*1 is suffi- plain- examination to determine there urges that appeal, defendant On support theory, trial evidence to sub- for a new cient failure to move below tiffs’ applies. In order to have this any by this court section precludes consideration C the failure of the trial court plaintiffs’ contentions. court review the merits instruct, appellant procedural must first have argument states that displeased requires new trial. of Arizona a moved a approval denial a trial court’s appellant If the had desired a re a new requested move for instructions legality given view of the instructions trial, (s) alleged error based on necessity would have been no instructions, before he is entitled to trial, move for a new but such is appellate court. an matter reviewed case here. appellant The failure of the scope defining the 12-2102 A.R.S. § precludes to move for new trial an examina fully appellate forth as fol- review set sufficiency tion of the the evidence : lows requisite which is a to reviewing the court’s Upon appeal judg- an from a final A. specified refusal to instruct on theories of ment, supreme review court shall law. involving any intermediate orders The judgment of the trial court is af- necessarily merits of the action and af- firmed. fecting judgment, and all orders and error, a rulings assigned as whether mo- LOCKWOOD, J., and C. STRUCK- for a new trial was made or not. tion MEYER, J., concur. V. C. denied, If a for new B. motion trial was appeal may, the court on from the final
judgment, denying review the order although appeal
motion no is taken from the order. appeal an judg- C. On from a final supreme court
ment the con- sufficiency sider the of the evidence to Melanie LUECK, widow of Wil Lueck, deceased, liam T. and William C. judgment sustain the verdict or in an Lueck, surviving par and Ada D. Lueck action tried before unless a mo- Lueck, deceased, ents of William T. Peti tion for a new trial was made. tioners, background For discussion opinion Hays see our The SUPERIOR COURT of State of Ari Richardson, zona, IN AND FOR COUNTY OF CO Lloyd Helm, CHISE, and the Honorable C. Judge, Company, Southern Pacific appears A of the Subsection statute Respondents. corporation, require this court to “all review orders No. 9791-PR. error, rulings assigned zvhether a Supreme Arizona, motion new trial was made or not” In Banc. added). (emphasis Subsection C however May 12, 1970. A, provides exception an that where Rehearing Denied June alleged sufficiency error concerns “the of the evidence to sustain the verdict judgment jury,” in an action tried before a aggrieved party must for a move new
trial in order to have the matter reviewed appeal. It is our view because a trial
review a court’s refusal to instruct party’s theory as to a requires case *2 party-plaintiffs
the deceased as additional originally brought by the in an action sur- viving wife on herself and two behalf of minor The trial court denied the children. though to amend motion even dependent alleged parents were support. upon their son for presented wheth issue is basic Statute, by Wrongful er our Death Act through 12-611 author A.R.S. § sop a deceased recover izes wrongful for his death when there are also and children. The wife concept wrongful re embodied covery purely statutory and the answer language to that issue lies in the of the Milliman, In Re statute. See Estate (1966) for a history wrongful death statute. The following the statute are sections of dispositive of the herein: issue plaintiff; recovery; 12-612. Parties “§
distribution wrongful
A. An action death shall for in the name of the personal husband or wife or representative person the deceased for and behalf hus- wife, parents, band or children or or if survive, none of these on behalf of decedent’s estate.
