Bortle v. Osborne

• Decision Date: 24 February 1930
• Docket Number: 21966.
• Citation: 155 Wash. 585,285 P. 425
• Parties: BORTLE v. OSBORNE et al.
• Court: Washington Supreme Court

285 P. 425

155 Wash. 585

BORTLE v. OSBORNE et al.

No. 21966.

Supreme Court of Washington

February 24, 1930

Department 1.

Appeal from Superior Court, King County, Chester A. Batchelor Judge.

Action by Grace Bortle, administratrix of the estate of Joseph A Bortle, deceased, against Ruth Frye Osborne, executrix of the estate of Russell M. Frye, deceased, and another. From a judgment of dismissal, plaintiff appeals.

Affirmed.

Paul W Houser, Palmer, Askren & Brethorst, and H. W. Haugland, all of Seattle, for appellant.

Roberts, Skeel & Holman and Frank Hunter, all of Seattle, for respondents.

MILLARD, J.

Alleging that the death of Joseph A. Bortle resulted from an automobile accident caused by the gross negligence of the host, the administratrix of the estate of the decedent instituted this action for the recovery of damages from the estate of the tort-feasor (who died prior to the commencement of the action) and from the tort-feasor's widow. Upon motion of the defendants, at the close of the plaintiff's case, judgment of dismissal was entered, the court holding that gross negligence creating liability under the host-guest rule was not shown and that the right of action did not survive the death of the alleged tort-feasor. From that judgment the plaintiff appealed.

About four o'clock of the morning of July 24, 1927, Russell M Frye invited two friends named Rinehart and Lyons to accompany him from Seattle to his home on Lake Washington for a swimming party. Frye granted Rinehart's request for permission to invite Joseph A. Bortle. Bortle's wife, the appellant, joined the group by invitation of her husband. About five a. m., the automobile in which the persons named were riding, and which was operated by Frye and owned by the marital community composed of Russell M. Frye and Inez G. Frye, overturned near Renton, Wash. Bortle was instantly killed. The host-driver, Frye, sustained injuries resulting in his death before the commencement of this action. The Fryes were not acquainted with the Bortles. Mrs. Frye was not in the automobile and she had not been informed of the intended visit to the Frye home. A claim presented to the estate of the deceased, Frye, for Bortle's death was rejected, whereupon this action ensued.

Does the right of action against a marital community for a tort committed by the husband member of the community survive against the community on the death of the tort-feasor husband? That is the decisive question in this case.

Stressing the similarity of the community relationship to that of a corporation and of a partnership, and insisting that the community is a separate entity apart from the husband and wife, counsel for appellant cite the following as sustaining authority for the rule which they seek to invoke:

'If the community as such does a wrong, it must respond, just as under the same circumstances a corporation, a partnership, or any other legal entity composed of more than one person, must respond.' Day v. Henry, 81 Wash. 61, 142 P. 439, 440.

'One of the efficient causes of the doctrine in Washington is the view taken by the Supreme Court of that state that the community is a sort of juristic person. In legal imagination community property is detached from the spouses and vested in a holding company, called the community, which the court thrusts in between the spouses and their community property.' McKay, Community Property (2d Ed.) § 817.

'The law of this state permits both the husband and wife to each hold property separate and apart from the other and recognizes that the marriage community is a separate entity distinct from the separate estates of each.' Mattinson v. Mattinson, 128 Wash. 328, 222 P. 620, 621.

'In fixity of constitution a community resembles a corporation. It is similar to a corporation in this, also, that the state originates it, and that its powers and liabilities are ordained by statute. In it the proprietary interests of husband and wife are equal, and those interests do not seem to be united merely, but unified; not mixed or blent, but identified. It is sui generis--a creature of the statute.' Holyoke v. Jackson, 3 Wash. T. 235, 3 P. 841, 842.

