McWhirter

This is an action for damages for personal injuries and damage to personal property arising out of a collision between an automobile owned and driven by plaintiff and one owned by appellant, George P. Fuller, but driven by his wife, the defendant May A. L. Fuller.

Under the terms of section 171a of the Civil Code a husband is not liable for the torts of his wife “except in cases where he would be jointly liable with her if the marriage did not exist.” It is not here claimed that the appellant kept this ear for the use of his wife, and that at the time of the accident it was being used for the purpose for which it was purchased and kept, in which event, in every just sense and according to the weight of authority, she would be regarded as his agent, on the theory that it is as much the duty of the husband to furnish to his wife, within his means, recreation and pleasure, as it is to furnish her with food and clothing. (Missel v. Hayes, 86 N. J. L. 348, [ 91 Atl. 322 ]; Birch v. Abercrombie, 74 Wash. 486 , [50 L. R. A. (N. S.) 59, 133 Pac. 1020 ]; Kayser v. Van Nest, 125 Minn. 277 , [51 L. R. A. (N. S.) 970, 146 N. W. 1091 ] ; Marshall v. Taylor, 168 Mo. App. 240 , [ 153 S. W. 527…