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Rice v. Tissaw

Supreme Court of Arizona

April 28, 1941

HAL W. RICE, E. C. HOULE, R. D. KENNEDY, CHARLES W. SECHRIST, E. W. PHILLIPS and W. W. WATKINS, Appellants,
v.
PAUL TISSAW, Appellee

APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Judgment reversed.

Messrs. Moore & Romley and Messrs. Sloan, Scott & Green, for Appellants.

Mr. Richard G. Johnson and Mr. Lemuel P. Mathews, for Appellee.

Mr. Jacob Morgan, Amicus Curiae.

OPINION

Page 867

[57 Ariz. 232] LOCKWOOD, C.J.

Paul Tissaw, plaintiff, brought suit against Hal W. Rice, E. C. Houle, R. D. Kennedy, Charles W. Sechrist, E. W. Phillips and W. W. Watkins, defendants, for damages. The case was tried to the court sitting with a jury and judgment rendered in favor of plaintiff for the sum of $2,000 actual, and $4,000 punitive, damages, whereupon this appeal was taken.

Plaintiff's counsel admitted in oral argument that the complaint was not a model of pleading, and we agree with him. As well as we can determine from a careful examination thereof, it alleges in substance as follows: On August 3, 1937, plaintiff was an employee of Coconino county as a laborer, doing construction work. On that date, while engaged in his employment, he was injured by a fall of cinders upon him. He reported the accident to the Industrial Commission of Arizona, hereinafter called the commission, and it found that he was entitled to compensation for injuries received as a result of the accident, and paid him $90 per month for approximately nine months. [57 Ariz. 233] During the time he was drawing compensation, defendants Kennedy, Houle and Watkins had examined him, and were well acquainted with his condition as it existed on May 9, 1938. On that date the commission desired to stop all further compensation

Page 868

to plaintiff, and sent him to defendants for a medical examination. These defendants were all doctors regularly employed by the commission and knew that if they rendered a false report as to the condition of plaintiff the commission would be justified, as a matter of law, on the face of the report in taking the action which it desired to take as aforesaid, and being willing, on account of the fact that they had received certain compensation from the commission for their services, to render any report, true or false, which the commission desired, they "willfully, deliberately, wrongfully, unlawfully and purposely did falsely report to the Industrial Commission" that plaintiff was cured of the injuries which he had received in the accident and the ill effects resulting therefrom had disappeared. Plaintiff then alleged that he had never recovered from the result of the accident, and had defendants reported truly on his condition he would have been entitled to, and would have received, further compensation, and that he had been damaged by the false report of defendants in the sum of one hundred thousand dollars actual, and fifty thousand dollars punitive, damages.

The complaint apparently attempts to set up a conspiracy between the commission and the defendants to prevent plaintiff from receiving industrial compensation to which he was entitled under the law by means of a false report made to the commission as to his physical condition and the cause thereof, which report the commission knew at the time to be false.

The action, if it has any basis at all, is one for false and fraudulent representations by defendants. We have defined the elements of actionable [57 Ariz. 234] fraud in Moore v. Myers, 31 Ariz. 347, 253 P. 626, 628, as follows:

"(1) A representation; (2) its falsity; (3) its materiality; (4) the speaker's knowledge of its falsity or ignorance of its truth; (5) his intent that it should be acted upon by the person and in the manner reasonably contemplated; (6) the hearer's ignorance of its falsity; (7) his reliance on its truth; (8) his right to rely thereon; (9) his consequent and proximate injury. 26 C.J. ...


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