On Petition to Transfer
Arterburn, J.I concur in the denial of the petition to transfer, but not for the reason given in the Appellate Court Opinion. (See 153 N. E. 2d 140.)
The fact that upon the death of an agent the *71liability in a negligence case is limited or extinguished against his estate, should not accrue to the benefit of the principal and release the principal also from liability.
There is no analogy in the instant case and one in which a jury or court finds the agent not guilty of negligence for which the principal at the same time is held liable. The negligence still exists, even though the agent may die or his liability be limited by statute in the case before us.
The contrary reasoning would preclude a recovery from a principal for negligent operation of a plane or other vehicle in which the pilot or operator was killed at the time of the crash or accident. Such a result is out of harmony with the times in which we live. It was not intended a principal should get the benefit of a special privilege allowed a deceased agent’s estate by limiting the amount of recovery therefrom in case of death.
It has been held in this state that an unincorporated association of which a husband is a member may be sued by a wife for personal injuries, and although the husband could plead coverture, the association may not claim such a defense against her because her husband is a defendant. Hary v. Arney (1957), 128 Ind. App. 174, 145 N. E. 2d 575, Trans. Den. Jan. 16, 1958; The Aetna Insurance Company of Hartford, Connecticut v. Baker et al. (1880), 71 Ind. 102; Schubert v. August Schubert Wagon Co. (1928), 249 N. Y. 253, 164 N. E. 2d 42.
It likewise follows that a privilege personal to an agent or his estate may not be claimed or taken advantage of by a principal to avoid liability. See 1 Restatement of the Law, Agency §217, comment b; 2 Restatement of the Law, Agency §489:. In view of the *72foregoing, I cannot agree with the reasoning in the Appellate Court opinion.
Although it does not appear in the Appellate Court opinion, the record and briefs show the trial court erred in refusing to give a tendered instruction, distinguishing agency from bailment as it pertained to the car involved in the accident. In view of the failure to give such an instruction, I concur in the denial of the petition to transfer.
Landis, J., concurs.