(dissenting).
I am dissatisfied with the treatment by the majority of the serious questions raised in this appeal in holding that the Sheriff of Maricopa County, L. C. Boies, and the Trinity Universal Insurance Company are liable in damage for the death of Lewis Pearl Cole.
The basic facts giving rise to this action are relatively simple. At about the hour of 10:00 p. m. on November 15, 1957, Tony Silvio attempted to take into custody and transport Cole to the Maricopa County Hospital. Prior thereto, at the instigation of Cole’s wife, an order had been issued by the Superior Court of Maricopa County pursuant to A.R.S. § 36-501 et seq. (amended by Laws of 1958) for detention of Cole in the county hospital as a mentally ill person. Silvio advised Cole that he had come to take him to the county hospital but Cole refused to go with him. Thereafter, in the language of Eva Mae Cole, plaintiff and wife, Silvio said:
“ ‘I’ll take you one way or another if I have to kill you,’ ”
Then:
“and just that quick he drawed out his gun and while he was doing that my husband stepped back a little and he shot him, and he fell, and then Mr. Silvio ran out of the door and he never came back, * *
But, the fact of this unnecessary killing should not be allowed to cloud the issue as to where liability for damages should be placed.
Three theories are suggested by the evidence as possible grounds of liability of Boies. They must be separately considered in order to properly analyse the responsibility for what occurred and should not be lumped together to support a judgment which is attacked as contrary to the law and evidence.
FIRST: Only.if Silvio was a duly appointed, qualified and acting deputy, sheriff of Maricopa County as pleaded in plaintiff’s complaint would Sheriff Boies and his bonding company be liable. Miles v. Wright, 22 Ariz. 73, 194 P. 88, 12 A.L.R. 970.
The plaintiff, Eva Mae Cole, alleged in her complaint for the wrongful death of her husband
“that defendant Tony Silvio at all times herein mentioned was and now is a duly appointed, qualified and acting deputy sheriff in Maricopa County, Arizona.”
*208This allegation was never amended ^either at the trial or later. In the end, therefore, plaintiffs case against Sheriff ■Boies and the Trinity Universal Insurance Company must rest or fall on the establishment of the fact that Silvio was a duly appointed, qualified and acting deputy sheriff.
. The burden of proving agency rests upon the party asserting it. Cameron v. Lanier, 56 Ariz. 400, 108 P.2d 579; United States Smelting, Refining and Mining Exploration Company v. Wallapai Mining and Development Company, 27 Ariz. 126, 230 P. 1109. It was plaintiff’s burden to establish Silvio’s agency as a duly appointed and qualified deputy sheriff. In this respect the proof wholly fails.
A.R.S. § 11-409.provides that county officers “ * * * may, by and with the consent of, and at salaries fixed by the board [of supervisors], appoint deputies, * * *. The appointments shall be in writing, and filed in the office of the county recorder.”
The statute, on its face, requires these elements :
1. An appointment in writing;
2. The appointment be with the consent of the Board of Supervisors; and
3. That it be filed in the office of the county recorder.
A.R.S. § 11-409 is a public policy, statute. Its purpose is to prevent county officials from indiscriminately, employing persons to exercise the functions of an office. While a public officer has a right to determine who shall be his deputies, Thomas v. What-com County, 82 Wash. 113, 143 P. 881, the acts evidencing the legality of the appointment must be present; otherwise, the statute would be meaningless.
The evidence established that Silvio was issued the card here reproduced.
*209
We have previously held, State v. Stago, 82 Ariz. 285, 312 P.2d 160, that such a card was sufficient to fulfill the statutory requirements of an appointment in writing, that no particular manner is required for the board to evidence its consent, and that the filing with the county recorder was merely directory. Stago is not precedent for this case. There, the Board of Supervisors evidenced its consent to the appointment of a deputy sheriff by approving the bond given by him to indemnify the sheriff against the deputy’s wrongful act. Plere, the majority rely on the employment of the Board of Supervisors to supply ambulance service to the county as consent to an appointment as a deputy sheriff.
