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Griffen v. Cole

Supreme Court of Arizona

December 7, 1942

F. W. GRIFFEN, as Administrator of the Estate of Adolf Launer, Deceased, Appellant,
v.
DALTON H. COLE and OLIVER H. MAUD, Co-partners, Doing Business Under the Firm Name and Style of MARTIN MORTUARY, Appellees

APPEAL from a judgment of the Superior Court of the County of Pinal. H. G. Richardson, Judge. Judgment affirmed.

Messrs. Stockton and Karam, Mr. Eli Gorodezky and Mr. J. W. Cherry, Jr., for Appellant.

Mr. Chas. H. Reed, for Appellees.

OPINION

Page 990

[60 Ariz. 84] McALISTER, J.

This action was brought by Dalton H. Cole and Oliver H. Maud, co-partners, doing business under the name of Martin Mortuary, against F. W. Griffen, administrator of the estate of Adolf Launer, deceased, and, from a judgment in favor of the plaintiffs for the amount sought, defendant appeals.

The record discloses that in response to a call from the office of the sheriff of Pinal County, about midnight, [60 Ariz. 85] November 19, 1939, the plaintiffs sent their ambulance 35 miles west of Florence to a point on the highway where a car had run into a bridge resulting in the death of the driver and owner, Adolf Launer. They took the body to their mortuary in Florence, and Cole, one of the plaintiffs, embalmed it by the hypodermic method, wrapped it with cotton and prepared a hardening compound. The body was then placed in a casket and sealed and remained in the mortuary for two days where anyone could view it.

During these two days the plaintiffs made an investigation as to the value of the estate of the deceased, who had died intestate and without relatives in the United States. They inquired of the mining company in Superior where the deceased had worked and of the bank at Superior, and also consulted Attorney Tom Fulbright of Florence, who had represented Hanna Launer, former wife of the deceased, in a divorce action in Pinal County in 1939. They learned that deceased owned stocks of the value of $1,500 to $1,800; that he had some $900 or $1,000 on deposit in the bank; that he had an undivided one-half interest in 120 acres of land located in Sacramento County, California, of the approximate value of $40 an acre; that there was insurance on the car involved in the accident; and that the whole estate had a probable value of between $6,000 and $7,000.

The body as prepared by the plaintiffs was procured from them and taken to Superior for burial by Harold Smith, the mortician at that place, and for this service Smith received $137.

On January 15, 1940, Hanna Launer, the divorced wife of deceased, was appointed administratrix of the estate, and on January 26, thereafter the plaintiffs filed with her a claim for their services, verified by plaintiff Maud, for $696.49, which was made up of the following items: telephones and telegrams endeavoring to find relatives of the deceased, $11.49; going for and returning [60 Ariz. 86] the body of deceased from the place of the accident to Florence, $35; embalming the body $50; casket and outside box, $600.This claim was disallowed by the administratrix on February 29, 1940, upon the ground that the amounts were unreasonable and the plaintiffs promptly advised of this action. On October 28, 1940, the defendant qualified as administrator, the administratrix having been theretofore removed, and on August 2, 1941, 17 months after the claim had been disallowed, the plaintiffs filed this action for the funeral expenses.

In his answer the defendant alleges, first, that the cause of action attempted to be stated in the complaint was barred by the provisions of subdivision 3, section 29-201, Arizona Code 1939, in that it was a liability, created by statute, and more than one year had elapsed since the cause of action accrued; and second, that the charges for the services and the merchandise furnished were unreasonable in view of the rule that their value should be determined in accordance with the ability of the deceased's estate to pay, his social condition and station in life being considered.

Appellant assigns five errors which he discusses under four propositions of law, but he relies for reversal mainly on two of these. The first is that the items of the account were barred by limitation under subdivision 3, section 29-201, Arizona Code 1939, reading as follows:

"29-201. One-year limitation. -- There shall be commenced and prosecuted within one (1) year after the cause of action shall have accrued, and not ...


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