*1 198 Graham, prosecution appeal. this that the and trial on State v.
sible also sider they 141 improper (1965). P.2d this because 97 Ariz. 401 Fur- of case were ther, clearly that deprivation on a of his his conduct indicated he were Sixth founded knowingly any right rights. to assistance Amendment waived interrogation. at the time of his counsel question the The the voluntariness Miranda, v. 401 P.2d See State allegedly by the made defendant statements (1965). interro- police officials who were affirmed. Judgment during gating not the course him was raised prosecutor the though of' the trial even STRUCKMEYER, J., V. C. and BERN- court that the defendant’s informed the STEIN, J., concurring. “in the being were introduced statements voluntary The nature statement.” admission, object
defendant to their did question hearing 'did for a on
nor he ask ask He did even voluntariness. jury that instruct on court P.2d 017 question of voluntariness. County, Maricopa BOIES, C. Sheriff L. Arizona, Trinity Insurance Universal prosecution uncontradict- introduced corporation, Company, Appellants testimony ed that the defendant when Cross-Appellees, questioning questioned, was first officer right silent warned of his to remain him surviving spouse COLE, of Lewis Eva Mae Cole, deceased, and of Do Pearl mother un- right and of to counsel. There is his Nadias, Cole, May Charles Doris A. lores testimony in the that contradicted record suing Cole, Cole, herein and Lewis R. W. the defendant refused demonstrates on the above for and behalf of herself and children, Appellees named minor and Cross- questions posed to answer certain of the Appellants. officers, interrogating thus dis- No. 7530. playing understanding right a clear his Supremo Court of Arizona. to remain There is no evidence silent. En Banc. indicates the defend- record which Nov. 1965. requested ant denied either counsel was Rehearing Dec. Denied right first to have counsel after rights. hold told of constitutional We regard there is no issue with made
voluntariness
statements
con-
police
us to
defendant to
*2
Polley, Phoenix,
Beer
appellants
&
for
cross-appellees.
and
Moore, Phoenix,
appellees
Moore &
cross-appellants.
and
BERNSTEIN,
Justice.
Appellants
appellees
and cross
were de-
wrongful
brought
fendants in a
death action
pursuant
They
12-613.
A.R.S.
are
surety
Maricopa County
Sheriff of
and the
company
Appellees
his
that wrote
bond.
appellants, plaintiffs
and cross
in the ac-
tion,
surviving spouse
are the
and children
husband and father. Plain-
deceased
$10,000 against
tiffs received a verdict
both
On motion for
trial
defendants.
new
$7,-
remittitur
judge
the trial
ordered a
De-
a new trial.
in the alternative
judgment and
appeal from the
fendants
plaintiffs appeal from
order of remitti-
Silvio,
Tony
one of the defendants
tur.
person
the trial
who fired
court
decedent,
appeal.
shot
killed
did
Upon inquiry,
it
judge
order
re
de-
'The trial
his
veloped
jury
that Cole was not at home but had
approved the verdict of the
mittitur
expected
gone
liability. Consequently must consider
to a movie and was
back
we
two
inferences to be drawn
or three hours. Silvio waited
Cole
evidence and the
Sergeant
Barnes who was
light most favor
twice called
the evidence in the
from
department
charge
Phillips,
the mental health
plaintiffs. LeRoy v.