The applicability of the doctrine of respondeat superior is urged. It is contended that had the car been operated by an employee of the community within the scope of his duties and the employee later died, the community would be liable for the tort which its agent committed; that if the stockholder of a corporation were the agent-driver for the corporation, or if the agent-driver for a partnership were one of the partners, the action against the principal (the corporation or the partnership) would not abate by reason of the death of the agent. Stating that the case at bar is slightly different from the foregoing illustrations, counsel for appellant argue:

'It is not the agent with whom we are concerned. The case would be just the same were the driver of the car some third person who was not a party to the suit. The corporation's or the partnership's property is still liable for the obligation incurred by its wrongful act. Just like a partnership, a community is a separate entity from the members. It has the right to acquire property, to sell its lands, to enter into contracts, to engage in business, and to assume liabilities. When a partner dies the partnership is dissolved. Would we contend that if the tortfeasor partner died, the partnership property could not be used to compensate for a partnership tort? Whatever be the status of the community--whether it be likened to a partnership or corporation or whether it be held to be a distinctive, separate entity--we believe the doctrine of respondeat superior must be applied. And while we do not ask a separate judgment against the wife or against the estate, we do believe that the community property must be available towards the satisfaction of community wrongs.'

We have not receded from the rule, which we now reiterate, that the liability for the husband's tort which is committed in the management of prosecution of the community business can be enforced against the community property. Milne v. Kane, 64 Wash. 254, 116 P. 659, 36 L. R. A. (N. S.) 88, Ann. Cas. 1913A, 318; Schramm v. Steele, 97 Wash. 309, 166 P. 634. We are not unmindful of expressions of this court that a marital community is an entity and that we have likened the community to a partnership and to a corporation.

By the community property law of this state, sections 6890-6906, Rem. Comp. Stat., the Legislature did not create an entity or a juristic person separate and apart from the spouses composing the marital community. The Legislature did nothing more than classify as community property--designate the character of certain property as community and other property as separate--the property acquired after marriage by the spouses. We have for convenience of expression employed the terms 'entity' and 'legal entity' in referring to a partnership and to a marital community. However, we have never held that a partnership or a marital community is a legal person separate and apart from the members composing the partnership or community, or that either the partnership or the marital community has the status of a corporation. A marital community is in no sense a corporation; neither is it a partnership, though the community of property between the spouses is, in a restricted sense, a partnership between the husband and wife. The Legislature, in defining 'community property,' sections 6890-6906, Rem. Comp. Stat., did not change the relationship of husband and wife to the status of a corporation or declare that the property acquired during marriage was owned by a legal personality distinct from the spouses composing the community. In the community property each of the spouses has an undivided one-half interest.

'In a restricted sense the community of property between husband and wife is a partnership between the husband and wife, but, while in many respects it bears a close analogy to an ordinary partnership the analogy is not complete and in no exact sense can it be denominated a partnership. For the purpose of classification merely, and to keep it distinct in legal contemplation, separate from community rights and obligations, community property between husband and wife is sometimes, by a legal fiction, treated as a distinct legal entity constituting the center of certain defined rights and obligations. But strictly speaking it is not a legal entity.' 31 C.J., p. 9.

'By the provisions of the husband and wife acts passed in 1879, and previously, the husband and wife are conceived as constituting together a compound creature of the statute called a community. This creature is sometimes, though inaccurately, denominated a species of partnership. It probably approaches more nearly to that kind of partnership called universal than to any other business relationship known to the civil or common law.

'A conventional community, in a state where statutes would permit, might be contrived which would be substantially a partnership; but an ordinary legal community is in many important particulars, quite distinct. It is like a partnership in that some property coming from or through one or other or both of the individuals forms for both a common stock, which bears the losses and receives the profits of its management, and which is liable for individual debts; but it is unlike in that there is no regard paid to proportionate contribution, service, or business fidelity; that each individual, once in it, is incapable of disposing of his or her interest; and that both are powerless to escape from the relationship, to vary its terms, or to distribute its assets or its profits. In fixity of constitution a...