Boies v. Cole , 99 Ariz. 198 ( 1965 )

BERNSTEIN, Justice.

Appellants and cross appellees were defendants in a wrongful death action brought pursuant to A.R.S. § 12-613. They are the Sheriff of Maricopa County and the surety company that wrote his bond. Appellees and cross appellants, plaintiffs in the action, are the surviving spouse and children of the deceased husband and father. Plaintiffs received a verdict of $10,000 against both defendants. On motion for new trial the trial judge ordered a remittitur of $7,-000 or in the alternative a new trial. Defendants appeal from the judgment and plaintiffs appeal from the order of remittitur. Tony Silvio, one of the defendants in the trial court and the person who fired the shot that killed decedent, did not appeal.

'The trial judge by his order of remittitur approved the verdict of the jury as to liability. Consequently we must consider the evidence and the inferences to be drawn from the evidence in the light most favorable to the plaintiffs. LeRoy v. Phillips, 97 Ariz. 263, 399 P.2d 669.

For some years prior to November 15, 1957, the defendant Tony Silvio had been under contract with the Maricopa County Board of Supervisors to supply ambulance service for the Maricopa County Sheriff’s office. The contract was let on public bids and provided for the furnishing of ambulance services. The ambulances were to answer calls “at point of pickup” upon request of the Maricopa County Sheriff’s office. The ambulance service included the “handling of prisoners and detention cases and the movement of county patients from place to place on appointment basis or telephoned demand.” Silvio was paid on a time and mileage basis by the Board of Supervisors. He was paid in part out of the sheriff’s budget.

On November 15, 1957, plaintiff wife of Lewis Pearl Cole filed a petition asserting her husband was dangerous to himself and to others and a detention order was issued by the Superior Court pursuant to A.R.S. § 36-504, now § 36-511, and delivered to the sheriff’s office. About 6:30 that evening, a deputy sheriff was sent to the Cole home in Phoenix, Arizona. Silvio was handed the court order at the sheriff’s office and went from there to the Coles where he met a deputy sheriff. Upon inquiry, it developed that Cole was not at home but had gone to a movie and was expected back in two or three hours. Silvio waited for Cole and twice called Sergeant Barnes who was in charge of the mental health department of the sheriff’s office. He asked that he be allowed to pick up the deceased the next morning. He was told by Barnes to wait for Cole because “we have got to pick him up tonight. He will kill his wife if you don’t.” At about 10:00 p. m. Silvio returned to the Cole home as instructed by Barnes. Silvio advised Cole that he had come to take him into custody to be delivered to the County Hospital. Cole refused to go with Silvio and Silvio then attempted to take him by force by placing handcuffs on him. In the resulting struggle Cole was shot and killed by Silvio.

Appellants contend that Silvio was not a deputy sheriff of Maricopa County and this is the first question for our decision. Silvio answered calls at “point of pickup”. He had been doing this for four years in cars on which was painted a sheriff’s star. He testified:

“A Yes, sir, it sure did. It had a sheriff’s star on each side of the car.

“Q That is the Sheriff of Maricopa County insignia on it?

“A That’s right.

“Q How long had you used the car with that marking on it before Mr. Cole met his death?

“A Well, that car hi particular I think I had used it about six months.

“Q Had you used other cars that had that marking on them?

“A Yes, I have. I had a Hudson.”

In the car he had a radio over which he received orders from the sheriff’s department to “pickup” people and he had received orders over the radio from the sheriff’s department to go to the Cole house at other times:

“Q Yes. You said that you got a radio call on the air ?

“A That’s correct.

“Q Who did you get the radio call from?

“A From the Sheriff’s office.”

He also used his radio on the night of the shooting to inform the sheriff’s department of the incident.