The facts of Silvio’s employment to supply ambulance service are these: For some years prior to November 15, 1957, Silvio, doing business as the Phoenix Respiratory and Ambulance Service, had been under contract with the Maricopa County Board of Supervisors to supply “routine” and “emergency ambulance service” for Maricopa County. This contract was let on public bids. It provided for the furnishing of ambulances and ambulance equipment with drivers. Since Silvio’s contract with the Board of Supervisors is the key to his employment, his bid containing the terms of his contract is reproduced in full.
*210TONY SILVIO TELEPHONES
E. J. SILVIO AL. 3-7553-AL, 8-0012
PHOENIX RESPIRATOR & AMBULANCE SERVICE
537-539 EAST MORELAND PHOENIX, ARIZONA
June 6, 1957
Clerk of the board of Supervisors Courthouse Annex — Phoenix, Arizona Serial No. 598
Bid for emergency and routine ambulance service and respirator and oxygen service for Maricopa County.
Calls for service for all activities of the County (except the Sheriff’s Office) within a radius of ten (10) miles of Central Ave. and Washington, per patient----------------------------------------------$4.50
Mileage will be figtired from point of pick up to destination by speedometer reading (as per our bid — first 10 miles $4.50 additional miles 50^ per mile.)
Oxygen per small tank-------------------------------------------$1.50
Waiting time per hour (prisoners & detention cases)--------------$4.50
Calls for handling of prisoners and detention cases for all areas in Maricopa County. Per patient, first ten (10) per mile--------------$4.50
For each additional mile above the first ten (10) per mile------------$ .50
EQUIPMENT
One Cadillac Ambulance
One Cadillac Sedan Ambulance
One DeSota Sedan Respirator & First-aid car. Radio equipped.
All vehicles are equipped with respirators, oxygen and all other supplies listed in specifications in calls for bids for ambulance service; Serial No. 598
We agree to comply with all specifications listed in calls for bids for ambulance service in Serial No. 598.
PHOENIX RESPIRATOR & AMBULANCE SERVICE
(s) Anthony Silvio
Anthony Silvio — Owner Dated: June 6,1957
(Emphasis supplied.)
*211I cannot understand how it is possible to equate Silvio’s independent employment by the Board of Supervisors with consent to appointment as a deputy sheriff. Consent is not a vacant or neutral attitude. De Klyn v. Gould, 165 N.Y. 282, 59 N.E. 95, 80 Am.St.Rep. 719. Consent implies knowledge of the facts. People ex rel. Vestuto v. O’Connor, 351 Ill.App. 539, 115 N.E.2d 810; State v. Wheeler, 38 N.D. 456, 165 N.W. 574. There is simply no evidence that the Board of Supervisors or any member knew or was aware that Silvio acted or purported to act, if he ever did, as a deputy sheriff for Maricopa County.
The evidence is contrary to the majority’s conclusion of consent, being clear and uncontradicted that Silvio’s appointment card was never intended to create the relationship of principal and agent in the sense of sheriff and regular deputy. The card given to Silvio by Sheriff Boies was an identification card to assist him in his ambulance service. Boies testified without contradiction relative to Silvio’s card:
“Q Was that one signed by you ?
“A It was.
“Q What was your intention when you signed it?
“A Merely as an identification card.
“Q As what did it identify Tony Silvio ?
“A Well, the main reason that that was issued to Tony is on these rescue missions that he goes on, at many times there are so many people there that you have difficulty in getting to the scene of the accident or whatever it may be * * *.
“Q This was to permit him to get access as a deputy sheriff ?
“A It necessitated getting access to the scene of whatever it might be.
“Q Anywhere he needed to go?
“A That is right.”
Boies’ testimony is that similar cards were given to the press, judges, bailiffs and probation officers. There is not one word of testimony that Silvio ever wore a sheriff’s badge or uniform or performed any of the duties or functions of office of the sheriff. Agency is contractual and must rest upon consent of the parties. Valley Nat. Bank of Phoenix v. Milmoe, 74 Ariz. 290, 248 P.2d 740. It is too plain for further argument. Silvio was not a regular deputy sheriff of Maricopa County.
