Lueck v. Superior Court In and For Cochise County

Decision Date17 July 1969
Docket NumberCA-CIV,No. 2,2
Citation457 P.2d 348,10 Ariz.App. 161
PartiesMelanie LUECK, surviving widow of William T. Lueck, deceased, and William C. Lueck and Ada D. Lueck, surviving parents of William T. Lueck, deceased, Petitioners, v. The SUPERIOR COURT of the State of Arizona, IN AND FOR the COUNTY OF COCHISE, and the Honorable Lloyd C. Helm, Judge, and Southern Pacific Company, a corporation, Real Parties in Interest, Respondents. 697.
CourtArizona Court of Appeals

Barber & Haralson, by Dale Haralson, Tucson, for petitioners.

Bilby, Thompson, Shoenhair & Warnock, by Richard M. Bilby and T. Scott Higgins, Tucson, for respondent, Southern Pacific Co.

MOLLOY, Chief Judge.

This court has issued a writ of certiorari to review the propriety of a denial of a motion to file an amended complaint in a wrongful death action. The motion seeks to add the surviving parents of the deceased as additional named beneficiaries to a complaint filed by the surviving widow of the deceased for herself and two surviving minor children. The trial court denied the motion to amend because it was of the opinion that surviving parents are not heirs of a deceased child when there is either a surviving spouse or a surviving child and that, hence, they are not beneficiaries under our Wrongful Death Act.

We are presented purely with a problem of statutory construction. At common law there was no right of action for wrongful death. Estate of Lister, 22 Ariz. 185, 187, 195 P. 1113 (1921); Baker v. Bolton, 1 Camp. 493, 170 Eng.Rep. 1033 (1808); and See Malone, The Genesis of Wrongful Death, 17 Stan.L.Rev. 1043 (1965). The controlling statutes in this state are:

' § 12--611.

'When death of a person is caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action to recover damages in respect thereof, then, and in every such case, the person who or the corporation which would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death was caused under such circumstances as amount in law to murder in the first or second degree or manslaughter.'

' § 12--612.

'A. An action for wrongful death shall be brought by and in the name of the surviving husband or 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.

'B. The father, or in the case of his death or desertion of his family, the mother, may maintain the action for death of a child, and the guardian for death of his ward.

'C. The amount recovered in an action for wrongful death shall be distribted to the parties provided for in subsection A and in the proportions provided by law for distribution of personal estate left by persons dying intestate.

'D. The term 'personal representative' as used in this section shall include any person to whom letters testamentary or of administration are granted by competent authority under the laws of this or any other state. The action for wrongful death may be maintained by any such personal representative without issuance of further letters, or other requirement or authorization of law.'

' § 12--613.

'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. The amount recovered in such action shall not be subject to debts or liabilites of the deceased, unless the action is brought on behalf of the dececdent's estate.'

In its response to the petition for special relief filed in this court, the Southern Pacific Company has taken the written position 1 that the above-quoted provision that damages '* * * shall be Distributed to the parties provided for in subsection A and in the proportions provided by law for distribution of personal estate left by persons dying intestate' is controlling.

We have two different statutes pertaining to intestate succession of personal property when there is a surviving spouse. The first, A.R.S. § 14--201, applies to Separate estate, and under it personal property is distributed two thirds to the surviving children and one third to the surviving spouse. The other, § 14--203, applies to Community property. Under it, one half of the property goes to the surviving spouse and the other half to surviving children, if any. Under either statute, these parents would take nothing as heirs of their deceased son.

The Wrongful Death Act, as any other legislation, must be construed so as to relate the component parts to one another, and give all language a reasonble meaning if possible. Stuart v. Winslow Elementary School District No. 1, 100 Ariz. 375, 414 P.2d 976 (1966). At time of oral argument in this court, the respondent Southern Pacific Company acknowledged that there was an inconsistency between the provisions of A.R.S. § 12--612, subsec. D, Supra, calling for distribution according to the laws of intestate succession, and the provision of § 12--613 that '* * * 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 * * *'

In Boies v. Cole, 99 Ariz. 198, 203, 407 P.2d 917, 920 (1965), our Supreme Court construed this last provision:

'Thus, the compensation which is to be awarded under the 1956 amendment (the Wrongful Death Act as it is quoted Supra) is Measured by the injury to the surviving parties. The measure of damages is no longer limited to pecuniary damages, but also includes allowance for such things as loss of companionship, comfort and guidance.' (Emphasis added)

99 Ariz. at 203, 407 P.2d at 920.

This court also sees an inconsistency between these provisions. It is hard to believe that the legislature intended for the jury to give to the surviving beneficiaries damages measured by the respective injuries sustained by a reason of a wrongful death, and then to give these damages to those who would take according to the laws of intestate succession. On can call to mind an infinite variety of situations which demonstrate the absurdity of such a construction. If, for instance, a deceased left ten children, with one being an infant totally dependent upon the deceased, and the other children being adults with no financial dependency upon the deceased, a literal reading of the subject statutes would require the court to solemnly assess the damage for the minor child and then award nine tenths of this amount to persons who suffered no substantial loss. The net effect of any such construction is to cause some persons to profit from another's suffering.