Silvio was issued a deputy sheriff’s card which read “I L. C. Boies Sheriff of Maricopa County, State of Arizona do hereby constitute Tony Silvio my lawful deputy in all matters to act as if myself were present.” This card also had the words “Ambulance Service” typed in. Taking this evidence in the light most favorable to the plaintiff he was authorized to act as a “lawful deputy in all matters” as if he were the sheriff. The argument that his authorization was limited to “ambulance service” is not material as he was performing that function.

The testimony shows that Silvio had 'been ordered by'the "sheriff’s department to “pickup” people for four years prior to the shooting in this case. Two of .the definitions of “pickup” in Websters Third New International Dictionary are:

Pickup “5 b to 'find or come upon and ■ take into custody [picked up by the police for questioning] .

Pickup “E. ARREST”

Taking, as we must, the definition of “pickup” most favorable to the plaintiff, Silvio had been arresting people on order of the sheriff’s department for four years.

In addition Silvio had in his possession a commitment order for the arrest of the deceased which could only be served by an officer of the law.. A.R.S. § 36-504, now § 36-511. He testified:

“A So I walked up to Mr. Cole and I says ‘You are Mr. Cole?’ He said, ‘Yes.’ And I says, T have a court order from the Superior Court to take you to the County Hospital for medical examination.’ ”

Viewing the evidence and the inferences to be drawn therefrom in the light most favorable to the plaintiff, defendant Silvio:

1. Was known by the sheriff to have a sheriff’s star on his ambulance.

2. Had a radio in his car over which he was given instructions to pick up people.

3. Had a deputy sheriffs card issued by the sheriff under his hand authorizing him to make arrests as a deputy sheriff.

4. Had arrested people pursuant to court order on the instructions of Sergeant Barnes head of the Mental Health Department of the sheriffs office.

5. Arrested the deceased pursuant to court order and instructions from Sergeant Barnes.

In State v. Stago, 82 Ariz. 285, 288-289, 312 P.2d 160, we said:

“in the instant case, the Sheriff of Navajo County testified that he had appointed Dillon as a deputy sheriff and issued to him a card confirming the appointment. This is sufficient compliance with the statute that ‘appointments shall be in writing.’

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“As noted, the written appointment of Dillon as deputy sheriff was not recorded as is required by the statute. However, such statutes have often been construed as directory so that in any event his acts were valid as a de facto officer. 43 Am.Jur. 234, Public Officers, Section 483. It has been specifically held that the failure of a deputy sheriff to qualify by filing his appointment and oath of office, as required by the statute, did not deprive him of de facto status.”

Silvio’s status as a deputy sheriff here is even more clear than that in Stago. In Stago the Board of Supervisors approved a bond. Here the Board of Supervisors employed and paid Silvio in part out of the sheriff’s budget for his services. The sheriff appointed Silvio a deputy sheriff, permitted the use of a sheriff’s identification shield on his ambulance, delivered court orders for arrests into his hands, directed him to make pickups over the sheriff’s radio and issued a deputy sheriff’s card to him. This evidence is sufficient to support the jury’s finding that Silvio was a deputy sheriff.

Defendants also contend that the trial judge erred in instructing the jury that they could assess punitive damages pursuant to A.R.S. § 12-613 in that the section does not provide for punitive damages in a wrongful death action; that punitive damages cannot be assessed against a sheriff arising from the conduct of his deputy unless authorized or participated in and that a surety on a sheriff’s bond cannot be made to respond in punitive damages. Appellees contend that the instruction complained of did not allow the jury to assess punitive damages.

A.R.S. § 12-613 reads in part:

“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 question for our determination here is whether the language of this statute makes allowance for punitive damages in wrongful death actions. In Downs v. Sulphur Springs Valley Electric Coop., 80 Ariz. 286, 297 P.2d 339, we held that the predecessor of this statute did not provide for punitive damages. We said:

“Since our statutes at one time expressly allowed exemplary damages and thereafter it was eliminated, we must say there can be no implication that the present statute confers the right to this kind of damages in a death action. It shows a clear intention of the legislature to not allow the same.” 80 Ariz. at 292, 297 P.2d at 342-343.