By giving the card the fullest possible import and even assuming consent by the Board of Supervisors, Silvio’s status would be, at ‘the most, no more than that of a special deputy with limited authority. The power of a sheriff to appoint deputies for a limited purpose is well recognized.
*212“It will be noted that none of the General Code sections above mentioned contains any provisions as to the appointment or employment of ‘special deputies’ or ‘special deputy sheriffs.’ Furthermore, there is no statutory definition of ‘special deputy’ or ‘special deputy sheriff.’ However, it will be noted that under the common law the sheriff had the right to appoint an under-sheriff and as many general or special deputies to assist him in the discharge of his various duties as the public service may require, and that such deputies act for the sheriff in his name and stead and are the sheriff’s agents and as such agents may do any ministerial act that the sheriff may do.
* l|C Í¡C * ^ *
“The time and extent of the exercise of the authority of the sheriff by such special deputy is a matter solely for the determination of the sheriff, as the deputy acts as his agent. A deputy sheriff may be special in the sense that he is authorised to perform only part of the duties of the sheriff, or may be special in the sense that he is appointed by the sheriff without being assigned to perform any duties of the sheriff but being subject to assignment to duty by the sheriff from time to time as the sheriff in his discretion may determine.” State ex rel. Geyer v. Griffin, 80 Ohio App. 447, 457, 76 N.E.2d 294, 300. (Emphasis supplied.)
It is uncontradicted that the card issued by Boies was not a general appointment as a deputy sheriff but for identification and the limited purpose of assistance in obtaining access to the scene of accidents in Silvio’s ambulance service.
The identification card on its face limits Silvio’s purported appointment. It recites a regular appointment as a deputy sheriff and that Silvio is the sheriff’s lawful deputy to act in all matters, but it had typed upon it the words “AMBULANCE SERVICE”. These words must be given some significance; otherwise why would they be placed upon the card ? The only possible construction is that Silvio was limited to acting for the sheriff in his duties of ambulance service. The card on its face was restricted to those purposes.
It should be here stated that Silvio was not paid a salary as a deputy sheriff, that he never claimed the right to make an arrest and that he never, at any time, arrested anyone, with the possible exception that on one occasion he arrived with his ambulance at a time when two deputy sheriffs were attempting to take into custody a violently insane person. After he arrived, he joined with the officers in subduing that person.
I can only conclude that Silvio was not a deputy sheriff simply because he was not *213appointed according to law but if consent •could possibly be inferred, the appointment was limited and did not include the authority to make arrests.
SECOND: If it can be said that Silvio had the ostensible appearance of a deputy sheriff, because of a radio and the sheriff’s star on his ambulance, such appearance would not establish the liability of Boies for Silvio’s act in shooting Cole.1 This Court, in Hammels v. Britten, 53 Ariz. 112, 85 P.2d 992, adopted the rule of the Restatement of the Law of Agency, § 265:
“ ‘General Rule. Except where there has been reliance by a third person upon the appearance of agency, one who has manifested that another is his servant or other agent does not thereby become liable for the other’s tortious conduct, although it is apparently authorized or is within the apparent scope of employment.’” 53 Ariz. 112, 117, 85 P.2d 992, 994. (Emphasis supplied.)
The Court further quoted from the comment to the General Rule:
“ 'The fact that a person manifests to a third person that another is his agent or servant does not of itself cause harm. It is only where there has been some reliance by a third person upon the appearance of a principal and agent or a master and servant re-' lationship that such appearance can be the basis of liability, and then only if a subsequent harm is in some manner induced by the reliance. Except in such cases, therefore, a person is not liable for the trespass, negligence, defamation, or other tort of an apparent servant or agent. * * * ’ ” 53 Ariz. 112, 118, 85 P.2d 992, 994. (First emphasis supplied, second emphasis in original.)
Accord Restatement of Agency, 2nd Ed., § 265.
If one is not an agent but is clothed by another with the appearance of agency, in order for the purported principal to be held for the tortious acts of the agent, the harm which results to a third person must have been caused by reliance on the appearance of agency, and the reliance must have induced the injury. By no stretch of the imagination is it possible to conceive how the appearance of agency could have resulted in Cole’s death. Cole was not shot because he relied on the appearance of Silvio as a deputy sheriff. Nor was *214his death induced by reliance on that fact. Liability cannot be predicated on the grounds of ostensible agency.
