GUSTAFSON et al.
Rehearing Denied Dec. 15, 1953.
[76 Ariz. 281] Evans, Hull, Kitchel & Jenckes, by Jos. S. Jenckes, Jr., Phoenix, for appellants.
Frennemore, Craig, Allen & Bledsoe, by Calvin H. Udall, Phoenix, for appellee.
STANFORD, Chief Justice.
This is an appeal from a judgment entered after the court allowed a motion to dismiss plaintiff's complaint for failure to state a claim upon which relief could be granted. The Gustafsons, plaintiffs below, are appellants; Lillie May Rajkovich as administratrix of her deceased husband's estate and as herself, is the appellee.
In the complaint it is alleged that each of the appellants suffered severe personal injuries, as well as damage to their car, as a result of a collision with appellee's automobile; that appellee's car was then being driven in a reckless, careless and negligent manner by Larry S. Rajkovich, the fifteen-year old son of Philip and Lillie May Rajkovich, and that this negligence was the proximate cause of the appellants' injuries; that the father was riding in the Rajkovich car and was killed in the collision; that the young son who was driving appellee's car had no license to drive; that the fatal trip was being taken in the interest of the Rajkovich community; and that appellants presented a creditor's claim which was rejected by the administratrix of decedent's estate before this suit was brought.
The sole assignment of error is as follows:
'The lower court erred in granting defendant's Motion to Dismiss plaintiffs' complaint and in entering judgment for defendants that plaintiffs [76 Ariz. 282] take nothing by their Complaint for the reasons:
'(a) The Complaint states causes of action for personal injuries proximately caused by the negligence of Appellee, Lillie May Rajkovich, and the decedent, Philip Rajkovich, and by reason of their liability under the doctrine of respondeat superior for the negligence of their agent.
'(b) A cause of action for personal injuries does not, in the State of Arizona, abate upon the death of the wrongdoer.
'(c) Community property, after the death of member of the community, remains charged with liability for personal injuries.
'(d) A cause of action for personal injuries, based upon the doctrine of respondeat superior, does not abate upon the death of the principal.
'(e) Under the laws of Arizona, the parents are jointly and severally liable for the negligent operation, with their consent, of a motor vehicle by their child under the age of eighteen years.
'(f) A cause of action for damages to personal property survives the death of the wrongdoer.'
The primary questions involved on this appeal are, (1) whether a cause of action for personal injuries survives the death of the tort-feasor, (2) whether the liability of the marital community or of the community property for personal injuries caused by the negligence of a member of the marital community abates with the death of such member, and (3) whether the surviving wife, individually, could be held liable for personal injuries proximately caused by the negligence of her minor son in the driving of an automobile owned by the community and then being used by her husband in the community interest. These questions have all heretofore been answered by this court in the negative.
The first question was answered by our decision in the case of McClure v. Johnson, 50 Ariz. 76, 69 P.2d 573, and the second and third questions were answered by the opinion in Donn v. Kunz, 52 Ariz. 219, 79 P.2d 965. However, we are now asked to depart from the rule of stare decisis, reexamine the matter and overrule these previous decisions.
Appellants' first proposition of law in support of their assignment of error is that in Arizona liability for personal injuries survives the death of the wrongdoer and that this is so notwithstanding our decision in McClure v. Johnson, supra. They base their contention on the fact that Arizona statute 1-106 A.C.A.1939 reads:
'The common law, so far only as it is consistent with, and adapted to the natural and physical conditions of this state, and the necessities of the people thereof, and not repugnant to, or inconsistent with, the Constitution of the United States, or the constitution or [76 Ariz. 283] laws of this state, or established customs of the people of this state, is hereby adopted and shall be the rule of decision in all courts of this state.'
Appellants argue that the rule as expressed in McClure v. Johnson is inconsistent with our constitution and laws and is not adapted to the natural and physical conditions of this state and the necessities of the people, and therefore has never become our law. They further argue that the rule that actions for personal injuries abate at the death of the tort-feasor is an outgrowth of the old English Law when criminal law based partially upon recrimination was intermingled with torts law; and, therefore, personal liability had to die with the defendant. Appellants contend that since torts and crimes are now separate and distinct branches of the law, and the philosophy of the tort law is compensation of the injured rather than recrimination, the reason for the rule of abatement of actions no longer exists, and the law is that actions for personal injuries can be brought after the death of the wrongdoer.
The appellee answers the above argument by saying that McClure v. Johnson is the law and that the legislature must have thought so; otherwise, the legislature would not have found it necessary to enact exceptions to it (see sections 21-506, 21-534, and 38-1103, A.C.A.1939).
The court agrees with the appellee that the law of Arizona is expressed in its former decision of McClure v. Johnson, supra. The court there said [50 Ariz. 76, 69 P.2d 576]:
'The rule seems a harsh one, for we cannot see why, as a matter of justice, the common-law disability should be removed if the action is filed before the tort-feasor dies, but remains if the death occurs too quickly for the injured party to commence the action. The remedy, however, is with the Legislature and not with the courts.'
We take from the case of Westminster School District of Orange County v. Mendez, 9 Cir., 161 F.2d 774, 780, the following:
'* * * Of course, judges as well as all others must keep abreast of the times but judges must ever be on their guard lest they rationalize outright legislation under the too free use of the power to interpret. We are not tempted by the siren who calls to us that the sometimes slow and tedious ways of democratic legislation is no longer respected in a progressive society. * * *'
The appellants have submitted the views of only two states of the Union, Florida and Nebraska, to support their view; however, the majority of states have announced the view herein set forth.
Appellants' second proposition of law is that the liability of the community property for personal injuries caused by a negligent act on behalf of the marital community does not abate with the death of [76 Ariz. 284] a member of the community. This court held in Donn v. Kunz, supra, in which case the wife was driving the car on community business and negligently injured the plaintiff, that an action would not lie after the death of the wife, because the community was liable for the community torts, and the community died when one of its
members died, and actions for personal injuries did not survive the death of the tort-feasor.
We believe that as long as the rule that actions for personal injuries die with the tort-feasor is the law of Arizona, the decision in Donn v. Kunz, supra, is sound.
In their third proposition of law, the appellants state that even if the doctrine of no survival of actions for personal injuries is the law of Arizona it has no application in a case where the wrongdoer is the agent and the decedent is the principal. We cannot see why this distinction in the law should be made and why the doctrine should not apply just as much as where the person who died was the tort-feasor himself. The law of agency is based on the principle of qui facit per alium, facit per se, i. e., one acting by another is acting for himself, so whether the decedent actually committed the tort or had his 'other self' commit it makes no difference; in fact, the plaintiff in that case would be left in a better position than he ordinarily is, because he can always bring action against the agent himself.
Appellants' fourth argument is that a married woman is liable for her torts and that this liability is not affected by the death of the husband and that, therefore, Lillie May Rajkovich is liable. In the abstract the above is true. But it does not apply in this case, because as the pleadings state, the decedent and Larry Rajkovich were driving on community business and not for the sole benefit of the appellee, Lillie May Rajkovich; therefore, it was not the tort of the appellee but that of the community. It follows then that the Donn v. Kunz case, supra, is applicable here, and we say that the community was liable but that it was dissolved at the death of Philip Rajkovich and, therefore, absolved of liability.
Appellants' fifth proposition of law is that parents who permit their child under the age of eighteen to drive are jointly and severally liable for injuries resulting from the child's negligent operation of the car. They base their view on section 66-269a, A.C.A.1939, as amended, which imposes such liability on ...