tioners. P. Pac. Co. Barber & Bilby, Thompson, C., Tucson, Haralson, Tucson, Shoenhair respondent, & Warnock, Southern for peti- A and to the for distribution of C. The amount [******] wrongful parties provided proportions provided by death shall be distributed recovered in an action estate left subsection by persons dying intestate.” HAYS, Justice. damages; non- 12-613. Measure petition for comes to on a This case us liability for debts of dece- II of of a decision of Division review dent petition Appeals, which Court of death, In an wrongful action for granted. The decision such as it deems P.2d 348 Appeals Ariz.App. in 10 injury fair and with reference (1969) is vacated. resulting from the death to the surviv- granted ing parties Appeals writ The Court of be entitled to re- cover, denial trial court’s having regard certiorari also the mit- review complaint igating aggravating an amended at- of a motion file circumstances tending act, The motion neglect in a death action. parents sought amend and add default. The amount recovered subject respectively, ages debts suffered them action shall deceased, according proportions fixed liabilities of the de- on behalf statute of descent distribution. Nev- statutory ertheless rule of distribution cedent’s estate.” mandatory, and all benefi- Pacific appellant, Com- Southern ciaries are re- entitled to share in the reading of A.R.S. a fair pany, contends that *3 covery statutory in the re- proportions, legislative indicates a subsec. C gardless the that of fact some have suf- right parents’ off the intention cut others, damages fered more than or have and are wife children sue when there contributory guilty negligence.” been of by fact the surviving, being this indicated at 282 N.W. 183. “for distribution the that under Arizona Thereafter, dying by persons Legislature Michigan the of personal estate left of nothing. alleged parents take amended statute to remove the intestate” the would provisions. They its injustice contend See v. A.R.S. 14-201. also Currie See 611, by 440, Fiting, 134 position supported 375 Mich. that this is further N.W.2d (1965). “or” in disjunctive of the 619 use words subsec. A between the Michigan language The also said in or “parents.” “children” pertinent we find most here: hand, appellee asserts On other statutory “It be that admitted only applies C that A.R.S. § provision hard- as to distribution works a spouse, child, parent there is no or ship possible injustice and to Mrs. Ven- surviving, and use “or” that neman, compelled still we follow conjunctive rather A subsection is in express language the clear and argues disjunctive than sense. then She by legislature. law as enacted The Legislature hardly in- that the could have of the is wisdom not a matter statute give surviving dam- tended to beneficiaries court, for the of the consideration by respective injuries ages measured wholly legis- is within the control death, sustained of the reason lature.” 282 at 184. N.W. damages those and then these according the laws who would take cases which have Some of other- ex- poignant of intestate A succession. problem include: Northern considered receiving ample given is an infant child 321, West, 218 Indiana Power Co. v. Ind. a child the same amount Beard, ; Moseley 32 (1941) N.E.2d 713 wholly independent supporting and who is 731, (1942); Ark. 917 203 158 S.W.2d Surely Legislature himself. couldn’t Duluth-Superior Murphy Bus Co. unjust intended such an result! 345, (1937). 200 Minn. See 274 N.W. A.L.R. also cases annotations problem not This is the first time this 30, 112 A.L.R. A.L.R. Supreme arisen. Michi has Court of problem in In gan a similar wrestled with is opinion It is our Estate, 368, 282 Re Venneman’s 286 Mich. ambiguity in cries this statute which no resolution (1938). court’s N.W. statutory wizardry out construc is in the issue in that case found ' not, like the result tion. Whether we following quotation: their find the to be we words inconsistency meaning be- “There is an to be evident. When we find obvious law” “judge-made dam- tween rules that the that the common law or times, step we ages unjust shall be or out of with the assessed on basis pecuniary suffered the benefi- have no it. Stone loss reluctance change ciaries, Comm., Hwy. re- v. Ariz. 93 Ariz. that such when , dealing among covered shall distributed P.2d 107 we are Here enactment, beneficiaries, according legislative the dam- a and' with proper only Legislature correct father mother be allowed to an
any deficiencies therein. for a action child where such child is not husband, wife, survived or children hold that We the deceased own, of his provide and did par- right have no to recover for his ents independent would have an cause of because there are also action a wife and The trial children. court surviving spouse affirmed. the deceased. question Thus the turns before this Court LOCKWOOD, STRUCKMEYER, J.,C. upon whether surviving parents J., UDALL, J., V. C. concur. spouse recover where there is a McFARLAND, (dissenting). Milliman, and children. In In Re Estate of Justice set forth William T. Lueck was killed November history wrongful-death statute: in a collision a Southern *4 by Pacific locomotive. He was survived wrongful-death “We enacted statute our Melanie; children; his wife and two seq., for the first time in et 1887. § Lueck, William C. Lueck and D. his Ada Arizona, Revised .1This Statutes of 1887 parents. original complaint The filed was provision strikingly was the similar to by Melanie. Later filed a motion to she Original Campbell’s Lord Eng Act of complaint amend the sur- include the Wilson, land. Southern Pacific Co. v. viving parents, D. William C. and Ada 401. Ariz. 85 P. This statute Lueck, party as plaintiffs alterna- or in the created a new cause of action for the allowing by tive representation of them benefit of the beneficiaries named the provided in statute, Melanie Lueck as recovery under such statute The § defendant Southern is not an of asset the deceased’s estate. Pacific Company objected to the amend- Annot. 