may have led him to believe that he had no further obligation in the matter. Another factor which the trial court may have considered is the haste with which the default was entered.
In view of the strong public policy favoring trials on their merits, we, as an appellate court, should uphold the trial court’s ruling when the record discloses sufficient foundation in support thereof and the plaintiff has shown no detriment from the delay. The following language in Boyle v. Veterans Hauling Line, 29 Ill.App.2d 235, 172 N.E.2d 512, 87 A.L.R.2d 861 (1961) is pertinent:
“The question of whether or not a court should set aside a default should be so resolved as to do substantial justice between the parties and with the idea in mind of carrying out, insofar as it is possible, the determination of matters upon their merits. In resolving this problem, a court may well consider whether or not a defendant has a meritorious defense, and whether or not defendant’s delay in responding to the court’s command actually jeopardizes plaintiff’s basic position. But this should not be the only, nor necessarily, the determining factors. It seems to us that *597the overriding reason should be whether or not justice is being done. Justice will not be done if hurried defaults are allowed any more than if continuing delays .are permitted. But justice might, at times, require a default or a delay. What is just and proper must be determined by the facts of each case, not by a hard and fast rule applicable to all situations regardless of the outcome.”
The trial court resolved all doubts in favor of the defendants’ application, to accomplish a trial on the merits. I cannot say it abused its discretion. Gray v. Dillon, 97 Ariz. 16, 396 P.2d 251 (1964).
To establish that he had a meritorious defense, the husband stated in his affidavit that he was on a through street when the other vehicle involved in the collision, driven without headlights, ran a stop sign. The intersection was obstructed by a hedge and the defendant could not see the other, vehicle until it entered the intersection. Since he did not see the other vehicle in time, he had no opportunity to avoid the collision. I believe this to be a sufficient showing to support granting of the motion. The defendants were required to show no more than that the defense may be held to be meritorious on the final disposition by the case. Wilshire Mortgage Corporation v. Elmer Shelton Concrete Con., 97 Ariz. 65, 397 P.2d 50 (1964); Gray v. Dillon, supra.
The procedure designated by my colleagues may be of value, but I do not believe it should be followed here. In setting aside the default judgment, but not the default, responsibility, the first principle of tort law, is eliminated. In effect the parties are placed in a vehicle where the .steering wheel has been disconnected and they are left to wrestle for the throttle and the brake. How such a trial by ordeal emulates justice, I cannot fathom. We should affirm the trial court’s order setting aside the default and the default judgment.