Dockery v. Central Arizona Light & Power Co.

• Decision Date: 02 May 1935
• Docket Number: Civil 3492
• Citation: 45 Ariz. 434,45 P.2d 656
• Parties: LOUISE MILLER DOCKERY, in Her Own Right, LAWRENCE MILLER, ELWYN MILLER and RICHARD MILLER, Minors, By and Through LOUISE MILLER DOCKERY, Their Guardian ad Litem, Appellants, v. CENTRAL ARIZONA LIGHT & POWER COMPANY, a Corporation, and FIDELITY & DEPOSIT COMPANY OF MARYLAND, a Corporation, Appellees
• Court: Arizona Supreme Court

45 P.2d 656

45 Ariz. 434

LOUISE MILLER DOCKERY, in Her Own Right, LAWRENCE MILLER, ELWYN MILLER and RICHARD MILLER, Minors, By and Through LOUISE MILLER DOCKERY, Their Guardian ad Litem, Appellants, v. CENTRAL ARIZONA LIGHT & POWER COMPANY, a Corporation, and FIDELITY & DEPOSIT COMPANY OF MARYLAND, a Corporation, Appellees

Civil No. 3492

Supreme Court of Arizona

May 2, 1935

APPEAL from a judgment of the Superior Court of the County of Maricopa. C. C. Faires, Judge. Judgment affirmed.

Mr. L C. McNabb and Mr. Allan K. Perry, for Appellants.

Messrs Armstrong, Kramer, Morrison & Roche, for Appellee Central Arizona Light & Power Company.

Messrs Baker & Whitney and Mr. Lawrence L. Howe, for Appellee Fidelity & Deposit Company of Maryland.

OPINION

LOCKWOOD, C.J.

Louise Miller Dockery, in her own right, and Lawrence Miller, Elwyn Miller and Richard Miller, through Louise Miller Dockery, as their guardian ad litem, brought suit against Central Arizona Light & Power Company, a corporation, hereinafter called the company, Jane Kistler, hereinafter called the administratrix, and her official bondsman, Fidelity & Deposit Company of Maryland, a corporation. An original complaint and a first, second and third amended complaint were filed. Various demurrers and motions were interposed to each of the complaints, but we need consider only the demurrers to the third amended complaint. After they were presented, the following order was entered: "It is hereby ordered that the demurrers, general and special, are hereby sustained without leave to amend, on the ground that the Third Amended Complaint constitutes and is a collateral attack upon the Judgment of the Probate Court referred to in said Amended Complaint," and thereafter a judgment was rendered dismissing the action, and from the judgment this appeal was taken.

There are four assignment of error which raise two questions of law, the first being whether the court erred in sustaining the demurrer without leave to amend, and the second whether the complaint constituted a collateral attack upon a judgment.

We consider the first question. Section 3740, Revised Code 1928, reads as follows:

"§ 3740. Amendments. All pleadings may upon leave of the court be amended at any time, upon such terms as the court may prescribe, or the same may be amended without such leave, not less than five days before trial, by serving the adverse party with a copy of such amended pleading."

And it is contended that this confers upon a plaintiff the absolute right to amend a complaint when a demurrer is sustained. In the case of Miller v. Arizona Bank et al., ante, p. 297, 43 P.2d 518, just decided, we held that under this section the right of filing new pleadings was not absolute, and that, when a demurrer had been sustained and an amended complaint was tendered which was the same in legal effect as the one to which the demurrer had just been sustained, it was not, within the meaning of the statute, an "amended pleading," and that the court might proceed to a judgment of dismissal, disregarding the new complaint, but expressly reserved the question as to whether the statute applied only to voluntary amendments made by the parties, or also to amendments made after a demurrer is sustained. If the complaint shows on its face it cannot be amended to meet the defect, it would be a futile thing to allow an attempt to amend. If, on the other hand, it is susceptible of amendment, after three unsuccessful attempts to state a cause of action it would seem that plaintiff should at least tender the proposed amendment to the court and ask to have the order denying the right to amend vacated, or he will be deemed to have waived any rights of amendment he might have. Any other holding would make a travesty of pleading. We hold, therefore, that, if the defect in the complaint, which causes it to be demurrable, is of such a nature that it shows on its face that it cannot be amended to state a cause of action, section 3740, supra, is not applicable, and, if an amendment can be made to meet the defect, the party must ask leave to tender it, or he will be deemed to have waived any rights he might have had. Since the record does not show such a tender was made, there is no reversible error in the order denying leave to amend.

