Bowslaugh v. Bowslaugh
| Decision Date | 07 August 1979 |
| Docket Number | No. 1,CA-CIV,1 |
| Citation | 617 P.2d 28,126 Ariz. 520 |
| Parties | Toni M. BOWSLAUGH, as surviving mother of Maureen and Karen Bowslaugh, deceased, for and on behalf of herself, individually, and on behalf of Jeanne Bowslaugh and Laura Bowslaugh, surviving sisters of Maureen and Karen Bowslaugh, deceased, Appellants, v. Alan P. BOWSLAUGH, Appellee. 4049. |
| Court | Arizona Court of Appeals |
Treon, Warnicke, Dann & Roush, P. A. by B. Michael Dann, Michael J. Valder, Phoenix, for appellants.
Shimmel, Hill, Bishop & Gruender, P. C. by Charles A. Finch, Susan R. Bolton, Phoenix, for appellee.
This is an appeal from the trial court's dismissal of a wrongful death action. The principal issue concerns whether an action may be maintained against a parent for the wrongful death of a child.
The case arises out of a fire allegedly caused by the negligence of the appellee, Alan P. Bowslaugh, in assembling and installing certain lamps in the master bedroom of the Bowslaugh home. The fire took the lives of two of the appellee's four daughters. The deceased children were survived by their parents and two sisters.
This appeal raises two principal issues. The first is the propriety of the trial court's dismissal of the claim filed against appellee by and on behalf of appellant, Toni Bowslaugh, appellee's wife and the mother of the deceased children. The second is whether the trial court erred in refusing to permit an amendment of the complaint to allege a cause of action by the personal representative of the decedents' estates for the benefit of those estates. We hold that the trial court correctly dismissed the action maintained by Mrs. Bowslaugh, but erred by refusing to allow the personal representative of the estates to maintain the wrongful death action on behalf of the children's estates.
Any discussion of suits involving parents and children in Arizona must begin with our Supreme Court's decision in Streenz v. Streenz, 106 Ariz. 86, 471 P.2d 282 (1970), abolishing the doctrine of parental immunity. The Court there weighed the various arguments advanced in support of immunity, including the disturbance of domestic tranquility, the danger of fraud and collusion, and the possibility that the parent might indirectly benefit from his or her own negligence. The Court rejected these arguments in favor of permitting compensation for the consequences of negligent conduct.
The difference between this case and Streenz, which appellee deems to be determinative, is that the children here died, and the action is therefore not for personal injuries but for wrongful death. Our statutes provide for a wrongful death cause of action in every case in which the injured party would have had a cause of action if death had not ensued. A.R.S. § 12-611. Appellees contend, however, that under our wrongful death statute there is no proper party to maintain this action. With respect to parties plaintiff, our wrongful death statute, § 12-612(A), provides:
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.
Since the deceased children were not survived by spouses, their mother filed a complaint as the surviving parent. Appellees correctly argued that Mrs. Bowslaugh was not a proper party to bring suit against her husband because, although the doctrine of blanket parental immunity has been abolished, our courts have retained the doctrine of interspousal immunity. Burns v. Burns, 111 Ariz. 178, 526 P.2d 717 (1974); Huebner v. Deuchle, 109 Ariz. 549, 514 P.2d 470 (1973). That doctrine is partially based upon Arizona law that damages for personal injuries suffered by either spouse are community property. Heimke v. Munoz, 106 Ariz. 26, 470 P.2d 107 (1970); Silvestri v. Hurlburt, 26 Ariz.App. 243, 547 P.2d 514 (1976). The negligence of one spouse is imputed to the other in order to prevent the negligent spouse from benefiting by his wrongful act. Muhammad v. United States, 366 F.2d 298 (9th Cir. 1966), cert. denied, 386 U.S. 959, 87 S.Ct. 1029, 18 L.Ed.2d 108 (1967); Tinker v. Hobbs, 80 Ariz. 166, 294 P.2d 659 (1956). Moreover, since the negligence in this case arose out of an activity for the benefit of the community, the property of the community would be subject to liability. Cook v. Cook, 26 Ariz.App. 163, 547 P.2d 15 (1976); Garrett v. Shannon, 13 Ariz.App. 332, 476 P.2d 538 (1970). See also Hays v. Richardson, 95 Ariz. 64, 386 P.2d 791 (1963), modified, 95 Ariz. 263, 389 P.2d 260 (1964).
We therefore agree with appellee that this action may not be maintained by Mrs. Bowslaugh. Further, we do not believe that Alan Bowslaugh's renunciation of his interest in any recovery by Mrs. Bowslaugh is sufficient to remove the infirmities inherent in a suit by one...
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Bowslaugh v. Bowslaugh
...HAYS, Justice. Appellee Alan P. Bowslaugh petitioned this court for review of the Court of Appeals decision in Bowslaugh v. Bowslaugh, 126 Ariz. 520, 617 P.2d 28 (App.1979). We take jurisdiction under A.R.S. § 12-120.24 and Rules of Civil Appellate Procedure, rule 23, and hereby vacate the ......