Boies v. Cole

• Citation: 407 P.2d 917,99 Ariz. 198
• Decision Date: 17 November 1965
• Docket Number: No. 7530,7530
• Parties: L. C. BOIES, Sheriff of Maricopa County, Arizona, and Trinity Universal Insurance Company, a corporation, Appellants and Cross-Appellees, v. Eva Mae COLE, surviving spouse of Lewis Pearl Cole, deceased, and mother of Dolores May Nadias, Doris A. Cole, Charles W. Cole, and Lewis R. Cole, suing herein for and on behalf of herself and the abovenamed minor children, Appellees and Cross-Appellants.
• Court: Arizona Supreme Court

Page 917

407 P.2d 917

99 Ariz. 198

L. C. BOIES, Sheriff of Maricopa County, Arizona, and Trinity Universal Insurance Company, a corporation, Appellants and Cross-Appellees, v. Eva Mae COLE, surviving spouse of Lewis Pearl Cole, deceased, and mother of Dolores May Nadias, Doris A. Cole, Charles W. Cole, and Lewis R. Cole, suing herein for and on behalf of herself and the abovenamed minor children, Appellees and Cross-Appellants.

No. 7530.

Supreme Court of Arizona, In Banc.

Nov. 17, 1965.

Rehearing Denied Dec. 14, 1965.

Beer & Polley, Phoenix, for appellants and cross-appellees.

Moore & Moore, Mphoenix, for appellees and cross-appellants.

BERNSTEIN, Justice.

Appellants and cross appellees were defendants in a wrongful death action brought pursuant to A.R.S. § 12-613. They are the Sheriff of Maricopa County and the surety company that wrote his bond. Appellees and cross appellants, plaintiffs in the action, are the surviving spouse and children of the deceased husband and father. Plaintiffs received a verdict of $10,000 against both defendants. On motion for new trial the trial judge ordered a remittitur of $7,000 or in the alternative a new trial. Defendants appeal from the judgment and plaintiffs appeal from the order of remittitur. Tony Silvio, one of the defendants in the trial court and the person who fired the shot that killed decedent, did not appeal.

The trial judge by his order of remittitur approved the verdict of the jury as to liability. Consequently we must consider the evidence and the inferences to be drawn from the evidence in the light most favorable to the plaintiffs. LeRoy v. Phillips, 97 Ariz. 263, 399 P.2d 669.

For some years prior to November 15, 1957, the defendant Tony Silvio had been under contract with the Maricopa County Board of Supervisors to supply ambulance service for the Maricopa County Sheriff's office. The contract was let on public bids and provided for the furnishing of ambulance services. The ambulances were to answer calls 'at point of pickup' upon request of the Maricopa County Sheriff's office. The ambulance service included the 'handling of prisoners and detention cases and the movement of county patients from place to place on appointment basis or telephoned demand.' Silvio was paid on a time and mileage basis by the Board of Supervisors. He was paid in part out of the sheriff's budget.

On November 15, 1957, plaintiff wife of Lewis Pearl Cole filed a petition asserting her husband was dangerous to himself and to others and a detention order was issued by the Superior Court pursuant to A.R.S. § 36-504, now § 36-511, and delivered to the sheriff's office. About 6:30 that evening, a deputy sheriff was sent to the Cole home in Phoenix, Arizona. Silvio was handed the court order at the sheriff's office and went from there to the Coles where he met a deputy sheriff. Upon inquiry, it developed that Cole was not at home but had gone to a movie and was expected back in two or three hours. Silvio waited for Cole and twice called Sergeant Barnes who was in charge of the mental health department of the sheriff's office. He asked that he be allowed to pick up the deceased the next morning. He was told by Barnes to wait for Cole because 'we have got to pick him up tonight. He will kill his wife if you don't.' At about 10:00 p. m. Silvio returned to the Cole home as instructed by Barnes. Silvio advised Cole that he had come to take him into custody to be delivered to the County Hospital. Cole refused to go with Silvio and Silvio then attempted to take him by force by placing handcuffs on him. In the resulting struggle Cole was shot and killed by Silvio.

Appellant contend that Silvio was not a deputy sheriff of Maricopa County and this is the first question for our decision. Silvio answered calls at 'point of pickup'. He had been doing this for four years in cars on which was painted a sheriff's star. He testified:

'A Yes, sir, it sure did. It has a sheriff's star on each side of the car.

'Q That is the Sheriff of Maricopa County insignia on it?

'A That's right.

'Q How long had you used the car with that marking on it before Mr. Cole met his death?

'a Well, that car in particular I think I had used it about six months.

'Q Had you used other cars that had that marking on them?

'A Yes, I have. I had a Hudson.'

