Safeway Stores, Inc. v. Ramirez

• Decision Date: 28 December 1965
• Docket Number: No. 7619,7619
• Citation: 409 P.2d 292,99 Ariz. 372
• Parties: SAFEWAY STORES, INC., a corporation doing business in the State of Arizona, and Antonio Carmona and Herlinda Carmona, his wife, Appellants, v. Geronimo RAMIREZ and Marie Ramirez, his wife, Appellees. PR.
• Court: Arizona Supreme Court

Page 292

409 P.2d 292

99 Ariz. 372

SAFEWAY STORES, INC., a corporation doing business in the State of Arizona, and Antonio Carmona and Herlinda Carmona, his wife, Appellants, v. Geronimo RAMIREZ and Marie Ramirez, his wife, Appellees.

No. 7619 PR.

Supreme Court of Arizona, In Banc.

Dec. 28, 1965.

Darnell, Holesapple, McFall & Spaid, Tucson, by Richard Briney, for appellants.

John Pintek, Bisbee, for appellees.

McFARLAND, Justice:

Plaintiffs, Geronimo and Marie Ramirez, husband and wife, brought suit against defendants Safeway Stores, Inc., a corporation doing business in Arizona, and Antonio Carmona and Herlinda Carmona, his wife, for injuries which they alleged Marie Ramirez sustained on October 29, 1960, while she shopped in the produce section of the Safeway store in Douglas, Arizona, when she slipped and fell to the floor causing injuries to herself about the neck, shoulders, and arms. Plaintiffs alleged that the fall occurred because defendants negligently and carelessly caused and permitted the floor--particularly the aisle upon which plaintiff was walking--to be strewn with articles of food and other substances, thereby causing the floor to become slippery and treacherous. Shortly after the accident, the assistant manager made out an accident report which was forwarded to the Phoenix central office.

Plaintiffs, in their complaint, which was filed on January 23, 1961, alleged that the true names of John Doe and Jane Doe, his wife, and Richard Roe and Regina Roe, his wife, were presently unknown to plaintiffs, and that upon ascertainment of such true names 'will upon leave granted by this court cause the necessary substitutions to be made.'

Plaintiffs further allege in their complaint, naming as defendants Safeway Stores, Inc., a corporation doing business in the State of Arizona; and John Doe and Jane Doe, his wife; and Richard Roe and Regina Roe, his wife, that defendants John Doe I and John Doe II (There is no John Doe II named in the caption of the complaint.) were in the employ of defendant Safeway Stores, Inc., in their respective capacities as manager and clerk, and that they were acting in furtherance of defendant Safeway Stores, Inc., and were conducting themselves within the scope of their employment.

Default was entered against defendants on February 21, 1961, and judgment was filed on February 23, 1961, against defendants in the sum of $15,000 and costs. On March 27, 1961, defendants and each of them filed a motion to set aside the default. The motion was presented on the evidence introduced at the hearing and supporting affidavits of defendants, also on plaintiffs' answer with supporting affidavits. The court denied the motion. From this denial of the motion to set aside the default and to vacate the default judgment, defendants appeal.

The Court of Appeals, Division 2, affirmed the decision of the lower court in refusing to set aside the default and the default judgment. Safeway Stores, Inc., v. Ramirez, 1 Ariz.App. 117, 400 P.2d 125. This court granted defendants' motion for review in order that we might further examine the question of the refusal of the superior court to set aside the default and default judgment as to Antonio Carmona and Herlinda Carmona.

The issues presented by defendants are whether the trial judge committed reversible error in denying their motion to set aside the default and to vacate the default judgment against them, which motion was based upon the following grounds:

(1) The default judgment was entered without personal service of defendants and each of them, and for this reason the service of process was insufficient, as set forth in assignments three, four, and five; and

(2) The default and default judgment were taken against defendants, and each of them, through their mistake, inadvertence, surprise, and excusable neglect, and that there was good cause for setting aside the default and the default judgment, and that there was a meritorious defense to the action, as set forth in assignments of error numbers one and two.

We shall only consider assignments four and five which present the question of whether there was service of process upon defendants Carmona sufficient to give the court jurisdiction over them.

Assignments four and five present the question of whether the proper steps were taken, including service of summons, to give the court jurisdiction over Antonio Carmona and Herlinda Carmona. Rule 10(f), Rules of Civil Procedure, 16 A.R.S., provides:

'10(f) Designation of defendant. When the name of the defendant is unknown to the plaintiff, the defendant may be designated in the pleadings or proceeding by any name. When his true name is discovered the pleading or proceeding may be amended accordingly.'