THIRD: While there are only two types of agency, actual and ostensible, Canyon State Canners v. Hooks, 74 Ariz. 70, 243 P.2d 1023, actual agency may arise from implication; that is, be implied from the facts and circumstances. Arizona Storage and Distributing Company v. Rynning, 37 Ariz. 232, 293 P. 16. In the light of the majority’s conclusions as to liability, it is necessary to examine the law and facts which might support an inference of implied agency.2
The principal opinion picks out certain bits of evidence to suggest, without so stating, that somehow Silvio had implied authority to take Cole into custody on the evening of November 15, 1957. At about 6:45 p. m., Silvio went to Cole’s house where an inquiry developed that Cole was not at home. At that time a regular deputy sheriff had been sent and was there present with him.
“Q. Was there any other deputy in the neighborhood?
“A. Yes, there was another car, a deputy car, with me at the scene. I went alone in my car, but there was a deputy met me at the scene * *
Silvio then telephoned back to Sergeant Barnes at the sheriff’s office and told him that Cole was not at home.
It is at this point that the words “pick up” were used. Silvio testified to this conversation with Barnes:
“ * * * I didn’t know what time they would be home; and I didn’t want to stay out there all night waiting to pick him up and I wanted to know if it would be all right to go out the next morning and pick him up. And he says to me ‘No.’ He says, ‘He has got to be picked up tonight because his wife is very scared of him and he will kill her if we don’t pick him up.’ ” (Emphasis supplied.)
Silvio then waited until 10:00 p. m. and went back to the Cole residence. There is no explanation why Silvio went back to the Cole residence alone. Silvio further testified:
“I went to the door and knocked. Some one, I don’t know which one of them, came to the door and let me in. I told them that I was from the sheriff’s office and I came there to pick up Mr. Cole, to take him to the County Hospital for a medical examination and they told me to come in. * * * ” (Emphasis supplied.)
*215The foregoing are typical examples of the use of the words “pick up” as reflected in Silvio’s testimony. No other witness used these words except Silvio and the plaintiff never asked him to explain the meaning he attached to them.
It was Silvio’s obligation to “pick up” patients in his ambulance service. The bid specifically provided “mileage will be figured from point of pick up to destination by speedometer reading.” The principal opinion attaches to the words “pick up” the meaning of “to take into custody, arrest,” citing Webster’s Third International Dictionary. The verb phrase “pick up,” as defined by Webster’s, has no less than twenty different usages. Some common examples given as the meaning of “pick up” are: To lift from the ground; to do over, as in knitting; to bring within range of vision or hearing, as by telescope or radio; to pick up a girl, as in a bar; to prepare a meal; to gain speed; to gather up one’s belongings, as to pick up a room; to take passengers or freight into a vehicle. The noun “pickup” has twenty-two meanings, among these are: Taking aboard of passengers; and Arrest. Manifestly, the words “pick up” as used in Silvio’s bid is in the sense of “taking aboard passengers.” What further or additional meaning Silvio gave to the words, if any, is unknown; but certainly there is no justification for arbitrarily shifting the meaning to arrest and hence concluding that “Silvio had been arresting people on order' of the sheriff’s department for four years,” when by his contract he had been transporting people from the point of pick up for four years, including “prisoners and detention cases” for the sheriff’s office.
What Sergeant Barnes, who was deceased at the time of trial, meant when he said to Silvio, “He has got to be picked up tonight,” likewise finds no explanation in the record. Barnes unquestionably intended for Cole to be taken into custody that night. However, Barnes did not say, “You arrest him tonight,” which is what would normally have been said if Silvio was to make the arrest. Every other use of the words “pick up” and “pick him up” by Silvio, from the context in which they are used, is completely consistent with the performance of his job which the Board of Supervisors hired him to do. Why Silvio took it upon himself to attempt to force Cole to go with him was not disclosed unless it was because he “didn’t want to stay out there all night waiting.”
But even assuming that Barnes intended for Silvio, in this particular instance, to make the actual arrest and Silvio so understood, Boies cannot be held responsible for the delegation of duties to a subagent without his authority, knowledge or acquiescence.
