Hans I. MORTENSEN, Administrator of the Estate of Hans Mortensen, deceased, and Hans I. Mortensen, Administrator of the Estate of Winnie Mortensen, deceased, Appellant,
James Z. KNIGHT, Appellee.
[81 Ariz. 326] H. Vearle Payne, Lordsburg, N. M., Chester J. Peterson, Phoenix, for appellant.
Fennemore, Craig, Allen & Bledsoe and Calvin H. Udall, Phoenix, for appellee.
This is an action to recover damages for the wrongful deaths of Hans Mortensen and Winnie Mortensen, deceased. From an order granting a motion for summary judgment in favor of appellee and the judgment [81 Ariz. 327] thereon this appeal is taken. The complaint alleges in substance that Trena Frances Knight, while driving an automobile furnished and maintained by her husband, James Z. Knight, for the general use, pleasure and convenience of his family, negligently caused it to overturn inflicting injuries upon herself and upon Hans Mortensen and Winnie Mortensen, from which injuries all three subsequently died. The motion for summary judgment filed by appellee, defendant below, was accompanied by an affidavit setting forth that the automobile being driven by Trena Frances Knight at the time of the accident was the community property of James Z. Knight and Trena Frances Knight. The facts as set forth in the affidavit were not controverted and are presumed to be true. Rules of Civil Procedure, Rule 56(e). In accord with our prior holding in Donn v. Kunz, 52 Ariz. 219, 79 P.2d 965, summary judgment was granted by the court below as a matter of course.
In Donn v. Kunz this court held that an action for personal injuries cannot be maintained against a surviving husband where the wife, the tort-feasor, died prior to the commencement of the action if the automobile then being driven by the wife was community property. Since that decision, if adhered to, controls the disposition of this case, an examination of the several predicates upon which it rests is necessary. This in turn requires a somewhat detailed consideration of certain fundamentals of the community system.
This court stated in Cosper v. Valley Bank, 28 Ariz. 373, 237 P. 175, after an examination of the statutes of the State of Washington as they then existed that the community property system of that state was very similar to that of Arizona. As a consequence the decisions from that State have been accorded great weight and have been relied on by this court in deciding the issues in many cases. For example, in Donn v. Kunz it was said:
'* * * We have always held that the community property law of this state was almost identical in principle 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. * * *' 52 Ariz. 223, 79 P.2d 967.
Often the opinions of the Supreme Court of Washington have been cited here as persuasive in the disposition of questions involving various rights and liabilities of the community (term of convenience) without full consideration of the reasons which influenced their adoption there. For example compare Shaw v. Greer, 67 Ariz. 223, 194 P.2d 430, with Ruth v. Rhodes, 66 Ariz. 129, 185 P.2d 304.
In considering the community property system it should be recognized that certain [81 Ariz. 328] salient characteristics unknown to the common law are shared by all states in which it governs:
'* * * (1) the transmissibility of the wife's interests to her heirs, so that if the wife dies first, her heirs take the share to which she would have been entitled if she had survived; and (2) during the existence of the marital relationship the spouses are the joint owners, or partners, with respect to gains and losses.' 1 Principles of Community Property, De Funiak 3.
Since both Arizona and Washington claim the community system it would be strange indeed if it could not also be claimed that they were 'almost identical in principle'.
The concept of joint ownership of property acquired during coverture was originally introduced into Arizona by its earliest settlors from Spain and Mexico. It was adopted in Arizona by the Second Territorial Assembly. Acts of Arizona, 1865, Chapter XXXI.  California by its constitutional convention of 1849 adopted the following Article:
'All property, both real and personal, of the wife, owned or claimed by (her before) marriage, and that acquired afterwards by gift, devise, or descent, shall be her separate property; and laws shall be passed more clearly defining the rights of the wife, in relation as well to her separate property, as to that held in common with her husband. Laws shall also be passed providing for the registration of the wife's separate property.' Article XI, Section 14, Constitution of California, West's Ann. Const.
This constitutional provision was implemented by legislative act, Laws of California 1850, Chapter 103. All of the first 23 sections of Chapter XXXI of the Acts of Territorial Assembly of 1865 are identical to Chapter 103 of the Laws of California, 1850, as amended through 1857, with the exception of very slight change in language bearing no significant relation to meaning. Sections 1 and 2 of Chapter XXXI have been continued as the law of this state through the various revisions almost verbatim since 1864:
'Section 1. All property, both real and personal, of the wife, owned by her before marriage, and that acquired afterwards by gift, bequest, devise, or descent, shall be her separate property, and all property, both real and personal owned by the husband before marriage, and that acquired by him afterwards, by gift, bequest, devise, or descent, shall be his separate property.
[81 Ariz. 329] 'Sec. 2. All property acquired after the marriage by either husband or wife, except such as may be acquired by gift, bequest, devise, or descent, shall be common property.' (Italics ours).
It should, however, be recognized that while the source of the Arizona community property system is California, a comparison with the Constitution of the State of Texas, 1845, Vernon's Ann.St. Article VII, Section 19, shows that Article XI, Section 14, Constitution of California, supra, is identical to that of Texas.  It is said to have been adopted verbatim from the State of Texas. 3 Cal.Law Review 369, 373. It should also be pointed out that many of the sections of the California Act of 1850 are identical or nearly identical in language to comparable sections of the statutes of the State of Texas. 2 Laws of Texas 177, 180 (Gammel 1898). The California Act was 'plainly modeled upon the experience
of Texas', 3 Cal.Law Review 377. For example Section 2 of both acts quoted supra is substantially the same as Section 3 of the Acts of the Second Legislature of the State of Texas approved March 13, 1848:
'Sec. 3. Be it further enacted, That all property acquired by either husband or wife, during the marriage, except that which is acquired in the manner specified in the second section of this act, (by gift, devise or descent), shall be deemed the common property of the husband and wife, and during the coverture may be disposed of by the husband only; * * *.' 3 Laws of Texas 77 (Gammel 1898).
From the foregoing we are compelled to conclude that the decisions of the State of Washington, while informative, are not necessarily more persuasive than either of those of the states of California or Texas.
The State of Washington adopted its community property act on December 2, 1869,  following Arizona by nearly four years. The idea that Arizona is most nearly identical to the State of Washington is derived from comparison of the respective statutes of the two states, Cosper v. Valley Bank, supra. We have further examined and compared the statutes of Arizona with the Western states which early took their community systems from California, being Idaho, Nevada, New Mexico, and Washington, and have further concluded that the statutes of each state in part have similar language to Arizona, but that a sweeping generalization as to which is more persuasive cannot at the present time be made in the light of the numerous revisions, legislative[81 Ariz. 330] refinements, and judicial interpretation.
As has been pointed out, one of the principal and distinguishing features of the community system is that property acquired during coverture by the labor and industry by either husband or wife while living together is held as their joint property.  All three of the states of Arizona, California and Texas initially described the property acquired during coverture as the 'common property' of husband and wife. This description as common property is consistent with the Spanish Civil Law of the ownership of property ...