Lueck v. Superior Court, County of Cochise

469 P.2d 68, 105 Ariz. 583, 1970 Ariz. LEXIS 330

• Court: Arizona Supreme Court
• Decided: May 12, 1970
• Docket: 9791-PR
• Status: Published

Opinions

HAYS, Justice.

This case comes to us on a petition for review 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 vacated.

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 a wrongful death action. The motion sought to amend and add the parents of the deceased as additional party-plaintiffs in an action originally brought by the surviving wife on behalf of herself and two minor children. The trial court denied the motion to amend even though the plaintiff alleged that the parents were dependent upon their deceased son for support.

The basic issue presented is whether our Death by Wrongful Act Statute, A.R.S. § 12-611 through § 12-613, authorizes parents of a deceased sop to recover for his wrongful death when there are also surviving a wife and children. The concept embodied in wrongful death recovery is purely statutory and the answer to that issue lies in the language of the statute. See In Re Estate of Milliman, 101 Ariz. 54, 415 P.2d 877 (1966) for a history of the wrongful death statute.

The following sections of the statute are dispositive of the issue herein:

Ҥ 12-612. Parties plaintiff; recovery; distribution

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.

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C. The amount recovered in an action for wrongful death 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.”

“ § 12-613. Measure of damages; non-liability for debts of decedent

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 liabilities of the deceased, unless the action is brought on behalf of the decedent’s estate.”

The appellant, Southern Pacific Company, contends that a fair reading of A.R.S. § 12-612, subsec. C indicates a legislative intention to cut off the parents’ right to sue when there are wife and children surviving, this being indicated by the fact that under the Arizona law “for distribution of personal estate left by persons dying intestate” the parents would take nothing. See A.R.S. § 14-201. They also contend that this position is further supported by the use of the disjunctive “or” in A.R.S. § 12-612, subsec. A between the words “children” or “parents.”

On the other hand, the appellee asserts that A.R.S. § 12-612, subsec. C applies only where there is no spouse, child, or parent surviving, and that the use of “or” in subsection A is in the conjunctive rather than disjunctive sense. She then argues that the Legislature could hardly have intended to give surviving beneficiaries damages measured by the respective injuries sustained by reason of the wrongful death, and then to give these damages to those who would take according to the laws of intestate succession. A poignant example is given of an infant child receiving the same amount of damages as a child who is wholly independent and supporting himself. Surely the Legislature couldn’t have intended such an unjust result!

This is not the first time this problem has arisen. The Supreme Court of Michigan wrestled with a similar problem in In Re Venneman’s Estate, 286 Mich. 368, 282 N.W. 180 (1938). The court’s resolution of the issue in that case is found in the following quotation:

“There is an obvious inconsistency between the statutory rules that the damages shall be assessed on the basis of the pecuniary loss suffered by the beneficiaries, and that such damages when recovered shall be distributed among the beneficiaries, not according to the damages suffered by them respectively, but according to the proportions fixed by the statute of descent and distribution. Nevertheless the statutory rule of distribution is mandatory, and all the statutory beneficiaries are entitled to share in the recovery in the statutory proportions, regardless of the fact that some have suffered more damages than others, or have been guilty of contributory negligence.” 282 N.W. at 183.

Thereafter, the Legislature of Michigan amended the statute to remove the alleged injustice of its provisions. See Currie v. Fiting, 375 Mich. 440, 134 N.W.2d 611, 619 (1965).

The Michigan Court also said in language we find most pertinent here:

“It may be admitted that the statutory provision as to distribution works a hardship and possible injustice to Mrs. Venneman, still we are compelled to follow the clear and express language of the law as enacted by the legislature. The wisdom of the statute is not a matter for the consideration of the court, but is wholly within the control of the legislature.” 282 N.W. at 184.

Some of the other- cases which have considered this problem include: Northern Indiana Power Co. v. West, 218 Ind. 321, 32 N.E.2d 713 (1941); Moseley v. Beard, 203 Ark. 731, 158 S.W.2d 917 (1942); and Murphy v. Duluth-Superior Bus Co. 200 Minn. 345, 274 N.W. 515 (1937). See also cases and annotations in 14 A.L.R. 509, 112 A.L.R. 30, and 171 A.L.R. 204.

It is our opinion that there is no ambiguity in this statute which cries out for the wizardry of statutory construction. ' Whether we like the result or not, we find the words to be plain and their meaning to be evident. When we find that the common law or “judge-made law” is unjust or out of step with the times, we have no reluctance to change it. Stone v. Ariz. Hwy. Comm., 93 Ariz. 384, 381 P.2d 107 (1963). Here , we are dealing with a legislative enactment, and' it is proper that only the Legislature correct any deficiencies therein.

We hold that the parents of the deceased have no right to recover for his wrongful death because there are also surviving a wife and children. The trial court is affirmed.

LOCKWOOD, C. J., STRUCKMEYER, V. C. J., and UDALL, J., concur.