Plaintiffs in their complaint allege that the Does and Roes are unknown to them. They also state in their complaint that they will comply with the remainder of the provisions of Rule 10(f) wherein they allege 'upon ascertainment of such true names will, upon leave granted by this court, cause the necessary substitution to be made.' In determining whether the service was sufficient and whether plaintiffs complied with this rule, it is necessary that we examine the facts in regard to service of Antonio Carmona and Herlinda Carmona. Antonio Carmona, in his affidavit in support of his motion to set aside the default and to vacate the default judgment, and in his testimony, stated that the deputy sheriff, C. T. Benson, Sr., first came to the store and attempted to serve him with a copy of the complaint but that he refused to accept the papers, that when the deputy sheriff returned later (which Deputy Benson testified to be January 31st) he did not know whether he should accept the papers, but did accept them. Antonio Carmona testified in regard to what was said at the time of the service by Deputy Benson as follows:

'A Well, he came to the store and he had a summons, some papers in his hands, and he approached me and I wouldn't accept them because they were * * * I didn't feel that I was qualified to accept those papers.

* * *

* * *

'Q All right now, at that time, Mr. Carmona, did you read or study or look over any papers that he had with him?

'A I glanced over the papers that he had in his hand.

'Q Did you know what they were or do you know what they were after you glanced over them?

'A I know they're a summons and complaint.

'Q Did he discuss with you who he wanted to serve those papers on?

'A Well, he said that, yes, that they're for Dafeway and that's what he said.

'Q After you refused them, then what took place?

'A Well, he left.

'Q Did you then have subsequent or after discussions with him about the same subject?

'A Yes, when he brought them back again. He brought the papers again.

* * *

* * *

'Q All right sir, would you state the conversation with Mr. Benson concerning the papers on or about January 27th, 1961, which would have been the second visit with him?

'A Well, he said that he was taking the papers back and that my name and my wife's name had been written on the back of it and now I could accept them. I still didn't know whether I should accept them or not but I took them anyway.

'Q Did he, at that time, discuss with you or you with him, who was being sued in this lawsuit?

'MR. PINTEK: Your Honor, I'm going to * * * no, no objection.

'WITNESS: Well, in generalities we talked about Safeway being sued, yes, and that's about all and nothing was pointed out to me that I was being sued.

'MR. BRINEY: Did he or did he not state to you that you, yourself, were the defendant in the case and that your wife was?

'A No.'

The deputy sheriff Benson, in his affidavit, stated that Antonio Carmona did decline to accept the complaint and summons on the 27th of January, but that he left a copy for defendant and did advise Carmona to read the same and to take it home and study it, that he thereafter, on the 31st day of January, 1961, 'did return to the store and discuss the matter with Antonio Carmona,' and delivered two additional copies of the summons and complaint, at which time he stated that Antonio Carmona said 'I know this case. It is a girl that fell on the floor. I'll just send these papers to the head office.' Then Benson stated the manager appeared to know what he was doing, and finally advised him that he could do with them as he wanted. There is a conflict in the testimony of Antonio Carmona and the affidavit of Benson in the Carmona testified that he did not receive a copy on the first visit, and Benson stated that he would not accept service, but he left a copy with him. At no place does it appear--either from the testimony or affidavit of Antonio Carmona or the affidavit of the deputy sheriff that Carmona was advised that he and/or his wife were defendants in the case, and that they were being personally served as defendants. Mention is made by plaintiffs in their brief of the names written on one of the copies of the summons which was admitted in evidence as having been served on Carmona. This reads as follows:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

However, the return of service made January 31st by deputy Benson was as follows:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The affidavit on default and non-military service made by Geronimo Ramirez does not name Antonio Carmona and Herlinda Carmona, but states that 'as is shown by the files herein service was made on the above named defendants on the 31st day of January 1961, in Cochise County Arizona.'

Defendants named in the caption of the affidavit were Safeway Stores, Inc., a corporation, doing business in the State of Arizona; and John Doe and Jane Doe, his wife, and Richard Roe and Regina Roe, his wife. The names of Antonio Carmona and Herlinda Carmona do not appear in the default entered by the clerk of the court of Cochise County. The caption names the defendants as 'Safeway Stores, Inc., et al,' and the body of the...