A principal cannot be held responsible for the actions of those appointed to act for *216him by another without his authority; Such a person is no more than an agent of an agent, not the agent of the principal.
“There is no evidence whatever that M. I. Phillips, conceded to have been an agent of the appellant, had any express authority to employ for his principal his son J. W. Phillips. * * * The test of liability of the principal for the tort of a subagent is believed to be the existence of authority, express or implied, given the agent to make the subagent the agent of the principal. Without such authority, a subagent would simply be the agent of the agent, but not of the principal.” Gulf Refining Company v. Shirley, 99 S.W.2d 613, 615 (Tex.Civ.App.).
And see 3 Am.Jur.2d Agency, § 157, p. 546. There is no evidence that Barnes had the authority to appoint subagents to make arrests.
As has already been pointed out, there is no evidence that Silvio ever before personally served detention orders. The majority attach significance to the fact that Silvio picked up the detention orders at the sheriff’s office. Obviously, when a mentally ill person is to be delivered to the county hospital some legal authority must accompany that person as authority for his detention. The orders would necessarily go with the ambulance as a matter of routine to be delivered with the patient to the hospital without which he could not be admitted. Certainly, a peace officer making an arrest by virtue of legal process is not required to have the warrant in his possession if he knows that a warrant in fact exists. The deputy sheriff making the actual detention would not need possession of the detention order to make a lawful arrest. But Silvio would need it for delivery to the proper personnel at the Maricopa County Hospital.
Silvio at no time purported to work for the sheriff, even if conceivably he thought he had some indefinite authority by reason of the identification card. He testified that he relied exclusively upon his contract with the county in ambulance service. This contract, as an incident of his work, fairly construed, required him to take passengers into his ambulance under certain circumstances, sometimes at the direction of the sheriff. His ambulance was to transport them and he was paid for this and only this. He was not hired to make arrests. He did not customarily or ever make arrests. He did not testify that he ever made the initial detention of a mentally disturbed person.
It is axiomatic in the law of agency that one is not liable for the acts of another who, without authority, assumes to act for him in the capacity of an agent or on his behalf.
*217“ ‘ “The agent’s authority, moreover, may not be shown merely by proving' that he acted as agent. A person can no more make himself agent by his own acts only than he can by his own declarations or statements. * * * ”
Mechem on Agency, § 289.’ ([Brutinel v. Nygren,] 17 Ariz. [491] at page 497, 154 P. [1042] at page 1044 [L.R.A. 1918F, 713].)” Bank of America Nat. Trust & Sav. Ass’n v. Barnett, 87 Ariz. 96, 100, 348 P.2d 296, 299.
While Silvio is undoubtedly personally liable for his conduct, I can find no reasonable evidence to support a judgment against Boies or Trinity Universal Insurance Company. Where facts are found by an appellate court to be undisputed by reason of the evidence being without material conflict and only a question of law is involved, the Court should direct that final judgment be entered. Silva v. DeMund, 81 Ariz. 47, 299 P.2d 638; State ex rel. Conway v. State Land Department, 62 Ariz. 248, 156 P.2d 901; A.R.S. § 12-2103. This cause as to Boies and Trinity Universal Insurance Company should be reversed with directions to enter judgment in their favor. Since I am of the opinion that this case should be disposed of in accordance with the conclusions stated, I do not reach the further questions decided by the majority.
McFARLAND, J., concurs in this dissent.. There is no evidence that Cole saw Silvio’s ambulance since Cole was in the house when Silvio arrived and hence that he saw the star or radio. Further, it should be emphasized that there is no evidence that Silvio wore a sheriff’s badge or uniform or that lie showed the identification card at the Cole home or that he stated he was a deputy sheriff. Silvio said: “Como on, Mr. Cole, we have, I’m going to take you out to the County Hospital for observation.”
. The plaintiff requested and the trial court instructed over the defendants’ objections in such a manner as could conceivably be considered an instruction on implied agency. This instruction bus not been discussed or alluded to by the majority in the decision although raised by Boies’ assignment of error No. 5.