able to the
that he
the sheriff’s office. He asked
263,
think had used it department by'the 'been ordered "sheriff’s months. “pickup” people prior years for four “Q you Had used other cars had shooting this Two case. .the marking “pickup” on them? definitions of Third Websters Dictionary New International are: Yes, “A I I a Hudson.” have. had n Pickup “5 b 'find or come In he the car he had a radio over which re- up by custody [picked take into depart- ceived orders from the sheriff’s . police for questioning] “pickup” people re- ment to had the sher- ceived orders the radio from Pickup over “E. ARREST” department go iff’s Cole house to the must, Taking, “pick- as we the definition of times: other up” plaintiff, most favorable to the Silvio “Q you got Yes. You said that people had arresting on order of the
radio call on the air ? department years. sheriff’s for four “A That’s correct. In possession addition Silvio in his “Q you radio get did call commitment Who order for arrest of from? deceased which could be served 36-504, an officer of the A.R.S. § law.. “A From the Sheriff’s office.” now night 36-511. He He used his on testified: also radio department to inform the sheriff’s shooting up “A ISo walked to Mr. Cole and of the incident. says I ‘You are Mr. Cole?’ He sheriff’s card issued said, says, And I T ‘Yes.’ have a which read “I L. C. Boies Sheriff of Superior court from order Maricopa County, of Arizona do here- State you Court County to take Tony my constitute lawful Hospital for medical examina- pres- myself in all to act as were ” matters if tion.’ ent.” This card also had words “Ambu- Viewing the evidence and the inferences typed Taking in. evi- lance Service” this to be light drawn therefrom most light dence in the most favorable plaintiff, favorable to the defendant Silvio: plaintiff he act was authorized to as a *4 by a the 1. Was known sheriff to have deputy “lawful in if all matters” as he were star on his sheriff’s ambulance. argument the sheriff. The his au- that thorization was limited to serv- 2. a in “ambulance Had radio his car over which ice” not performing given material as he pick up peo- was he was instructions to ple. that function. Supervisors approved a Stago deputy sheriffs card issued the Board
3. Had a Supervisors em- authorizing Board hand bond. Here the the sheriff under his part deputy ployed paid a sheriff. in out him to arrests as make budget for his services. sher- sheriff’s court people pursuant 4. to Had arrested sheriff, per- appointed deputy iff a Sergeant order on the instructions identification mitted a sheriff’s the use of Depart- Barnes the head of Mental Health ambulance, court or- shield on his delivered ment of the sheriffs office. hands, him into his directed ders for arrests pursuant Arrested deceased pickups radio and to make over the sheriff’s Sergeant court order and instructions from This deputy a to him. issued sheriff’s card Barnes. jury’s support evidence is sufficient 288-289, Stago, In State v. finding deputy a that Silvio was 312 P.2d we said: that also Defendants contend case, “in the instant the Sheriff jury that judge instructing trial in erred Navajo ap- County testified that he they punitive damages pursuant could assess pointed deputy Dillon a as sheriff in section does A.R.S. 12-613 that the § ap- confirming issued him a card in provide punitive damages a compli- pointment. This is sufficient action; punitive dam wrongful that death ‘appointments ance the statute ages against assessed cannot be sheriff writing.’ shall be in deputy arising the conduct his un from participated in less authorized or jfi jjí j]; ífc iff surety noted, be made appointment on sheriff’s cannot “As the written bond Appellees respond punitive damages. deputy not re- Dillon as sheriff complained contend required that the instruction corded as is the statute. jury punitive However, did not assess statutes allow such have often been directory any damages. construed as so part: A.R.S. reads event his acts were valid as a de facto 12-613 officer. Public Of- death, the wrongful Am.Jur. “In an action ficers, specif- 483. It Section has it deems jury give damages such shall ically held that the failure of a in- just with reference to fair and appoint- qualify filing sheriff to jury resulting from the death to office, required ment and oath of parties entitled surviving who statute, deprive him of de did recover, having regard to and also facto status.” aggravating circum- mitigating act, neg- wrongful as a here is attending Silvio’s status stances Stago. In even more clear than that lect default.”
203
wrongful death,
“In
question
here
an action for
for our determination
The
jury
give
damages
language
statute makes
shall
such
as it
of this
deems
is whether
just,
fair
punitive damages
wrong-
and the amount recover-
allowance
Sulphur
ed
subject
in such
not be
actions.
In Downs v.
action shall
ful death
Coop.,
286,
Valley
Ariz.
debts
Springs
Electric
80
or liabilities of
deceased.”
339,
predecessor
P.2d
we held that
297
interpreted
This language
allowing
was
as
provide
punitive
this statute did not
damages to the
but not to allow dam-
estate
damages. We said:
ages to the next
kin. Southern Pac.
Co.
our
at one time ex-
statutes
“Since
Wilson,
162,
Only
v.
10 Ariz.
The
statute,
part:
of 1887 read in
Ariz.Rev.Stat. Under this
the act
jury
permitted,
as the Court in-
legislature.
