APPEAL from a judgment of the Superior Court of the County of Yuma. Henry C. Kelly, Judge. Judgment affirmed.
Mr. William H. Westover, for Appellants.
Mr. J. Fred Hoover, for Appellee.
[39 Ariz. 433] ROSS, J.
This is an appeal by John Selaster and Mae Selaster, husband and wife, from a judgment against them and in favor of Raymond Simmons for damages to the latter's person and property, claimed to have been sustained in a collision between the automobiles of plaintiff and defendants through the negligence of Mae Selaster, who was at the time the driver of defendants' automobile. The plaintiff obtained a verdict and judgment for $1,126.61.
[39 Ariz. 434] The first seven assignments question the right of plaintiff to have judgment against John Selaster, the husband. The evidence is undisputed that the automobile driven by Mae Selaster when the accident occurred was community property, and it is likewise undisputed that she was at the time looking for her husband; that she had gone to the garage in Yuma where the car had been left to be washed, got it, and was on her way to get her husband when the two cars came together. Under such circumstances, we think the community, consisting of the husband and wife, was liable for the wife's tort, and that the judgment properly ran against both of them.
The community law of this state, as construed by our decisions, is more like that of the state of Washington than any other of the community property states. Cosper v. Valley Bank, 28 Ariz. 373, 237 P. 175. In La Tourette v. La Tourette, 15 Ariz. 200, Ann. Cas. 1915B 70, 137 P. 426, we said:
"The law makes no distinction between the husband and wife in respect to the right each has in the community property. It gives the husband no higher or better title than it gives the wife. It recognizes a marital community wherein both are equal. Its policy plainly
expressed is to give the wife in this marital community an equal dignity, and make her an equal factor in the matrimonial gains. . . .
"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."
In Milne v. Kane, 64 Wash. 254, Ann. Cas. 1913A 318, 36 L.R.A. (N.S.) 88, 116 P. 659, it was held that the community was liable for the negligent injury of the plaintiff in the operation by the husband of an automobile for the benefit of the community, [39 Ariz. 435] consisting of the husband and wife. In other words, it was held that the community was the wrongdoer. The court there said:
"In this case, if the negligence of the husband's causing the injury may be held to be a tort, it was the tort of the community, because the husband was acting for the community. It is clear, we think, that if the community, consisting of the two defendants, had employed a man to drive the automobile, and the negligence of this employee had caused the injury, the community would be liable. This would follow because the employee would be the agent of the community, and for his negligence in the line of his duty the community would be liable. The fact that Mr. Kane was himself the driver, and was negligent, does not change the liability. He was one of the community, acting in the line of the business for the benefit of the community, and was as much an agent for both as an employee doing that work would have been. If the community joined in the tort, the community was liable. We are satisfied, therefore, that the negligence here, though actually committed by the husband, was the negligence of both himself and wife, because it was committed by him as agent of the community, in the line of his duty, in a business in which the community was engaged."
This rule has been referred to and approved a number of times in that state. Woste v. Rugge,68 Wash. 90, 122 P. 988; McPherson v. Twin Harbor Stevedoring & Tug Co.,139 Wash. 61, 245 P. 747; Meek v. Cavanaugh,147 Wash. 153, 265 P. 178; Bortle v. Osborne,155 Wash. 585, 67 A.L.R. 1152, 285 P. 425; Merritt v. Newmark,155 Wash. 517, 285 P. 442. We cannot see that the rule should be different where the tort is committed by the wife instead of the husband. She was using the car at the time for the benefit of the community, and was its agent. If it should be conceded that under section 2175, Revised Code of 1928, the community is liable only for debts incurred by the husband, the fact still [39 Ariz. 436] remains that here the liability arose through the negligence of the community's agent, for which the community is responsible. If the husband had turned the automobile over to his chauffeur to do an errand for the benefit of the ...