In the car he had a radio over which he received orders from the sheriff's department to 'pickup' people and he had received orders over the radio from the sheriff's department to go to the Cole house at other times:

'Q Yes. You said that you got a radio call on the air?

'A That's correct.

'Q Who did you get the radio call from?

'A From the Sheriff's office.'

He also used his radio on the night of the shooting to inform the sheriff's department of the incident.

Silvio was issued a deputy sheriff's card which read 'I L. C. Boies Sheriff of Maricopa County, State of Arizona do hereby constitute Tony Silvio my lawful deputy in all matters to act as if myself were present.' This card also had the words 'Ambulance Service' typed in. Taking this evidence in the light most favorable to the plaintiff he was authorized to act as a 'lawful deputy in all matters' as if he were the sheriff. The argument that his authorization was limited to 'ambulance service' The testimony shows that Silvio had been ordered by the sheriff's department to 'pickup' people for four years prior to the shooting in this case. Two of the definitions of 'pickup' in Websters Third New International Dictionary are:

is not material as he was performing that function.

Pickup '5b to find or come upon and take into custody [picked up by the police for questioning]

Pickup 'E. ARREST'

Taking, as we must, the definition of 'pickup' most favorable to the plaintiff, Silvio had been arresting people on order of the sheriff's department for four years.

In addition Silvio had in his possession a commitment order for the arrest of the deceased which could only be served by an officer of the law. A.R.S. § 36-504, now § 36-511. He testified:

'A So I walked up to Mr. Cole and I says 'You are Mr. Cole?' He said, 'Yes.' And I says, 'I have a court order from the Superior Court to take you to the County Hospital for medical examination.''

Viewing the evidence and the inferences to be drawn therefrom in the light most favorable to the plaintiff, defendant Silvio:

1. Was known by the sheriff to have a sheriff's star on his ambulance.

2. Had a radio in his car over which he was given instructions to pick up people.

3. Had a deputy sheriff's card issued by the sheriff under his hand authorizing him to make arrests as a deputy sheriff.

4. Had arrested people pursuant to court order on the instructions of Sergeant Barnes head of the Mental Health Department of the sheriff's office.

5. Arrested the deceased pursuant to court order and instructions from Sergeant Barnes.

In State v. Stago, 82 Ariz. 285, 288-289, 312 P.2d 160, we said:

'In the instant case, the Sheriff of Navajo County testified that he had appointed Dillon as a deputy sheriff and issued to him a card confirming the appointment. This is sufficient complicance with the statute that 'appointments shall be in writing.'

* * *

* * *

'As noted, the written appointment of Dillon as deputy sheriff was not recorded as is required by the statute. However, such statutes have often been construed as directory so that in any event his acts were valid as a de facto officer. 43 Am.Jur. 234, Public Officers, Section 483. It has been specifically held that the failure of a deputy sheriff to qualify by filing his appointment and oath of office, as required by the statute, did not deprive him of de facto status.'

Silvio's status as a deputy sheriff here is even more clear than that in Stago. In Stago the Board of Supervisors approved a bond. Here the Borad of Supervisors employed and paid Silvio in part out of the sheriff's budget for his services. The sheriff appointed Silvio a deputy sheriff, permitted the use of a sheriff's identification shield on his ambulance, delivered court orders for arrests into his hands, directed him to make pickups over the sheriff's radio and issued a deputy sheriff's card to him. This evidence is sufficient to support the jury's finding that Silvio was a deputy sheriff.

Defendants also contend that the trial judge erred in instructing the jury that they could assess punitive damages pursuant to A.R.S. § 12-613 in that the section does not provide for punitive damages in a wrongful death action; that punitive damages cannot be assessed against a sheriff arising from the conduct of his deputy unless authorized or participated in and that a surety on a sheriff's bond cannot be made to respond in punitive damages. Appellees contend that the instruction complained of did not allow the jury to assess punitive damages. 'In an action for wrongful death, the jury shall give such damages as it deems fair and just with reference to the injury resulting from the death to the surviving parties who may be entitled to recover, and also having regard to the mitigating or aggravating circumstances attending the wrongful act, neglect or default.'

A.R.S. § 12-613 reads in part:

The question for our determination here is whether the language of this statute makes allowance for punitive damages in wrongful death actions. In Downs v. Sulphur Springs Valley Electric Coop., 80 Ariz. 286, 297 P.2d 339, we held that the predecessor of this statute did not provide for punitive damages. We said:

'Since our statutes at one time expressly allowed examplary damages and thereafter it was eliminated, we must say there can be no implication that the present statute confers the right to this kind of damages in a death action. It shows a clear intention of the legislature to not allow the same.' 80 Ariz. at 292, 297 P.2d at 342-343.

And again:

'The general rule is that unless the statute expressly or by clear implication confers the right to such exemplary...