Collins,
Ernst v.
structed,
to include in its verdict not
but also a like allowance for such non- damages legislature created in addi- *6 pecuniary damage elements of loss tion to those considered to be “fair and companionship, comfort, of guid- and just”. The word “aggravating” modifies ance probably that Frazier would have ” * ** the “wrongful words act and is a provided to them.” implication clear that the element of dam- Second, jury assessing damages the in ages by added punitive the amendment are “ * * * regard shall have also damages. Lutfy As this court said in v. mitigating aggravating or circumstances at- Roper R. D. Co., & Sons Motor act, tending wrongful neglect the or de- 495, 503-504, 161, 115 P.2d 165: fault.” A.R.S. 12-613. general “The rule is that ‘the allowance Tenney, point Moffatt Defendants v. exemplary punitive damages of or 189, 348, 17 Colo. 30 P. 351 which construed wanton, aggravated, reckless, based on in the mitigating aggravating the words or maliciously or wrongdo- intentional al- Wrongful Colorado Death Statute ing.’” (Emphasis supplied). lowing only compensatory damages. “aggravating And the term circumstances interprets On the other hand Missouri in the act” in a statute has been held spe- pro- mitigating aggravating as the words or cifically punitive damages. authorize comparative under viding negligence Kilcrease, Ga.App. 808, Battle v. 54 189 S. wrongful Mar- the Missouri death statute. E. 573. 252; Sloan, Mo.Sup., tin v. 377 S.W.2d “ag- We hold that use of the words Hunziker, Mo.Sup., 349 S.W. Richeson v. applied gravating circumstances” as 2d 50. wrongful implication death act is a clear amendment to the Arizona The 1956 legislative of punitive intent to dam- allow wrongful provided death statute ages wrongful in death actions. “mitigating jury could take into account the n attending meaning come to the of the aggravating circumstances We now ** “mitigating of term wrongful act These words circumstances”. As coming “aggravating” the word “miti- amendment hard on the heels word closely gating” “wrongful ex- act in Downs must be modifies the words our decision ” * ** determining “fair and the intent of the rather than the words in amined Indeed, modify state, just”. if held it were this here there can be no recovery by plaintiff just” jury “fair it guilty would allow the who is just contributory damages negligence.” (Emphasis award less than fair and system comparative neg would create supplied).
ligence wrongful
actions.
In this
death
contributory
In
negligence
Arizona
state
Arizona Constitu
Art.
Sec. 5
slightest
proximate
degree
is a
if it
cause
tion, A.R.S., we are
to the doc
committed
“may”
of the accident
defeat
“should”
contributory negligence.
trine of
And
recovery
plaintiff
and we
recent-
have
contributory negligence
doctrines
ly reaffirmed the Arizona rule on contribu-
comparative
compatible.
negligence are not
tory
Rocha,
Layton
negligence in
v.
As
was said
St. Louis
S. F. R. Co.
&
444;
Faith,
Ariz.
368 P.2d
Lutz v.
Elsing,
486:
37 Okl.
132 P.
40, 386
P.2d 85.
“We are forced to
conclusion
this
Mitigating
apply
only
circumstances can
itself,
language
of the instruction
where there have
aggravating
been such
thereof,
especially the last sentence
justify
circumstances as
award
provides
negligence
which
that the
punitive
damages
be shown
plaintiff may
be considered
to mitigate the
punitive
amount of such
jury
mitigation
damages,
which
instance,
damages.
punitive
For
where
jury may
effect means that
*7
damages
proper,
are
provocation
part
on the
weigh
apportion
concurring
the
may
of the deceased
be an element to be
negligence
plaintiff
acts of
of both
jury
diminishing
considered
the
jury
defendant. The
under this in-
punitive
of
damages they might
amount
struction,
say
least,
were inferen-
aggra-
otherwise assess on account of the
tially,
impliedly, given authority
or
vating
attending
wrong-
circumstances
degree
determine
negligence
ful
Barger,
act. Baltimore
O. R. Co.
&
v.