14 A.L.R. 516 ment, stating it legislative that the in- was “This statute was amended in 19012 B, A.R.S., tent of subsec. that provide the cause of action was 1. benefit mence the same within benefit of the deceased to commence and divided shall then so therein shall the death of the duty the same. all one more husband, wife, the and exclusive “§ 2149. The action shall be for the sole “§ “§ 2151. “§ 2150. The action the the [*****] caused, action, person shall find of the executor injury resulting parties of the among entitled thereto not to deceased. as amount whose death shall have been they may If the of them and the amount not alive, The action, entitled ienefit children deceased, their verdict.” be liable for the debts requested by so persons parties jury may give [Emphasis or administrator or such of them recovered shall think such shares as the shall fail thereto, from such of six and it shall be the entitled to the entitled to the the be benefit of all. months after proportioned brought or all of the added.] prosecute prosecute recovered surviving to com- by death; such any by be as of 2. “§ 2765. prosecuted vided, death of such ment in defendant had defendant in recovered shall deem tion shall be one thousand debts commenced within the amount recovered in relation to the distribution of estate left sonal action for the death of a guardian and son in his “§ 2766. the ; and, provided, family, suit, be made a representative fair That case liabilities for the death of his his executor or administrator shall dollars, by persons dying proportions provided by and the such and in the Every of any every case, continued judgment distributed mother, may his death or deceased every just, such action die such action such action shall be- of such deceased rendered in favor of be the deceased: not such case the name alive. and the suit be as person. subject year every exceeding the as child, intestate. though maintain the desertion amount ward; of ' they father, after such ac- shall personal the and the pending parties If judg- shall such Pro- jury five per- per- any and so be or estate, for the benefit of the rather “It the conclusion of one- therefore wrongful-death claim than for of the named ben- court that a the benefit is not a eficiaries. Pacific widow and children Southern Co. Wil- ‘ * * * * * * son, supra. claim estate’ provisions under the of A.R.S. 14-474. 12-6123, adopted in “In A.R.S. § Co., &L. “Dockery Arizona P. v. Central have re-enacted substance and Estate making provisions the action Hannerkam, husband, wife, benefit by Farmers, it cited wherein children, in the parents, as found wrongful-death action one held asset The claim is 1887 statute. deceased, pertaining were estate of estate. A.R.S. deceased’s existed decided statute under A, reads as follows: prior ap- they are not 1956. Thus wrongful death ‘A. An action for plicable to the instant case. in the name “The amendment of 1956 makes or wife or husband only the action is for the benefit of representative of decedent’s estate when there no ‘sur- sur- person behalf of wife, viving par- children or husband or wife, viving children or husband regard question ents.’ is in then survive, on parents, or of these if none jurisdiction probate court estate.’ of the decedent’s behalf [Em- survivors, authority there are phasis added.] personal representative to com- *5 promise claim is statute the “Under the 1956 a claim.” renum- [Footnotes ra- damages the named survivors for to bered.] damages to estate. A.R.S. ther than Dominguez quoted thenWe from v. Ga in provides, part: 12-613 § lindo, 213; Cal.App.2d 264 P.2d death, wrongful Lines, the Bright’s ‘In an for action Estate v. Air Western it Cal.App.2d 523; deems jury shall such and Ander P.2d the in- Clough, fair and reference son v. with Or. to 'the resulting brought from the death where similar suit was under wrongful-death entitled
surviving
may
who
and it was held
statutes
regard
money
belong
recover,
having
and also
that
recovered does
aggravating
depend
circum-
heirs and
mitigating or
estate
act, neg-
only,
attending
wrongful
ents
that a
authorized to
stances
and
’
* *
*
bring
[Emphasis
simply
an action
a
or
such
is
made
lect
default.
for
trustee
the benefit of the
added.]
paid
plaintiff,
in
course
“G. The amount recovered
an action
shall be
in due
wrongful
for
death
shall be distributed
of administration.”
parties provided
A
in subsection
for
recovery;
plaintiff;
Parties
Ҥ 12-612.
by
proportions provided
and in the
distribution
personal
estate
for distribution
left
wrongful
for
death
“A. An action
by
dying
persons
intestate.
in the
of the sur-
and
name
be
viving
repre-
‘personal representative’
personal
“D.
term
The
or wife or
husband
any
person
include
in this section shall
for and
as used
sentative
testamentary
person
surviving
whom letters
or
husband or
behalf of the
on
granted by compe-
parents,
wife,
none of
of administration
or if
or
children
authority under
laws of this or
survive,
tent
decedent’s
behalf
on
these
wrongful
any
for
state. The action
other
estate.
by any
father,
death
be maintained
such
of his
or in the case
“B.
representative
family,
without
issuance
the moth-
his
or
death
er,
desertion
requirement
letters,
or
or
of further
other
death of
maintain
guardian
of law.
