Clark v. Beggs

• Decision Date: 16 March 1926
• Docket Number: 19555.
• Citation: 138 Wash. 62,244 P. 121
• Parties: CLARK et al. v. BEGGS et al.
• Court: Washington Supreme Court

244 P. 121

138 Wash. 62

CLARK et al. v. BEGGS et al.

No. 19555.

Supreme Court of Washington

March 16, 1926

Department 1.

Appeal from Superior Court, King County; Hall, Judge.

Action by Nellie P. Clark, now Nellie P. Day, and another, against Agnes C. Beggs and another. Judgment for defendants, and plaintiffs appeal. Affirmed.

Joseph M. Glasgow, of Seattle, for appellants.

Roberts & Skeel, of Seattle, for respondents.

HOLCOMB J.

Appellant whose name was then Clark, while a guest at a hotel in Seattle, owned by respondents, received severe personal injuries, alleged to have been the result of reckless and incompetent handling and management of a passenger elevator on August 30, 1922. On July 27, 1923, she brought action in the court below for damages for personal injuries, and recovered a verdict on February 15, 1924 against respondents in the sum of $1,150. On March 14, 1924 judgment n. o. v. was entered against her, upon the sole ground that appellant was a married woman at the time of the injuries complained of, not divorced from her husband until a few days before the trial of the action, and that there was an improper joinder of parties, defective parties plaintiff, and lack of capacity to sue. The action was thereupon dismissed with costs.

The sole error claimed and argued is in granting the motion for judgment n. o. v., and entering judgment of dismissal.

It is alleged in the second amended complaint of plaintiff:

'That she is the wife of one Clark, from whom she has procured an interlocutory decree of divorce, and from whom she is now living separate and apart, and is prosecuting this action for personal injuries for herself alone.'

It is also alleged:

'That on the 30th day of August, 1922, the plaintiff was a guest in said hotel, and as such she occupied a room with her said husband on the fourth floor thereof, and that upon said day * * * she was severely and permanently injured.'

The evidence showed that appellant and her then husband were living together in the hotel when the injury occurred. They continued to live together as husband and wife for some time thereafter. It will be noted that she started no action until about a year after the accident. In the divorce decree this cause of action was not awarded to her separately. As soon as the divorce decree became final, she married one Day. Upon the trial, when the question was raised that the community was not a party to the action, and that the community interests had not been settled in the divorce action as was shown by the record, and that the husband had not parted with, nor been divested of, his community interest in the cause of action, appellant asked leave to amend by bringing in a new party. She then brought in, not Clark, her husband at the time of the injury, but Day, the new husband, over the objections of respondents.

Appellant relies upon the statutes, as follows:

Rem. Comp. Stats. § 6901:

'All laws which impose or recognize civil disabilities upon a wife, which are not imposed or recognized as existing as to the husband, are hereby abolished, and for any unjust usurpation of her natural or property rights she shall have the same right to appeal in her own individual name to the courts of law or equity for redress and protection that the husband has. * * *'

Also section 6895:

'A wife may receive the wages of her personal labor, and maintain an action therefor in her own name, and hold the same in her own right, and she may prosecute and defend all actions at law for the preservation and protection of her rights and property as if unmarried.'

Also section 6900:

'Every married person shall hereafter have the same right and liberty to acquire, hold, enjoy, and dispose of every species of property, and to sue and be sued as if he or she were unmarried.' Also section 6902:

'Contracts may be made by wife, and liabilities incurred, and the same may be enforced by or against her to the same extent and in the same manner as if she were unmarried.'

And lastly section 6904:

'For all injuries committed by a married woman, damages may be recovered from her alone, and her husband shall not be responsible therefor, except in case where he would be jointly responsible with her if the marriage did not exist.'

In addition to reliance upon the foregoing statutory provisions, appellant argues very learnedly upon the principles of the common law that the right of action for the recovery of damages for personal injuries to a wife, inflicted upon her during marriage by a tortfeasor, is not property nor a property right, but is purely a personal right, growing out of the violation of her right to personal protection, and that a right of action for personal injuries to a wife through the tort of another is not property within the meaning of our community property statute, but in purely a personal right to the injured wife.

McKay on Community Property (2d Ed.) §§ 378, 379, is cited and quoted to the effect (abridging) that:

'At common law, a cause of action, viewed as a distinct right, takes its character as separate or common from the character of the primary right involved; if separate property be taken away from its owner, be converted, or damaged, the right to recover the property itself, or damages for its conversion or injury, is clearly separate. * * * That now, the same as at the common law, she holds as her own the right to her personal security, and now, the same as at common law, the cause of action for the violation of her right of personal security should be held to be hers. To take from her the cause of action and the compensation impairs her right of personal security, which the law of community was not intended to do.'

The arguments and authorities submitted by appellant are very forceful and persuasive, and possibly, if made originally when...