parties
both
apportion
and to
the same
80 Md.
30 A.
mate the amount of agree appellant’s recov- conten We ery, they thereby punitive were in tion damages may effect that no be as told that against the defendant not was entitled sessed the defendant sheriff. A contributory may punitive its defense of negli- sheriff for dam be held gence it, granted which is ages to all for the acts of his unless he litigants, other directed, in, acquiesced under our participated Constitution has or and laws. This instruction therefore ratified those acts. There is no evidence directed, erroneous and any does not state the in way law here the sheriff in that appellant or as an either as in, acquiesced in this or ratified the Court participated cross-appeal Sweeters, appellee in answer killing of decedent. Ross We, therefore, assume Eva Mae Cole. Cal.App. P.2d 334. granting in the court erred as to Silvio “ * * * sheriff and while the Cole ground that Eva Mae new trial on the compen- be would liable for bondsmen remittitur. It is ordered failed to file the lia- satory they damages, would be cross-appel- judgment that the in favor of exemplary damages, punitive ble Tony against be reinstated lant con- they knowledge of the unless $10,000. the sum of acquiesced agent of the and had duct Judgment granting a new trial affirmed P.2d ratified his actions.” 7 as modified. instruction to Appellees contend UDALL, J., concurs. damages just that the fair and effect LOCKWOOD, (specially instruction Chief aggravated not an
could be Justice concurring) punitive In view of : allowing damages. this before we find
what we have said majority I concur in the result long as argument without merit. So therein, opinion reasoning ex- and with the punitive dam- cannot be held cept significance for the attributed surety be ages in case neither can his this appears regard, it “pickup”. In that word damages. liable for such a word to me that it cannot be considered Certainly po- present of art in the case. instruc- Appellant complains of the also may “pickup” language, lice the word measure of judge trial on the tions of the pur- an arrest for various used to denote just damages. have treated fair and We However, may poses. also be it used damages fully proper under measure persons in transporting connection with subject damages A.R.S. 12-613 and the any point need of ambulance service from needs no further discussion. county jail, aft- (including found from the cross-appeal need not be appellees’ Also already made) er an been arrest has complains only the remit- discussed as it county hospital. This would not involve any have titur and error Silvio, part although arrest on the by new trial. will be cured committed “pick up” patient was al- would who *8 ready under arrest drive him to the hos- to be dis- to further matter remains One stated, pital de- in connection his ambulance appeal. As the with posed of in this appearance service duties. make an fendant Silvio did not pointed As out the majority opinion, in Then: ample
there is regard evidence without just quick “and he drawed out his the use of “pickup” the word which would gun doing my and while he was indicate that Silvio’s status was that stepped husband little back a and he deputy sheriff, spe- though even it involved him, fell, shot and he and then Mr. cial ambulance services. Silvio ran out of door and he * * back,
never came STRUCKMEYER, Vice Chief Justice But, fact unnecessary killing this (dissenting). should not be allowed to cloud the issue as liability damages am where for
I dissatisfied should be treatment placed. majority questions of the serious raised appeal in holding this in that the Sheriff Three suggested theories are the evi- Maricopa County, Boies, L. C. and possible dence grounds liability as Trinity Company Insurance are Universal They Boies. separately must be consid- damage liable in Lewis death of properly analyse ered in order to the re- Pearl Cole. sponsibility for what and occurred should lumped together support not be a judg- giving The basic rise facts to this action contrary ment which attacked as relatively simple. At about the are hour law and evidence. Tony p. 15, 1957, m. on 10:00 November attempted custody and take into Only.if duly ap- FIRST: Silvio was a transport Maricopa County Cole pointed, qualified acting sheriff deputy, thereto, Hospital. instigation Prior Maricopa County plaintiff’s pleaded in wife, an order had been issued complaint of Cole’s would Sheriff Boies and his County Superior Maricopa Court of company bonding be liable. Miles pursuant seq. (amend- 36-501 et Wright, A.R.S. 194 P. 12 A.L.R. of Cole 1958) Laws of detention ed per- county hospital mentally ill Cole, plaintiff, alleged Eva Mae come Cole that he had Silvio advised son. complaint wrongful her for the death of hospital Cole county him the to take her husband Thereafter, go him. refused to with Tony at all “that defendant Cole, plaintiff language of Eva Mae times herein mentioned was now
wife, Silvio said:
appointed, qualified
duly
acting
“
Maricopa County,
you
way
I
‘I’ll
or another if
take
one
”
Arizona.”
you,’
kill
have to
*9
allegation
This
was never amended ^either
writing,
shall be in
and filed in the
end,
therefore,
the trial or later.
