Brumbaugh v. Pet Inc., 2

• Decision Date: 19 February 1981
• Docket Number: No. 2,CA-CIV,2
• Citation: 628 P.2d 49,129 Ariz. 12
• Parties: Sandra BRUMBAUGH, surviving natural mother of Paul Brumbaugh, a deceased minor, on her own behalf, Plaintiff/Appellant, v. PET INCORPORATED, Defendant/Appellee. 3743.
• Court: Arizona Court of Appeals

Page 49

628 P.2d 49

129 Ariz. 12

Sandra BRUMBAUGH, surviving natural mother of Paul Brumbaugh, a deceased minor, on her own behalf, Plaintiff/Appellant, v. PET INCORPORATED, Defendant/Appellee.

No. 2 CA-CIV 3743.

Court of Appeals of Arizona, Division 2.

Feb. 19, 1981.

Rehearing Denied April 8, 1981.

Review Denied May 5, 1981.

Stompoly & Even, P.C. by Barry Kirschner, Tucson, for plaintiff/appellant.

Jones, Dickerman, Nuckolls, Edwards & Smith, P.C. by Philip Hawley Smith, Tucson, for defendant/appellee.

OPINION

HOWARD, Judge.

This appeal arises from the entry of summary judgment in favor of appellee, Pet Corporation, and against appellant, Sandra Brumbaugh.

The facts necessary for a determination of this case are as follows. Paul Brumbaugh, appellant's minor son, was killed in an automobile accident in which his father, William Brumbaugh, was driving. At the time of the accident, William was engaged in activities within the scope of his employment for appellee, Pet. Appellant, as the surviving natural mother of Paul, sued appellee on behalf of herself based solely on the negligence of its employee, her husband, William. In granting appellee's motion for summary judgment, the court determined that appellee could not be held liable "solely on the derivative negligence of its employee, William Brumbaugh." We reverse.

Appellant raises two issues for our consideration on appeal. First, that appellee is a proper defendant and that it cannot benefit from the immunity granted its agent under the doctrine of interspousal immunity and second, that any recovery from appellee would be appellant's personal and separate property.

The question of whether an employer can claim immunity from suit when its negligent agent possesses immunity is one of first impression in Arizona. Absent authority to the contrary, Arizona will follow the Restatement position which, in this case, supports appellant's claim. Barnum v. Rural Fire Protection Company, 24 Ariz.App. 233, 537 P.2d 618 (1975).

The rule that the principal cannot assert immunities personal to its agent is found in the Restatement (Second) Agency Sec. 217(b), pp. 468-69 which provides:

"In an action against a principal based on the conduct of a servant in the course of employment:

(b) The principal has no defense because of the fact that:

(i) he had a non-delegable privilege to do the act, or

(ii) the agent had an immunity from civil liability as to the act."

Comment b further illustrates the point:

"b. Immunities. 'Immunity' is a word which denotes the absence of civil liability for what would be a tortious act but for the relation between the parties or the status or position of the actor. Illustrative of the immunities created by a relation between the parties are those resulting from the relation of parent and child and of husband and wife.... Immunities, unlike privileges, are not delegable and are available as a defense only to persons who have them.... where the principal directs an agent to act, or the agent acts in the scope of employment, the fact that the agent has an immunity from liability does not bar a civil action against the principal. Thus, where a servant in the scope of employment negligently runs over his wife, an action against the master by the injured wife is not barred. This result is in accordance with the rule stated in this Section and is the rule adopted in most of the states." (Emphasis added) Id. at 469-70.

While some states favor the rule prohibiting recovery from the employer, the modern trend and majority of courts have adopted the rule that the doctrine of interspousal immunity does not relieve the employer of one spouse from liability for injury to the other resulting from the spouse-employee's negligence while acting within the scope of employment. Fields v. Synthetic Ropes, Inc., 9 Storey 145, 59 Del. 145, 215 A.2d 427 (1965); Mainer v. Cambron Construction Co., 237 So.2d 275 (D.C.Fla.App.1970); Steward v. Borough of Magnolia, 134 N.J.Super. 312, 340 A.2d 678 (1975); Prosser, Torts (3rd Ed.) Sec. 116 at 890; Annot. 1 A.L.R.3d 677, 689-99 and 702-06. We think this is the better rule and hold that appellee is not immune from suit on the basis of its agent's assertion of immunity from suit by appellant. ¹

Appellant's second assertion, that recovery from appellee would be her separate property, is also correct. Jurek v. Jurek, 124 Ariz. 596, 606 P.2d 812 (1980). In Jurek, our supreme court stated that the body which a spouse brings to the marriage is his separate property and to that extent, "... compensation for injuries to his personal well-being should belong to him as...