Benson v. Bush, 362--41181--I
| Decision Date | 14 December 1970 |
| Docket Number | No. 362--41181--I,362--41181--I |
| Parties | Lloyd BENSON, Appellant, v. Yeager BUSH and Jane Doe Bush, his wife, and the marital community composed thereof, Respondents. |
| Court | Washington Court of Appeals |
MacDonald, Hoague & Bayless, Frederick L. Noland, Seattle, for appellant.
Abbey & MacFarland, Vincent H. D. Abbey, James W. Davenport, Seattle, for respondents.
Appellant, Lloyd Benson, was granted recovery by the superior court sitting without a jury for personal injuries caused by the intentional tort of respondent Yeager Bush. He appeals from that part of the judgment which dismisses the marital community of Yeager Bush and wife from the case.
Respondents introduced no testimony and the facts are not in conflict. The parties, next-door neighbors, each owned a dog. The incident in question commenced when appellant's dog went onto respondents' porch, attacking respondents' dog. Appellant came onto the porch to separate the animals by pulling his dog away. At about the same time, respondent husband came onto the porch from within his house. He reached back into the house for a can of chemical spray which he discharged upon appellant's dog. This ended the dog fight; but when appellant turned to leave, still holding onto his dog, respondent husband grabbed him, pulled him around, and sprayed him in the face, causing serious injury. Sometime during the melee, respondent husband said, 'I would like to kill you and your dog.'
If the tortious act of the husband is committed in the management of the community property or for the benefit of the marital community, the community is responsible. Bergman v. State, 187 Wash. 622, 60 P.2d 699 (1936); Newbury v. Remington, 184 Wash. 665, 52 P.2d 312 (1935); DePhillips v. Neslin, 139 Wash. 51, 245 P. 749 (1926). By statute, the husband is vested with the management of the community property. RCW 26.16.030. In this case, no one suggests that the respondent community received a benefit from the injury sustained by appellant. The issue is whether the discharge of the chemical into appellant's face was in the course of or in connection with the management of the community property.
In his capacity as manager, a husband must, of course, exercise judgment when dealing with the property and affairs of the community. The community is bound by his actions and made subject to liability therefor whether the decisions he makes, the judgment he exercises, and the actions he takes are good, bad, or even criminal. LaFramboise v. Schmidt, 42 Wash.2d 198, 254 P.2d 485 (1953); Newbury v. Remington, Supra; Schramm v. Steele, 97 Wash. 309, 166 P. 634 (1917).
A situation somewhat similar to the one at hand arose in McHenry v. Short, 29 Wash.2d 263, 186 P.2d 900 (1947), an action for wrongful death. Decedent was upon the property by some color of right when the defendant husband ordered him out. The two had quarreled before, and out of all proportion to the exigencies of the situation, the husband administered a beating to the decedent, from which decedent died. The court said 29 Wash.2d at 274, 186 P.2d at 906:
It may be true that the actual assault was the result of Short's charge that McHenry had been spreading lies about him, and McHenry's response that everything he had said concerning Short was the truth. However, the altercation was one...
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deElche v. Jacobsen, 46715-3
...interpreted. 1 Torts arising out of the management of community property may lead to community liability. See, e. g., Benson v. Bush, 3 Wash.App. 777, 477 P.2d 929 (1970). Purely personal recreation has been held to be a benefit to the community. See, e. g., Moffitt v. Krueger, 11 Wash.2d 6......
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Clayton v. Wilson
...liability for fight that arose in parking lot following a trial concerning management of community property); Benson v. Bush, 3 Wash.App. 777, 477 P.2d 929 (1970) (assault committed during dispute involving community dog deemed community ¶ 17 In the end LaFramboise presents the closest fact......
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McKinney v. Ostrovsky, No. 53549-8-I (WA 3/7/2005)
...of community-owned business, the marital community was liable for deadly beating of tenant during eviction); Benson v. Bush, 3 Wn. App. 777, 778-80, 477 P.2d 929 (1970) (after husband and neighbor broke up a fight between their respective community-owned dogs, husband became annoyed at neig......
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Keene v. Edie
...The ruling turned on the fact that the defendant had stepped out of the car before striking the plaintiff. Yet, in Benson v. Bush, 3 Wash.App. 777, 477 P.2d 929 (1970), review denied, 78 Wash.2d 997 (1971), the community was found to have liability when the defendant, after using a chemical......
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Chapter §11.03 Property Rights After Separation
...a tort is committed in the course of doing something for the benefit of the community or managing community. See, e.g., Benson v. Bush, 3 Wn. App. 777, 477 P.2d 929 (1970). In deElche v. Jacobsen, 95 Wn.2d 237, 622 P.2d 835 (1980), the court examined the question of community tort liability......
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Chapter §41.04 Postnuptial or Post-Domestic-Partnership-Registration Obligations for Contractual and other Nontort Obligations
...in a community purpose, then the characterization of the conduct, if continued, will establish community liability. E.g., Benson v. Bush, 3 Wn. App. 777, 477 P.2d 929 (1970), review denied, 78 Wn.2d 997 (1971) (altercation arose out of a dispute over community dog). Recreational activities ......
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Table of Cases
...25.03[1][a] Benoy v. Simons, 66 Wn. App. 56, 831 P.2d 167, review denied, 120 Wn.2d 1014 (1992) . 75.06[2][f][i][B], [g] Benson v. Bush, 3 Wn. App. 777, 477 P.2d 929 (1970). . . . . . . . . . . . . . .11.03[6][b]; 41.04 Berg v. Berg, 72 Wn.2d 532, 434 P.2d 1 (1967) . . 27.05 Berg v. Hudesma......
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Table of Cases
...v.Belmondo, 3 Wn.App. 958, 480 P.2d 786 (1970): 5.6(5) Belt v. Wash.Water Power Co., 24 Wash. 387, 64 P. 525 (1901): 4.5 Benson v. Bush,3 Wn.App. 777, 477 P.2d 929 (1970), review denied, 78 Wn.2d 997 (1971): 6.3(2)(a) Bepple, In reMarriage of, 37 Wn.App. 881, 683 P.2d 1131 (1984): 3.4(1)(d)......