In the
office of the county recorder.”
n Boiesand
plaintiffs
against
case
Sheriff
statute,
face,
on its
requires these ele-
the Trinity
Company
Universal Insurance
:ments
must rest or
on
establishment
fall
appointment
1. An
in writing;
appointed,
that Silvio
a duly
quali-
fact
appointment
2. The
with the
be
consent
acting
fied
sheriff.
Supervisors;
of the Board of
proving agency
The burden of
rests
.
3. That it be filed in
the office
Lanier,
party asserting
it. Cameron v.
county recorder.
579;
108 P.2d
States
United
Exploration
Smelting, Refining
Mining
public policy,
A.R.S.
11-409
ais
statute.
§
Develop-
Company Wallapai Mining and
purpose
prevent
Its
county
is to
officials
Company,
officers ute would meaningless. of, and at fixed consent salaries supervisors], appoint the board The evidence established that [of Silvio was ** deputies, appointments *. The issued the reproduced. card here *10 sup- employment to Stago, The facts of Silvio’s held, previously State v. have We For ply are these: ambulance service such a card P.2d 15, 1957, years prior November statutory re- some fulfill the was sufficient the Phoenix Res- Silvio, doing as writing, business appointment in an quirements of Service, piratory Ambulance required and for particular manner is that no County Maricopa consent, under contract with and that its to evidence the board supply Supervisors “routine” was Board of county recorder filing for precedent “emergency ambulance service” directory. Stago merely Super- Maricopa County. let There, This contract was Board for this case. appoint- provided public consent to the for the fur- evidenced its on bids. It visors by approving the equip- nishing ment and ambulance of ambulances indemnify by him the sheriff given contract bond ment with drivers. Since Silvio’s Plere, wrongful act. against deputy’s key Supervisors is the with the Board employment rely containing on the majority employment, bid to his Supervisors supply ambu- reproduced the Board full. terms of his contract county consent to lance service appointment TONY SILVIO TELEPHONES 3-7553-AL, E. J. SILVIO
AL. 8-0012 PHOENIX RESPIRATOR & AMBULANCE SERVICE
537-539 EAST MORELAND
PHOENIX, ARIZONA 6, 1957
June Supervisors Clerk of the board of Phoenix, Arizona Serial No. Courthouse Annex — emergency respirator Bid for ambulance routine service oxygen Maricopa County. service for County (except
Calls for service for all activities of the the Sheriff’s Office) (10) within radius of ten miles of Central Ave. and Wash- per ington, patient----------------------------------------------$4.50 Mileage point pick up by speed- be figtired will to destination from reading (as per ometer our bid—first 10 miles additional miles $4.50 per mile.) 50^ Oxygen per small tank-------------------------------------------$1.50 Waiting per (prisoners time hour & detention cases)--------------$4.50 prisoners Calls handling and detention cases all areas *11 Maricopa County. patient, (10) per Per first ten mile--------------$4.50 For each (10) additional mile above the per first ten .50 mile------------$ EQUIPMENT
One Cadillac Ambulance
One Cadillac Sedan Ambulance Respirator
One DeSota Sedan equipped. & First-aid car. Radio All equipped respirators, vehicles are with oxygen sup- all other plies specifications service; listed in calls for bids for ambulance Serial No. 598 agree
We comply specifications to with all listed in calls for bids for ambulance service in Serial No.
PHOENIX RESPIRATOR & AMBULANCE SERVICE (s) Anthony Silvio
Anthony 6,1957 Silvio—Owner Dated: June (Emphasis supplied.)
