Jones v. Kinney

• Decision Date: 23 July 1953
• Docket Number: No. 7144.,7144.
• Citation: 113 F. Supp. 923
• Parties: JONES v. KINNEY et al. (JONES, third-party defendant).
• Court: U.S. District Court — Western District of Missouri

113 F. Supp. 923

JONES v. KINNEY et al. (JONES, third-party defendant).

No. 7144.

United States District Court W. D. Missouri, W. D.

July 23, 1953.

John L. Sheridan, Pew, Taylor, Welch & Sheridan, Kansas City, Mo., for plaintiff.

Rogers, Field & Gentry, Kansas City, Mo., for defendant Kinney.

Tucker, Murphy, Wilson & Siddens, Kansas City, Mo., for defendant Avco.

Langworthy, Matz & Linde, Kansas City, Mo., for third-party defendant.

RIDGE, District Judge.

This is a negligence action wherein plaintiff seeks recovery for damages allegedly sustained as the result of a collision between an automobile driven by her husband, the third-party defendant herein, and one operated by defendant John F. Kinney. Plaintiff, a resident of the State of Michigan, as is her husband, was riding in her husband's vehicle at the time of the collision in question. She joins her husband's employer, the Avco Manufacturing Corporation, as a party defendant, on the ground of respondeat superior. Avco, a Delaware corporation, by way of a third-party complaint, has brought in plaintiff's husband to indemnify it for whatever damages might be assessed against it.

At this time, Avco, the third-party plaintiff, and plaintiff's husband, the third-party defendant, separately move for summary judgment as a matter of law.

The accident in question occurred in Kansas. The rights and liabilities of all parties upon the primary claim is, therefore, governed by the laws of that State. The third-party defendant contends that were he held accountable to Avco violence would be done, by indirection, to the principle of law existent in Kansas, that recovery in tort by one spouse against another will not be permitted. By the same token, the third-party plaintiff argues that its instant liability, if any, must be derived from the actionable wrongs of its agent, and since said agent is plaintiff's husband, and thus unaccountable to plaintiff directly, it, too, is cloaked with impunity under the law of the State of Kansas. However, if this Court should hold that Avco is a proper party defendant, then Avco insists that plaintiff's spouse is liable over to it, on the ground that an agent owes an independent duty to his employer to avoid injuring others in the course of his employment.

There can be no question but that the law of Kansas is that one spouse cannot sue the other in tort. Sink v. Sink, 1952, 172 Kan. 217, 239 P.2d 933. The reason given by the Kansas courts for this rule is that to permit otherwise would tend to disrupt the marital relationship. In the instant case, however, we are not faced directly with this question. We are not here called upon to ascertain the legal accountability of the husband to his wife, but rather, we are to determine the liability of an employer for an employee's tort on the latter's wife. If, as a matter of law, and in the absence of genuine issues of fact, there can be no liability, then summary judgment should be entered in favor of both the third-party plaintiff and the third-party defendant, plaintiff's husband.

The conflict of decisions on this subject, and the issues involved, are succinctly and lucidly set out in 27 Am.Jur., Husband and Wife, Sec. 598. We believe it would be worthwhile to quote at length:

"In jurisdictions where the rule prevails that the spouses are not liable for torts on each other, there is a difference of opinion on the question of the liability of a principal or master for a tort of his agent, employee, or servant, which injures the latter's spouse. According to one line of authorities, under the rule which denies liability between husband and wife for the torts of the other, an employer is not liable to the spouse of his employee for injuries sustained by such spouse as a result of a tortious act of the employee, even though committed by the employee while acting in the course of his agency or employment; at least this is the rule where the employer's liability, if any there be, is regarded as derivative and secondary and where he would have a recovery over against the agent or servant. On the other hand, such liability of the principal or master has been affirmed, at least where the liability is regarded as distinct and independent and the maxim that `he who acts through another acts himself' is strictly invoked, although the principal has a remedy over against the agent, for such remedy of the principal against the agent is sustainable on the violation by the agent of the duty owing his principal not to commit torts on others in the course of his agency."

Since the accident giving rise to plaintiff's action occurred in Kansas, we would, as we have already noted, normally apply Kansas law in resolving the instant questions. We have, however, carefully examined the Kansas decisions and have regretfully found no helpful authority on the subject, not even dicta. Except for the possible, but speculative influence of the Sink case, supra, we are left completely adrift. We must, therefore, direct our attention to the decisions of this and other States that we might find a solution in conformity with the greatest and most considered weight of authority which we believe the courts of the State of Kansas would follow under like circumstances.

As defendant Avco points out, were its liability derivative or secondary, being dependent on the liability of its agent, then it would follow that Avco is an improper party defendant to this action. Since plaintiff's husband, under Kansas law, cannot be sued by her in tort, then, under the view urged by Avco, the husband's employer likewise could not be sued. But however logical this approach may appear at first glance, it nevertheless places reliance on a basic premise we must decline to accept. We are convinced that the better considered and prevailing view is that an employer's liability for the torts of his agent is not derivative or secondary as the third-pa...