Beakley v. City of Bremerton

• Decision Date: 18 October 1940
• Docket Number: 28007.
• Citation: 105 P.2d 40,5 Wn.2d 670
• Parties: BEAKLEY v. CITY OF BREMERTON et al.
• Court: Washington Supreme Court

105 P.2d 40

5 Wn.2d 670

BEAKLEY v. CITY OF BREMERTON et al.

No. 28007.

Supreme Court of Washington, En Banc.

October 18, 1940

Action by W. A. Beakley against the City of Bremerton, and others to recover balance allegedly due for stenographic services. The defendants filed a cross-complaint in which they named Nelva G. Beakley as an additional defendant. From the judgment, the plaintiff and Nelva G. Beakley appeal.

Affirmed in part, and reversed in part.

Appeal from Superior Court, Kitsap County; James B. Kinne, judge.

R. W Miller, of Bremerton, for appellants.

James W. Bryan, Jr., of Bremerton, for respondent.

SIMPSON Justice.

This case involves the personal retention by a city attorney of funds allowed by the city for stenographic services, and also involves his right to employ his wife to do the stenographic work and to be paid by the city.

The complaint alleges that plaintiff, as city attorney for the city of Bremerton, was authorized by the city to employ clerical and stenographic help, and to pay for that service the amount of fifty dollars per month; that he employed Nelva G. Beakley as his clerk and stenographer at a monthly salary of fifty dollars; that Nelva G. Beakley started to work September 1, 1937, in the capacity of clerk and stenographer, and continued to work until May 1, 1938; and that the city paid for her services to and including January 15, 1938, but refused to pay the balance due in the sum of $175. It was further alleged that Nelva G. Beakley had assigned the claim to plaintiff.

The defendants filed an answer and a cross-complaint in which they named Nelva G. Beakley as an additional defendant. The answer, in effect, denied the allegations of the complaint. As an affirmative defense and counterclaim, defendants allege that Nelva G. Beakley was the wife of plaintiff; that during the years 1937 and 1938 the city of Bremerton set aside the sum of $50 per month for the payment of wages for a stenographer for the city attorney; that between the 1st day of September, 1937, and the 15th day of December 1937, plaintiff collected from the city the sum of $50 per month for the stenographic services; and that Nelva G. Beakley collected $25 during January for the same services. It was further alleged that between the first day of January, 1937, and the 15th day of September, 1937, plaintiff employed Claire Duncan as stenographer in his office, to whom he paid the total sum of $265; that during the same period of time plaintiff collected the sum of $425 from the city for her services.

Defendants demanded recovery from plaintiff and his wife in the sum of $510, claiming that that amount was made up from the sums paid Nelva G. Beakley and the sum retained by plaintiff from the amount allowed Claire Duncan.

The reply put in issue the allegations of the answer and cross-complaint.

The case was tried to the court, sitting without a jury. The court made findings of fact and conclusions of law, and entered judgment against W. A. Beakley and Nelva G. Beakley as individuals, and against the marital community composed of W. A. and Nelva G. Beakley, in the sum of $350. Motion for a new trial was made and denied.

The assignment of error are (a) the dismissal of W. A. Beakley's claim against the city in the sum of $175; (b) the granting of judgment against the appellants and their community in the sum of $350; (c) the denial of appellants' motion for a new trial.

The facts are as follows: Appellants are now, and have been for several years, husband and wife. At the beginning of the year 1936, W. A. Beakley was appointed city attorney for the city of Bremerton at a salary of $125 per month. During the years of 1937 [5 Wn.2d 673] and 1938, the city provided the sum of $50 per month to pay the salary of a stenographer for the city attorney. Claire Duncan was employed by appellant W. A. Beakley as his stenographer, and he continued her in that position until September 15 or 18, 1937. During that time Beakley collected from the city his salary and the sum of $450 for stenographic allowance. He paid Miss Duncan the sum of $250 and retained the balance of $200. During the month of September, 1937, Beakley discharged Miss Duncan and employed his wife as stenographer. From that time until December 15, 1937, appellant W. A Beakley collected the sum of $150 from the city for stenographic allowance, and paid it to his wife. Thereafter Mrs. Beakley filed her claim with the city for a balance of $175 in salary as stenographer for the city attorney. Her claim was allowed to January 15, 1938, but subsequent claims were disallowed.

The first question raised on appeal by appellants deals with the denial of the recovery of the salary alleged to be due to appellant Mrs. Beakley, along with the granting of a recovery of $150 to responent, representing amounts collected by appellant W. A. Beakley from the city for stenographic services rendered by his wife.

Rem.Rev.Stat. §9106, provides: 'No officer or employee elected or appointed in any such city shall be interested, directly or indirectly, in any contract or job for work or materials, or claims or demands of any kind or nature whatsoever, or the profits thereof, or services to be furnished or performed for the city; and no officer or employee shall be interested directly or indirectly, in any contract or job for work or materials, or the profits thereof, or service to be furnished or performed for any person, * * *.'

Appellants contend that the mere relationship of husband and wife will not create that type of interest which is contemplated by such a statute, citing us to Thompson v. School Dist. No. 1, 252 Mich. 629, 233 N.W. 439, 74 A.L.R. 790, as a case in which such a relationship existed and in which no illegality was found.

We wish to point out, however, the fact that the holding of the court in that case was limited to a state in which a married woman's earnings are her own property. There lies the distinction between that case and the case at bar. Rem.Rev.Stat. §§ 6890, 6891, and 6892, provide that property acquired after marriage by either husband or wife, or both other than by gift, devise, or inheritance, or as rents or profits from property separately owned Before marriage, shall be community property. Rem.Rev.Stat. § 6896, qualifies the sections cited above by providing that the earnings of the wife are her separate property, provided that she is living separate from her husband at the time the money is earned. In the instant case it was admitted that the spouses were living together at the time the money was collected for the wife's services. This court has repeatedly held that property acquired by either of the spouses during coverture is presumptively community property, and that the burden is upon the party who contends that it is separate property to prove otherwise. Abbott v. Wetherby, 6 Wash. 507, 33 P. 1070, 36 Am.St.Rep. 176; Ballard v. Slyfield, 47 Wash. 174, 91 P. 642; Plath v. Mullins, 87 Wash. 403, 151 P. 811; In re Brown's Estate, 124 Wash. 273, 214 P. 10; Jones v. Duke, 151 Wash. 108, 275 P. 72. The only evidence offered by appellants to support their contention that the money acquired for the wife's services was her separate property was testimony of W. A. Beakley to the effect that Mrs. Beakley placed the money paid to her in a bank account in her own...