211 possible Well, “A it to the main reason that that how is understand I cannot employment Tony was issued to on independent is these rescue equate Silvio’s on, goes many missions that he Supervisors consent of by the Board many people times there are so there deputy sheriff. Con- appointment as a you difficulty have in getting De neutral attitude. not a vacant or sent is 95, the scene of the accident Gould, 80 or whatever Klyn 59 N.E. 165 N.Y. v. * * knowledge it *. implies Am.St.Rep. 719. Consent People ex rel. facts. Vestuto permit “Q This was to get him to 810; O’Connor, Ill.App. 115 N.E.2d 351 deputy access aas sheriff ? N.W. Wheeler, 165 N.D. State v. “A getting It necessitated simply is no evidence access to 574. There might scene of whatever Supervisors any knew it member be. Board purported acted or or was aware “Q Anywhere he needed go? act, did, deputy sheriff if he as a ever “A right.” That is County. Maricopa for testimony Boies’ is that similar cards were majority’s contrary The evidence given press, judges, pro- bailiffs and consent, being and un- clear conclusion of bation officers. There is not one word appointment card contradicted that Silvio’s testimony that Silvio ever wore a create the relation- was never intended to badge sheriff’s performed or uniform or ship principal agent in the sense any of the duties functions of office of deputy. given card regular The Agency contractual and was an identifi- to Silvio Sheriff Boies must rest parties. consent of the Val- ambulance cation card to assist him in his ley Nat. Bank Milmoe, Phoenix v. Boies testified without contradic- service. plain P.2d 740. It is too card: tion relative to Silvio’s argument. further reg- Silvio was not a by you ? signed “Q that one Was ular Maricopa sheriff of County. “A It was. possible By the fullest giving the card your when “Q intention What assuming import consent and even
you signed it? Supervisors, status would Silvio’s Board of Merely an identification “A spe- be, most, than that no more at ‘the card. authority. cial with limited deputies Tony power appoint of a sheriff
“Q identify did it As what *12 recognized. purpose a limited is well ? Silvio fin, App. 447, 457, will be noted that none of the 80 Ohio “It 76 N.E.2d (Emphasis sections above mentioned General Code supplied.) ap- any provisions contains as to the It is uncontradicted that the card issued ‘special pointment employment or general appointment Boies was not a as ‘special deputy deputies’ or sheriffs.’ deputy a but for identification and sheriff Furthermore, statutory defi- there is no purpose the limited of assistance in obtain- ‘special deputy’ ‘special nition or ing access to the scene of accidents in Sil- However, deputy be it will sheriff.’ vio’s ambulance service. noted that under the common law face limits card on its The identification appoint right sheriff had the appointment. It recites purported Silvio’s many general and as under-sheriff deputy a sheriff appointment as regular a special deputies in the to assist him dep- lawful sheriff’s that is Silvio discharge of duties his various typed matters, but it in all uty to act public require, and that may service SERV- “AMBULANCE the words it deputies in his such act for the sheriff given some must be These words ICE”. and are the sheriff’s and stead name they why would significance; otherwise any may agents do agents as such only possible ? The placed upon the card be may do. ministerial act that the sheriff limited that was is construction sheriff determination of cial in the the duties of he the sheriff without perform any special deputy being [*] “The time and extent sheriff from time to authorised to subject authority may be acts as his l|C sense that he is duties of special Í¡C sheriff, a matter assignment to perform only the sheriff agent. being [*] in the sense that sheriff, the sheriff of the exercise solely appointed by time as the may assigned ^ A duty by part for the deputy such spe- [*] bulance service. iffs were that on he never claimed restricted not rest and acting ing ambulance rested rived, It violently paid should anyone, person. one occasion joined that he to those attempting the sheriff at a time when two salary be here stated insane with the The card on its purposes. as a never, person. the officers right he arrived with in his duties of deputy possible take into to make an any time, ar- After deputy sher- sheriff, exception in subdu- face was custody he ar- am- ar- deter- I conclude that Silvio was in his discretion can sheriff Geyer simply because he was ex rel. v. Grif- mine.” State *13 only where there but if cause harm. It is appointed according to law consent appointment per- inferred, by a third possibly has some reliance (cid:127)could be authority principal the appearance include son a limited and did not was