And again:

“The general rule is that unless the statute expressly or by clear implication confers the right to such exemplary damages, none can be recovered in an action for wrongful death.” 80 Ariz. at 292, 297 P.2d at 342.

Downs was decided in May 1956, and A.R.S. § 12-613 was amended by the state legislature in its present form as quoted above in July 1956. Downs did not construe the provisions of the present act.

We read the wrongful death statute, §§ 12-611 and 12-613, as being in two parts. First, damages shall be those that are “fair and just”.

The wrongful death act of 1901 amending the act of 1887 read in part:

“In an action for wrongful death, the jury shall give such damages as it deems fair and just, and the amount recovered in such action shall not be subject to debts or liabilities of the deceased.”

This language was interpreted as allowing damages to the estate but not to allow damages to the next of kin. Southern Pac. Co. v. Wilson, 10 Ariz. 162, 85 P. 401. Only pecuniary damages could be recovered, Butler v. Rule, 33 Ariz. 460, 265 P. 757.

In 1956 the wrongful death statute was again amended so that damages were awarded as were fair and just “with reference to the injury resulting from the death to the surviving parties who may be entitled to recover.”

Thus, the compensation which is to be awarded under the 1956 amendment 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. Merritt-Chapman & Scott Corp. v. Frazier, 289 F.2d 849, 858 (1961) cert. denied 368 U.S. 835, 82 S.Ct. 60, 7 L.Ed.2d 36 in interpreting A.R.S. § 12-613 said:

“The Arizona wrongful-death statute broadly provides that ‘fair and just’ compensation may be awarded by the jury to the surviving parties who may be entitled to recover. Sec. 12-613, Ariz.Rev.Stat. Under this statute, the jury was permitted, as the Court instructed, to include in its verdict not only a ‘fair and just’ allowance for the actual pecuniary loss sustained by the' widow and each of the several children, but also a like allowance for such non-pecuniary elements of damage as loss of companionship, comfort, and guidance that Frazier would have probably provided to them.”

Second, the jury in assessing damages shall also have “ * * * regard to the mitigating or aggravating circumstances attending the wrongful act, neglect or default.” A.R.S. § 12-613.

Defendants point to Moffatt v. Tenney, 17 Colo. 189, 30 P. 348, 351 which construed the words mitigating or aggravating in the Colorado Wrongful Death Statute as allowing only compensatory damages.

On the other hand Missouri interprets the words mitigating or aggravating as providing for comparative negligence under the Missouri wrongful death statute. Martin v. Sloan, Mo.Sup., 377 S.W.2d 252; Richeson v. Hunziker, Mo.Sup., 349 S.W. 2d 50.

The 1956 amendment to the Arizona wrongful death statute provided that the jury could take into account the “mitigating or aggravating circumstances attending the wrongful act * * These words of the amendment coming hard on the heels of our decision in Downs must be closely examined in determining the intent of the legislature. Ernst v. Collins, 81 Ariz. 178, 302 P.2d 941.

The phrase “mitigating or aggravating circumstances attending the wrongful- act * * * ” would have to be an element of damages created by the legislature in addition to those considered to be “fair and just”. The word “aggravating” modifies the words “wrongful act * * * ” and is a clear implication that the element of damages added by the amendment are punitive damages. As this court said in Lutfy v. R. D. Roper & Sons Motor Co., 57 Ariz. 495, 503-504, 115 P.2d 161, 165:

“The general rule is that ‘the allowance of exemplary or punitive damages is based on aggravated, wanton, reckless, or maliciously intentional wrongdoing.’” (Emphasis supplied).

And the term “aggravating circumstances in the act” in a statute has been held specifically to authorize punitive damages. Battle v. Kilcrease, 54 Ga.App. 808, 189 S. E. 573.

We hold that the use of the words “aggravating circumstances” as applied to the wrongful death act is a clear implication of legislative intent to allow punitive damages in wrongful death actions.