The demurrers were sustained on the ground that the complaint shows the action is a collateral attack upon a judgment. The questions, therefore, are: (a) Does it attempt to make a collateral attack upon a judgment? and (b) are the circumstances alleged in the complaint such that an attack of this nature may be made?

The complaint itself is composed of some twenty-nine typewritten pages, and we therefore do not attempt to set it forth in full, but merely summarize so much of it as we consider necessary in order to consider properly the appeal. It is of course true that, when the sustaining of a demurrer is under consideration, we must, for the purpose of the appeal, assume the facts stated in the complaint to be true. This rule, however, only applies to such facts as are well pleaded, and does not apply to conclusions of law or inferences which might be drawn from, but are not necessarily implied by, the actual facts pleaded.

The complaint contains four causes of action, but they are of such a nature that the principles of law applicable to one are unquestionably applicable to the other three, so we summarize only the first one. After alleging that the plaintiffs are the sole heirs at law and next of kin of Richard L. Miller, Edna Frances Miller, Samuel Wesley Miller, and Harold Eugene Miller, deceased, and that there is now no administrator or executor of the estates of the various parties deceased, the complaint stated that Richard L. Miller and Edna Frances Miller were respectively father and mother of plaintiffs and of Samuel, Wesley and Harold Eugene Miller, and on or about August 21, 1928, were living, together with their children, near the city of Phoenix. At that time defendant company was engaged in the transmission of electric power by means of wires strung on poles, some of which wires passed near the Miller residence. The company had negligently failed to provide proper cut-offs for its power lines aforesaid in case the wires became dislocated, and, following a heavy storm, a certain power wire carrying 4,000 volts of electricity became loose from its fastenings and fell into the Millers' yard. The ground of the yard had become very wet as a result of the storm, so that, when the wire came in contact with it, the ground became heavily charged with electricity. Richard L. Miller, about 10 o'clock that night, left his house intending to go to work, and stepped out upon the wet earth attempting to get into his automobile which was parked in the yard, and an electric current was discharged into his body from the wet ground and wire aforesaid, which instantly killed him. His wife and two minor children were also killed about the same time and in the same manner. The company believed that it was liable by reason of such negligence in heavy damages to the estate of the decedents, and therefore attempted to evade its liability in the following manner: Defendant Kistler was appointed by the superior court of Maricopa county as the administratrix of the estates of the various decedents and duly gave bond therefor. In the meantime the daily press of Phoenix appealed to the general public for funds for relief of the children so orphaned, stating that whatever was contributed by the public would go directly to the children and not to the estates of decedents. The sum of 4,455.75 was contributed by the public, and the Kiwanis Club of Phoenix accepted the duty of acting as trustee of said fund for the benefit of the children. The officers of the company and its attorney were prominent members of the Kiwanis Club, and by their influence secured joint control of this fund for which the club was acting as trustee, and secured the passage of a resolution disposing of the fund through the club, according to a plan suggested by the president of the company. The administratrix and her attorney agreed to accept $8,500 from the company in settlement for the deaths of all the decedents, as aforesaid. The administratrix further agreed that the company should use the funds collected by the Kiwanis Club to purchase an annuity policy for the three youngest of the plaintiffs herein, and should deliver said policy to the administratrix as part of the payment under the settlement. It is further alleged that all of the parties knew that the administratrix and her lawyer would draw fees as a result of the aforesaid action on the basis of various moneys which could not become lawfully a part of the estate of the deceased persons.

Thereafter the administratrix, her attorney and the defendant company appeared before the probate court and secured an order from the court approving the settlement, as aforesaid, the petition for the order showing on its face that the company was to use funds belonging to the minors, to wit, the annuity, to pay off a claim which the estates of the deceased persons had against it. As a result of this agreement between the administratrix and her attorney and the company and the Kiwanis Club, the funds held by the club were used to purchase an annuity policy, as aforesaid, and the policy was delivered to the administratrix, and was accounted for by her as a part of the estate of the four decedents as a result of the settlement with the company. There are many general allegations that all the aforesaid conduct was fraudulent, wrongful, unlawful and collusive, but we think what we have said states fairly and fully all the allegations of fact contained in the complaint. The prayer for relief...