of agent servant re-' or a master and to make arrests. lationship appearance can such that can that If it be said SECOND: liability, only then be the basis of deputy a appearance had the of ostensible subsequent a man- harm is some if sheriff, and the sheriff’s because of radio Except by ner induced the reliance. ambulance, appearance star such on his cases, therefore, person in such is liability Boies of would not establish trespass, negligence, not liable for the shooting Cole.1 This act in Silvio’s defamation, ap- tort or other of 112, Court, Britten, 53 Hammels v. ’ ”*** parent agent. servant or 992, adopted rule of Re- 85 P.2d 118, 992, 112, 53 Ariz. 85 P.2d 994. Agency, 265: statement Law of § emphasis (First supplied, second em- “ Except where there Rule. ‘General phasis original.) person up- by a third has been reliance Ed., Agency, 2nd Accord of Restatement agency, appearance on the one who 265. that another is has manifested agent does there- servant or other agent If is is clothed one not an tor- liable for the other’s become appearance agency, in another with apparently conduct, although it is tious principal purported order for the to be apparent within the authorized or is agent, for the held tortious acts of the 112, scope employment.’” 53 Ariz. person harm which results to a third must sup- (Emphasis 994. P.2d ap- on the have been caused reliance plied.) pearance agency, and the reliance must injury. By stretch have induced no quoted from the com- The Court further imagination possible is it to conceive ment to the Rule: General appearance agency could have how “ person was 'The that a manifests resulted death. Cole fact in Cole’s person appearance to a third that another is his shot because he relied on agent not of itself Nor was or servant does of Silvio as a sheriff. iden- or uniform lie showed the There no evidence that Cole saw or that that he in the home or ambulance since Cole was tification card at the Cole Silvio’s he house when Silvio arrived and hence stated have, Cole, Further, on, it Mr. we star or radio. said: “Como saw the going you emphasized no to the Coun- there I’m to take out should be badge ty Hospital wore a sheriff’s for observation.” evidence that Silvio telephoned Sergeant
his death back induced reliance on that fact. Silvio then Liability predicated cannot be at the sheriff’s office and told him on the Barnes grounds agency. of ostensible that Cole was not at home. types “pick this point
THIRD: While there are
two
It is at
that the words
ostensible,
up”
agency,
Canyon
actual and
were used. Silvio testified to this con-
Hooks,
State Canners
243 versation with Barnes:
P.2d
agency
actual
arise from
“ *
**
I didn’t know what time
implication;
is,
implied
from the
they
home;
I
would be
didn’t
Storage
facts and circumstances. Arizona
stay
night
want to
out there all
wait-
*14
Company
and Distributing
Rynning, 37
ing
pick
up
him
and I
to
to
wanted
light
“A. there was another Mr. to take him the to deputy car, Hospital with me at the scene. I for a medical examination ”* * * my car, went alone in they there was told me to come in. * * (Emphasis supplied.) met me at the scene plaintiff requested cy. 2. The court and the trial dis- This instruction bus objections by majority instructed over defendants’ cussed or alluded to conceivably although assign- a manner be such as could decision raised Boies’ implied agen- considered an instruction on ment of error No. 5. foregoing typical examples people are resting The of on order' the sheriff’s “pick up” department years,” use of the words as reflected in for four when his testimony. people contract he transporting Silvio’s No other witness used had been except plain- point pick up years, these words and the from the Silvio for four explain meaning including “prisoners him tiff never asked to cases” detention to attached them. for the sheriff’s office. Barnes, Sergeant who What was deceased “pick up” It obligation was Silvio’s to trial, at the time meant to when he said patients in his The bid ambulance service. Silvio, picked up tonight,” “He got has to be specifically provided “mileage fig- will explanation likewise record. finds no point pick destination up ured from to unquestionably Barnes intended for Cole speedometer reading.” principal opin- custody night. to be taken How- “pick up” into ion attaches to the words ever, say, him “You arrest custody, arrest,” Barnes did not meaning of “to take into normally tonight,” which is what would Dic- International Webster’s Third citing have been if was make phrase up,” said tionary. “pick as The verb “pick Every arrest. other use of the words Webster’s, no less than defined has Silvio, up” “pick up” by him from twenty usages. common different Some they used, complete- context are “pick which examples given meaning as ly performance consistent with the up” ground; do To lift are: from job Supervisors which hired over, knitting; range the Board of bring within as in Why by telescope him to do. took it himself hearing, vision attempt him bar; go Cole to radio; up force pick in a girl, *15 he was not unless it because disclosed meal; gather speed; to prepare gain a to stay night “didn’t want to out there all room; up pick up belongings, as to one’s waiting.” a vehicle. passengers freight or into take to twenty-two “pickup” mean- has