■ We now come to the meaning of the term “mitigating circumstances”. As with the word “aggravating” the word “mitigating” modifies the words “wrongful act * * * ” rather than the words “fair and just”. Indeed, if it were held to modify “fair and just” it would allow the jury to award damages less than fair and just and would create a system of comparative negligence in wrongful death actions. In this state by Art. 18, Sec. 5 Arizona Constitution, A.R.S., we are committed to the doctrine of contributory negligence. And the doctrines of contributory negligence and comparative negligence are not compatible. As was said in St. Louis & S. F. R. Co. v. Elsing, 37 Okl. 333, 132 P. 483, 486:

“We are forced to this conclusion by the language of the instruction itself, especially the last sentence thereof, which provides that the negligence of the plaintiff may be considered by the jury in mitigation of damages, which in effect means that the jury may weigh and apportion the concurring acts of negligence of both plaintiff and defendant. The jury under this instruction, to say the least, were inferentially, or impliedly, given authority to determine the degree of negligence of both parties and to apportion the same between them in order to correctly estimate the amount of plaintiff’s recovery, and they were thereby in effect told that the defendant was not entitled to its defense of contributory negligence which is granted to it, and to all other litigants, under our Constitution and laws. This instruction is therefore erroneous and does not state the law in this state, for here there can be no recovery by a plaintiff who is guilty of contributory negligence.” (Emphasis supplied).

In Arizona contributory negligence of the slightest degree if it is a proximate cause of the accident “may” or “should” defeat recovery by a plaintiff and we have recently reaffirmed the Arizona rule on contributory negligence in Layton v. Rocha, 90 Ariz. 369, 368 P.2d 444; Lutz v. Faith, 95 Ariz. 40, 386 P.2d 85.

Mitigating circumstances can only apply where there have been such aggravating circumstances as to justify an award of punitive damages and may only be shown to mitigate the amount of such punitive damages. For instance, where punitive damages are proper, provocation on the part of the deceased may be an element to be considered by the jury as diminishing the amount of punitive damages they might otherwise assess on account of the aggravating circumstances attending the wrongful act. Baltimore & O. R. Co. v. Barger, 80 Md. 23, 30 A. 560, 26 L.R.A. 220.

We agree with appellant’s contention that no punitive damages may be assessed against the defendant sheriff. A sheriff may not be held for punitive damages for the acts of his deputy unless he has directed, participated in, acquiesced or ratified those acts. There is no evidence here that the sheriff in any way directed, participated in, acquiesced or ratified the killing of decedent. Ross v. Sweeters, 119 Cal.App. 716, 7 P.2d 334.

“ * * * while the sheriff and his bondsmen would be liable for compensatory damages, they would not be liable for punitive or exemplary damages, unless they had knowledge of the conduct of the agent and had acquiesced in or ratified his actions.” 7 P.2d at 338.

Appellees contend that the instruction to the effect that the fair and just damages could be aggravated was not an instruction allowing punitive damages. In view of what we have said before we find this argument without merit. So long as the sheriff cannot be held for punitive damages in this case neither can his surety be liable for such damages.

Appellant also complains of the instructions of the trial judge on the measure of fair and just damages. We have treated fully the proper measure of damages under A.R.S. § 12-613 and the subject of damages needs no further discussion.

Also appellees’ cross-appeal need not be discussed as it complains only of the remittitur and any error that may have been committed will be cured by a new trial.

One further matter remains to be disposed of in this appeal. As stated, the defendant Silvio did not make an appearance in this Court either as appellant or as an appellee in answer to the cross-appeal of Eva Mae Cole. We, therefore, assume that as to Silvio the court erred in granting a new trial on the ground that Eva Mae Cole failed to file the remittitur. It is ordered that the judgment in favor of cross-appellant against Tony Silvio be reinstated in the sum of $10,000.

Judgment granting a new trial affirmed as modified.

UDALL, J., concurs.