Donn v. Kunz, Civil 3904

• Decision Date: 06 June 1938
• Docket Number: Civil 3904
• Citation: 52 Ariz. 219,79 P.2d 965
• Parties: BURSON DONN, by WALTER E. DONN, His Guardian ad Litem, Appellant, v. CARL F. KUNZ, Appellee
• Court: Arizona Supreme Court

79 P.2d 965

52 Ariz. 219

BURSON DONN, by WALTER E. DONN, His Guardian ad Litem, Appellant, v. CARL F. KUNZ, Appellee

Civil No. 3904

Supreme Court of Arizona

June 6, 1938

APPEAL from a judgment of the Superior Court of the County of Maricopa. J. C. Niles, Judge. Judgment affirmed.

Mr. F C. Struckmeyer, Mr. C. H. Young and Mr. James E. Flynn, for Appellant.

Messrs Snell, Strouss & Salmon, for Appellee.

OPINION

LOCKWOOD, J.

This is an action by Burson Donn, a minor, through his guardian ad litem, hereinafter called plaintiff, against Carl F Kunz, hereinafter called defendant. The facts of the case, so far as this appeal is concerned, may be taken to as follows:

On October 8, 1936, while the plaintiff was driving an automobile east on Camelback Road, in Maricopa county, it collided with one driven by Clara E. Kunz, the wife of defendant, at the intersection of Sixteenth Street and Camelback. As a result of said collision plaintiff sustained severe injuries, and Mrs. Kunz died, prior to the commencement of this action. The action was brought against her husband, Carl F. Kunz, individually, and was based on what is known as the "family car" doctrine. The evidence shows that at the time of the accident the defendant and Clara E. Kunz were husband and wife residing together as such in Maricopa county. As issue of the marriage three daughters had been born, and at the time of the accident Mrs. Kunz was taking the children to school. The car, which was the community property of herself and defendant, at the time was being driven by her, with the knowledge, consent and approval of her husband, and was used generally for the purpose of the family. The trial court directed a verdict for the defendant, on the ground that the "family car" doctrine was not applicable to the case, but rather the law governing the community and its responsibilities. From the order directing the verdict, the order denying the motion for new trial, and the judgment, this appeal was taken.

There is but one question of law, and that is, whether the "family car" doctrine is applicable to the facts set forth herein. It is not disputed that the "family car" doctrine is the established law of the state of Arizona. This rule is stated by Justice BAKER, in the case of Benton v. Regeser, 20 Ariz. 273, 179 P. 966, as follows (p. 278):

"The cases cited firmly establish the rule that a father who furnishes an automobile for the pleasure and convenience of the members of his family makes the use of the machine for the above purposes his affair or business, and that any member of the family driving the machine with the father's consent, either express or implied, is the father's agent. We are convinced that the rule is based on sound reason and that it is supported by the great weight of authority, and therefore shall adopt it as the rule in this jurisdiction."

It is the contention of plaintiff that defendant Kunz furnished the car in question for the pleasure and convenience of the members of his family, among them being his wife, Clara E. Kunz, and that by so doing, made the use of the machine by her his affair or business, and that when she was driving it at the time of the accident, she was doing so as defendant's agent.

It is the position of defendant that this rule has no application where the automobile is furnished by the community; that in such case, when the automobile is used for a community purpose, it is the community which is responsible for its use or misuse, and not either of the individuals, husband or wife, who compose the community.

The question is one of first impression in the state of Arizona. Under our community property law, all property acquired by the earnings of either the husband or wife, while they are living together, belongs to neither spouse individually, but to the community, the interest of the husband being no more nor no less than that of the wife. La Tourette v. La Tourette, 15 Ariz. 200, 137 P. 426. Our statute says that during the coverture the husband alone may dispose of the personal property and control its use, but we have held that in so doing, he is acting not for himself but in a representative capacity, as the agent of the community. Section 2172, Revised Code 1928. In the case of La Tourette v. La Tourette, supra, we said (p. 206):

"The law, in giving this power to the husband during coverture to dispose of the personal property, does not do this in recognition of any higher or superior right that he has therein, but because the law considers it expedient and necessary in business transactions affecting the personalty to have an agent of the community with power to act. So it has clothed the husband with this agency, deeming him the best qualified for the purpose, but limiting such agency to the personalty and during the period of coverture. And this agency to dispose of the community personalty may not be exercised by the husband to defraud his wife, for in one way or another she would have a remedy for a disposition by the husband in fraud of her rights, or made with the intent and purpose of defeating her interest."

Therefore, in the present case the automobile in question, which was owned by the community and used by a member of the community in the community business, to wit: in taking the minor children of Mr. and Mrs. Kunz to school, was not furnished by defendant Kunz, but by the community, his only relation to its use being a representative one as the agent of the community. If, therefore, there be any liability for the accident, aside from that of Clara E. Kunz, the liability under the doctrine of respondeat superior must be that of the owner of the car, to wit: The community, and not that of either of the individual members thereof, for an agent is not liable to third persons for the misfeasance of a sub-agent in the service of his principal, unless he is guilty of fraud or gross negligence in the choice of the sub-agent or improperly cooperates in the latter's acts. Hilton v. Oliver, 204 Cal. 535, 269 P. 425, 61 A.L.R. 297; Smith v. Rutledge, 332 Ill. 150, 163 N.E. 544, 61 A.L.R. 273.

We have always held that the community property law of this state was almost identical in principal with that of the state of Washington, and that the decisions therefrom on questions involving the various rights and liability of the community were very persuasive. There are two cases from that state which we think well illustrate the extent of the liability in cases of this nature, those of Bortle v Osborne, 155 Wash. 585, 285 P. 425, 67 A.L.R. 1152, and Hart v. Hogam, 173 Wash. 598, 24 P.2d 99. In the case first mentioned, the automobile in question belonged to the community and was driven by the husband. An accident occurred, as in the present case, in which the driver of the car died as a result of the injury, and another party was seriously injured. The action was brought against the estate of the deceased husband and against the surviving wife. It it the law in the state of Washington, as it is in the state of Arizona, that the husband and wife are not jointly and severally liable for a tort committed by one without the knowledge or consent of the other. It is also the law in that state,...