Keefe v. Jacobo, Civil 3671

• Decision Date: 10 February 1936
• Docket Number: Civil 3671
• Citation: 54 P.2d 270,47 Ariz. 162
• Parties: FRANK KEEFE, Appellant, v. MARY JACOBO, on Behalf of the Estate of Jose Jacobo, Deceased, Appellee
• Court: Arizona Supreme Court

54 P.2d 270

47 Ariz. 162

FRANK KEEFE, Appellant, v. MARY JACOBO, on Behalf of the Estate of Jose Jacobo, Deceased, Appellee

Civil No. 3671

Supreme Court of Arizona

February 10, 1936

APPEAL from a judgment of the Superior Court of the County of Pima. Fred W. Fickett, Judge. Judgment affirmed.

Messrs Cusick & Lyons, for Appellant.

Mr Alfred Ronstadt and Mr. Tom Chambers, for Appellee.

OPINION

ROSS, J.

Mary Jacobo, as the surviving wife, brought this action against Frank Keefe for damages to her deceased husband's estate on account of injuries wrongfully inflicted upon him resulting in his death, and recovered a verdict and judgment for $5,000. The defendant brings the matter here on appeal.

The answer to the complaint was a general denial. It was also alleged that the deceased was under the influence of intoxicating liquor and, in attempting to evade arrest, fell to the street striking his head and sustaining injuries from which he died.

The action is for "death by wrongful act" and is for damages to the estate of the deceased.It is a creature of the stature commonly referred to as the Lord Campbell's Act. Sections 944, 945, 946, Rev. Code 1928. Under such statute when there has been appointed no personal representative of the deceased, and he has "left no estate or assets" in this state other than the cause of action for his death, the action may be brought by the surviving husband or wife, in his or her own name, on behalf of the estate. The plaintiff alleged the deceased left no estate or assets, and that no personal representative had been appointed. The defendant, at the close of plaintiff's case and at the close of the whole case, moved the court for a directed verdict on the ground that the proof showed the deceased had left an estate or assets.

It was undisputed that Jose Jacobo died seized with title to one second-hand Chevrolet automobile, 1925 model, for which some time before his death he had paid $15. It was shown by a used car dealer that such automobile had a trade-in value on a new car of $25; that as junk, without rubber, it was worth $2.50 or $3.00. This automobile, since it was acquired during coverture, was the property of the community, and the decedent's moiety was one-half of its value. The question is, Did the deceased leave "an estate or assets," in the sense in which these words are used in the statute?

In Chenoweth v. McDowell, 26 Ariz. 420, 226 P. 535, 536, we held that it was essential to the cause of action of the survivor under our Lord Campbell's Act, not only to allege, but to prove, that the deceased "left no estate or assets." We did not, however, define, or undertake to define, the meaning of the phrase. It appeared in that case that the deceased left "a homestead, two horses, a wagon, a half interest in a well-drilling outfit, a cow and a calf, two mules." We ruled that this evidence showed that decedent had left an estate or assets in Arizona. If the showing had been that the deceased in that case had left a half interest in a used automobile, with a trade-in value of only $25, the holding doubtless would have been different. What Jose Jacobo left was of such little value as to amount to nothing. It surely was intended that, before the surviving husband or wife should be compelled to take out letters of administration, the estate or assets left by the decedent should consist of a substantial amount of property; something available, after paying the expenses of the last sickness and funeral expenses, for liquidating debts of the estate, or requiring distribution among the heirs. It seems to us the maxim de minimus non curat lex should be applied to the situation.

The court's refusal to direct a verdict on the ground stated was correct.

The other assignments, as stated by the appellant, are:

"2. That the court erred in charging the jury.

"3. That the court erred in rejecting evidence offered by defendant at the trial of said action and in admitting evidence over the objection of the defendant.

"4. That the verdict and judgment is not justified by the evidence, is contrary thereto, and contrary to law, and that the weight of the evidence is not in accordance with said judgment and...