Bowslaugh v. Bowslaugh
| Decision Date | 19 November 1979 |
| Docket Number | No. 14545-PR,14545-PR |
| Citation | 126 Ariz. 517,617 P.2d 25 |
| Parties | Toni M. BOWSLAUGH, as surviving mother of Maureen and Karen Bowslaugh, deceased, for and on behalf of herself, Individually, and on behalf of Jeanne Bowslaugh and Laura Bowslaugh, surviving sisters of Maureen and Karen Bowslaugh, deceased, Appellants, v. Alan P. BOWSLAUGH, Appellee. |
| Court | Arizona Supreme Court |
Treon, Warnicke, Dann & Roush, P. A. by B. Michael Dann and Michael J. Valder, Phoenix, for appellants.
Shimmel, Hill, Bishop & Gruender, P. C. by Charles A. Finch and Susan R. Bolton, Phoenix, for appellee.
Appellee Alan P. Bowslaugh petitioned this court for review of the Court of Appeals decision in Bowslaugh v. Bowslaugh, 126 Ariz. 520, 617 P.2d 28 (App.1979). We take jurisdiction under A.R.S. § 12-120.24 and Rules of Civil Appellate Procedure, rule 23, and hereby vacate the opinion of the Court of Appeals.
Appellant Toni M. Bowslaugh sued her husband under A.R.S. § 12-612, alleging that negligence on his part resulted in a fire that took the lives of two of their four daughters. The trial court held that appellant could not sue her husband due to the doctrine of interspousal immunity. Schwartz v. Schwartz, 103 Ariz. 562, 447 P.2d 254 (1968).
Appellant then moved to amend the complaint to allow the personal representative of the decedents' estates to sue appellee on behalf of the estates. Strictly construing the list of beneficiaries in A.R.S. § 12-612(A), the trial court refused to allow the amendment.
Since we agree that the wife is barred from recovery for the negligence of her husband due to the doctrine of interspousal immunity, we need decide a single question. When either or both parents survive but are ineligible beneficiaries, may the personal representative be allowed to sue in behalf of the decedents' estates?
The statute in question, A.R.S. § 12-612(A), reads as follows:
"An action for wrongful death shall be brought by and in the name of the surviving husband and wife or personal representative of the deceased person for and on behalf of the surviving husband or wife, children or parents, or if none of these survive, on behalf of the decedent's estate." (Emphasis added.)
In Solomon v. Harman, 107 Ariz. 426, 430-31, 489 P.2d 236, 240-41 (1971), we had occasion to interpret this same subsection:
"The estate, then, is a beneficiary only if none of those named beneficiaries survive. The result of the 1956 amendment was to provide alternative benefits to either the named beneficiaries or the estate. As we previously stated:
In Re Estate of Milliman, 101 Ariz. 54, 59, 415 P.2d 877, 882 (1966).
4. or if none of the above survive the estate of the decedent.
When dealing with a legislative enactment clear on its face, we must construe the words according to their ordinary meaning unless it appears from context or otherwise that a different meaning should control. State v. Arnett, 119 Ariz. 38, 579 P.2d 542 (1978); A.R.S. § 1-213.
To adopt appellant's position would require that we change the statute by judicial fiat to read as follows:
"An action for wrongful death shall be brought by and in the name of the surviving husband or wife or...
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