Laws
child,
authorization
As amended
of his'
a
and
1.” §
Ch.
ward.
by
spouse,
dependents
surviving
heirs and
on account
whom could be recovered
recovery
noted that
It will be
held:
is had.
we
wrong-
provides
action for
12-612
that an
question presented
“While the
was
brought by and in the name
death be
ful
case,
the same as in the instant
wife,
per-
or
husband
198, 203,
Court,
Cole,
in Boies
per-
representative
sonal
of the deceased
917, 920,
wrong-
stated that in
sons for “and
behalf of
action;
ful-death
parents,” and
wife,
husband or
children or
“ ‘ *
**
The measure of
specifically provides that
if none
then
longer
pecuniary
is no
limited to
dam-
these
“on
of the decedent’s
survive
behalf
ages, but also includes allowance for
Pa-
estate.” The contention of Southern
things
companionship,
as loss of
conjunction “or”
cific is that
because
’
* * *
guidance.
comfort and
included, when
parents
is used the
are not
argument against
“There
can
little
surviving spouse
child. How-
is a
allowing damages
‘resulting from the
ever,
it is
in the next line
made
sorrow, stress,
death’
‘anguish,
men-
the suit does not include the estate
shock,’
suffering, pain
tal
and
under
none of these individuals survive.
case,
facts of the
where
instant
agree
I cannot
the construction
held,
Cole, supra,
as in Boies
dam-
placed
Pa-
upon this statute
Southern
ages for loss
companionship,
comfort
majority.
accepted
In
cific
guidance
are recoverable. The loss
my opinion
legis-
it
was the intent of
of companionship
certainly
and comfort
lature,
enacting
designate
sorrow,
results in
per-
and the failure to
an action for
recovery
mit such
falls short
‘fair
death,
designate
the differ-
just’
set
standards
forth
meaning
ent ones entitled
recover.
**
*
[Cases cited.].”
of the section
it could be
interpreting
parts
statutes
wife,
husband or
behalf
consistency
statutes
prime importance.
children,
they
were
fact
interpretation,
In their
possible
damaged
death and there-
so,
to do
the courts must
harmonize
by entitled
to recover. This
made
*6
adopt
reconcile laws and must
the construc-
12-613,
plain by
provides
which
that:
§
tion which harmonizes and reconciles them
“
*
* *
give
the
such dam-
with
provisions.
other
Incon-
just
ages
it deems fair and
with refer-
as
sistencies should be
avoided where
rea-
injury resulting
ence
the
from the
to
interpretation
sonable
adopted
can be
which
parties
to
the
who
plain
does not do violence to the
of
words
”
* * *
recover,
be entitled to
City
the act.
Project
of Mesa v. Salt River
legislature
Agr.
Dist.,
The intent of the
in this sec-
Imp.
91,
& P.
92 Ariz.
373
tion
to
parties injured
722,
was
to
app. dismissed,
704,
fair
P.2d
372 U.S.
just damages resulting
wrong-
1018,
from the
City
83
124;
S.Ct.
10 L.Ed.2d
of
ful death.
is particularly
plain
This
made
Superior
Tucson
County,
v.
Court of Pima
provision
that the amount recovered
parents named Kunz, by Nastro, Evans & Daniel E. between appeared to be conflict Phoenix, appellee cross-appellant. surviving parties, par event the in which HAYS, become should be allowed ents Justice. Therefore, from the plaintiffs. I dissent petition This matter is before us on opinion. majority for review of a decision of the Court of Bureau,
Appeals, American Credit
Inc. v.
Inc.,
Interiors,
Ariz.App.
Bel-Aire
Ap-
sec. 1. re-delivery
Defendant secured a bond in $1092.34, regained posses- sum addition, sion of automobile. de- answer, filed fendant which contended that because of a valid set-off there was owing open no amount account. Defend- ant also counterclaimed at- tachment. It was defendant’s contention plaintiff’s attachment was because automobile was defective and proper Coulter Cadillac failed make the repairs adjustments; attach- that the ment purpose was malicious and for sole hindering, inconveniencing harass- ing defendant, indicated fact that the value at- of the automobile tached was excess ten times the *8 plaintiff’s value of claim. Apparently necessary repairs were properly made during spring sometime 1966, prior to trial on the matter subsequent filing plaintiff’s orig-