Bowslaugh v. Bowslaugh, 14545-PR

Citation126 Ariz. 517,617 P.2d 25
Decision Date19 November 1979
Docket NumberNo. 14545-PR,14545-PR
PartiesToni 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.
CourtSupreme Court of Arizona

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.

HAYS, Justice.

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:

'There are two distinct proceedings under our wrongful-death statutes. One is a claim for damages to the survivors; the other is for damages to the estate.' In Re Estate of Milliman, 101 Ariz. 54, 59, 415 P.2d 877, 882 (1966).

"Therefore, an action for wrongful death may be brought by a proper party for and on behalf of the following only:

1. surviving husband or wife,

2. children,

3. parents,

4. or if none of the above survive the estate of the decedent.

"It is clear that the legislature intended that as long as there existed a surviving spouse, child or parent, then brothers, sisters, cousins, ... and others should not recover any amount or to have their loss be a measure of the damages for the wrongful death.

"Such is the rationale assumed in our recognition of the return to the 1887 members-of-the-family recovery noted in Milliman, supra. Such distinctions between classes we find to be both cognizable and rationally considered by the legislature." (Emphasis added.)

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 personal representative...

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19 cases
  • Summerfield v. Superior Court In and For Maricopa County
    • United States
    • Arizona Supreme Court
    • April 24, 1985
    ...principle and policy must play a role in the interpretation of this statute, we do not retreat from the concept expressed in Bowslaugh v. Bowslaugh, 126 Ariz. 517, 617 P.2d 25 (1979). Special legislative intent may control where the action arises from statute, where the legislature's intent......
  • James v. Phoenix General Hosp., Inc., s. CV
    • United States
    • Arizona Supreme Court
    • October 1, 1987
    ...Earlier Arizona cases consistently held that the cause of action for wrongful death was statutorily created. See Bowslaugh v. Bowslaugh, 126 Ariz. 517, 617 P.2d 25 (1979); Huebner v. Deuchle, 109 Ariz. 549, 514 P.2d 470 (1973); Halenar v. Superior Court, 109 Ariz. 27, 504 P.2d 928 (1972). T......
  • Knauss v. DND Neffson Co.
    • United States
    • Arizona Court of Appeals
    • November 6, 1997
    ...the plain language of the statute, leaving any deficiencies or inequities to be corrected by the legislature." Bowslaugh v. Bowslaugh, 126 Ariz. 517, 519, 617 P.2d 25, 27 (1979). Accordingly, plaintiff is entitled to maintain this action as decedent's surviving For the reasons stated above,......
  • Walsh v. Chartered
    • United States
    • Arizona Court of Appeals
    • May 26, 2011
    ...500, 503 (1994). This applies with particular force here because a wrongful death claim is statutory in nature. Bowslaugh v. Bowslaugh, 126 Ariz. 517, 519, 617 P.2d 25, 27 (1979) (“A cause of action for wrongful death is purely statutory in origin and we must adhere to the plain language of......
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