Such a construction should not be afforded unless there is no other reasonble interpretation. Our Supreme Court has indicated that, when literal reading of a statute results in an '* * * absurd and indicrous situation,' the literal reading of a statute must yield to a more reasonble interpretation. Mayor & Common Council of City of Prescott v. Randall, 67 Ariz. 369, 377, 196 P.2d 477, 482 (1948). In the Randall case, the following provision in the 1939 Code was held to have bee impliedly repealed:

'In addition to the license, taxes, and regulations herein provided for, incorporated cities and towns, shall have the power to license, tax, and regulate the manufacture, sale, possession, and disposal of spirituous liquors, within their corporated limits, providing the foregoing provisions shall not apply to wholesalers licensed under section 5 (§ 72--110); provided this section shall not be construed to give to incorporated cities and towns, the power to prohibit the manufacture, sale, and disposal of intoxicating liquors.'

A.C.A.1939 § 72--112.

This section, our Supreme Court observed, was a carry-over from the 1935 Liquor Code, as established by Ch. 46 of the Laws of 1935, in which Act the abovequoted provision constituted § 7. When the 1939 Liquor Code was adopted by Ch. 64 of the Laws of 1939, thee was no amendment made to this particular section of the code, though most of the other provisions were specifically amended. Nevertheless, our Supreme Court could see no reasonble way to give the carry-over statute efficacy, in view of the provisions of the 1939 Act vesting control of the dispensation of spirituous liquors in a State Department of Liquor Licenses and Controls.

In the statutes now before this court for construction, the language, which by literal construction leads to foolish results, is a carry-over from previous law. 2 Under the old law, 3 recovery was for the benefit of the decedent's estate and was assessed solely upon the basis of probable accumulations in that estate. Arizona Binghampton Copper Co. v. Dickson, 22 Ariz. 163, 195 P. 538, 44 A.L.R. 881 (1921); and See Downs v. Sulphur Springs Valley Electric Coop., 80 Ariz. 286, 297 P.2d 339 (1956). As to such damages, the provision for intestate succession is understandable. Under our new Act, it could still be applied with rationality to a recovery for punitive damages, See Boies v. Cole, Supra, or when there are no survivors of the designated classes, See A.R.S. § 12--612, subsec. A, Supra. But to apply it to the distribution of damages awarded for actual injury does violence to concepts of fundamental justice.

The unreasonableness of distributing damages computed on actual loss to the survivors according to the laws of intestate succession has been noted by many courts, See Annots., 14 A.L.R. 516, 520, supplemented 112 A.L.R. 30, 32, and supplemented 171 A.L.R. 204, 206. Many of these courts have nevertheless distributed such damage...

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6 cases
  • Reed v. Frey
    • United States
    • Arizona Court of Appeals
    • September 4, 1969
    ...are beneficiaries under our Wrongful Death Act, even though the parent is not an heir under our intestacy laws. Lueck v. Superior Court, 10 Ariz.App. 161, 457 P.2d 348 (1969). We are here faced with a correlative problem relating to the standing of the parent to bring a separate As we point......
  • City of Tucson v. Wondergem
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    • September 8, 1969
    ...with correlative provisions determining the classes of survivors selected as beneficiaries under this Act. See Lueck v. Superior Court, 10 Ariz.App. 161, 457 P.2d 348 (1969), and Reed v. Frey, 10 Ariz.App. 292, 458 P.2d 386 If these decisions establish nothing more, they at least indicate t......
  • Lueck v. Superior Court In and For Cochise County
    • United States
    • Arizona Supreme Court
    • May 12, 1970
    ...of a decision of Division II of the Court of Appeals, which petition we granted. The decision of the Court of Appeals in 10 Ariz.App. 161, 457 P.2d 348 (1969) is The Court of Appeals granted a writ of certiorari to review the trial court's denial of a motion to file an amended complaint in ......
  • City of Phoenix v. Whiting
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    ...was modified in other particulars by a supplemental opinion reported in 2 Ariz.App. 348, 409 P.2d 64 (1966) and Lueck v. Superior Court, 10 Ariz.App. 161, 457 P.2d 348, (decided July 17, The claim arose out of the fall of a tree which struck the motor vehicle Mrs. Whiting was driving. Mrs. ......
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