The noun assuming But even that Barnes intended Taking among these are: aboard ings, instance, Silvio, particular to for in this Manifestly, the passengers; Arrest. the arrest and Silvio so under- make actual up” bid is in “pick words used Silvio’s stood, responsible held cannot be Boies passengers.” “taking aboard the sense of subagent with- delegation duties to a the meaning Silvio further additional What acqui- authority, knowledge or out his unknown; words, any, but is gave the if to escence. justification for arbi- certainly there is no responsible for held principal A cannot be arrest and trarily shifting the to meaning appointed act for those to actions of ar- had been concluding that “Silvio hence him authority; hospital another without his Such without which he could not be person agent is no more than an of an Certainly, peace admitted. making officer agent, agent principal. not the of the an legal process arrest virtue of not is required posses- to have the warrant in his “There no evidence whatever that sion if he knows that a warrant in fact Phillips, M. I. conceded to have been exists. The making agent appellant, any an of the ex- possession actual detention would need press authority employ prin- to for his of the detention order to make a lawful * * * cipal Phillips. his son W. J. arrest. But Silvio need would it for de- liability principal The test of of the livery proper to the personnel at the Mari- subagent for the tort of a is believed copa County Hospital. authority, the existence of ex- be press implied, agent given purported Silvio at no time to work for subagent agent make the sheriff, conceivably thought even if he
principal. authority, a Without such he had authority by some indefinite reason simply subagent agent be the would of the identification card. He testified that agent, principal.” not of exclusively relied his contract with Company Shirley, Refining Gulf county in ambulance service. This con- (Tex.Civ.App.). S.W.2d tract, work, as an fairly incident of his Agency, p. And see 3 construed, required Am.Jur.2d passengers him to take There no evidence that Barnes had the into his ambulance under certain circum- authority appoint subagents to make ar- stances, at sometimes the direction rests. transport His ambulance was to out, already pointed
As has there paid them and he was for this and this. per- is no evidence that ever before He was not hired to make arrests. He sonally The ma- served detention orders. did customarily or ever make arrests. jority significance attach the fact that He testify did not that he made the ever picked detention up orders mentally initial detention of a disturbed Obviously, the sheriff’s when a office. person. mentally person ill is to delivered county hospital authority legal agency some must It is axiomatic in the law accompany person authority for his one is not liable for the acts of another who, necessarily authority, would detention. The orders without assumes act go capacity agent with the ambulance as a matter him in the or on patient routine be delivered with the behalf.
217
“ ‘
declarations own Mechem on Trust & Sav. Ass’n v. 96, 100, 1918F, 713].)” 154 P. Nygren,] acts 348 [1042] only Agency, 17 P.2d than Ariz. Bank of statements. page he can [491] Barnett, 87 Ariz. 289.’ America Nat. 1044 at ([Brutinel * * page his own [L.R.A. 497, * ” ARIZONA TION, Rehearing Denied Dec. Supreme SAVINGS an Arizona ceivership, Appellee. Nov. En Banc. No. 8457. Court of 18, 1965. AND LOAN ASSOCIA- corporation in re- Arizona. 1965. undoubtedly personally While Silvio conduct,
liable I find no reason- can support judgment against
able evidence to Trinity Universal Insurance Com-
Boies or ap-
pany. facts are found Where
pellate undisputed by to be reason court con- being
of the evidence without material question in-
flict and law is
volved, the Court should direct final DeMund,
judgment be entered. Silva 638; ex rel. Ariz. P.2d State
Conway Department, 62 v. State Land 901; P.2d 12-2103. A.R.S. § Trinity
This Uni- cause as to Boies and Company be re-
versal Insurance should judgment in
versed with directions to enter opinion that
their favor. Since I am of the disposed in accord-
this case should be stated, with the conclusions I do
ance questions
reach the further decided
majority.
McFARLAND, J., dissent. concurs this