deElche v. Jacobsen, 46715-3
| Decision Date | 31 December 1980 |
| Docket Number | No. 46715-3,46715-3 |
| Parties | Joan deELCHE, Appellant, v. Harry W. JACOBSEN, and Victoria Jacobsen, his wife, Respondents. |
| Court | Washington Supreme Court |
Williams, Lanza, Kastner & Gibbs, Joel D. Cunningham, Seattle, for appellant.
Chambers, Marston, Hodgins, Shorett, Young & Gillingham, Paul Gillingham, Seattle, for respondents.
Donovan Flora, Daniel F. Sullivan, Ronald Bland, Frank Stubbs, Seattle, for amicus curiae.
The facts in this case are not disputed upon appeal. Mrs. deElche, her ex-husband and Mr. Jacobsen and his wife were socializing aboard the latter's 36-foot community-owned sailboat. Mrs. deElche decided to leave when the other three started drinking heavily. She went to bed aboard her ex-husband's boat which was tied up along side the Jacobsens'. The others continued partying, which the trial court found to be community recreation. Later that night Mr. Jacobsen left his community-owned boat in an intoxicated state, went aboard the other vessel, and forcibly raped Mrs. deElche.
In the resulting civil case Mrs. deElche was awarded a judgment against Mr. Jacobsen separately. Since prior to the incident the Jacobsens had validly executed a community property agreement which converted all of their property to community property, Mr. Jacobsen had no separate property. The judgment was thus uncollectible since under then existing law community property was deemed exempt from judgments arising from separate torts. Mrs. deElche appealed, asking us to overturn the rule which immunizes Mr. Jacobsen's community property and to follow the trend announced in Werker v. Knox, 197 Wash. 453, 456, 85 P.2d 1041 (1938):
(O)f recent years, the trend of the law has not been toward relieving the community from liability for the torts of its individual members, but has been quite definitely in the direction of finding ways and means of imposing such liabilities upon the community.
We feel her position has merit.
The history of the exemption of community property from separate tort judgments is informative. Initially Brotton v. Langert, 1 Wash. 73, 78, 23 P. 688 (1890), held community owned real property was exempt from a judgment arising from a tort "not incurred for the benefit of the community." Stockand v. Bartlett, 4 Wash. 730, 31 P. 24 (1892), made it clear a separate debt creditor could not sell community real estate to reach the debtor's one-half interest, but Powell v. Pugh, 13 Wash. 577, 43 P. 879 (1896), did allow recovery from community personal property. Powell was overruled, however, by Schramm v. Steele, 97 Wash. 309, 166 P. 634 (1917), and from that time on all community property has been exempt from separate tort judgments.
The community "benefit" necessary to impose liability has been broadly 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 658, 120 P.2d 512 (1941) (); see also King v. Williams, 188 Wash. 350, 62 P.2d 710 (1936). Driving the family car yielded community liability, Birch v. Abercrombie, 74 Wash. 486, 133 P. 1020 (1913), particularly when it involved a community errand, buying "necessaries" such as a sweater, Werker v. Knox, supra. The combination of the management rule, benefit rule, family purpose doctrine, and imposition of liability when one of the spouses has been engaged in legitimate recreational activity has meant that, in practice, the community with few exceptions has been found liable for all torts except "purely personal altercations" and alienation of affection-type suits. Cross, Community Property Law in Washington, 49 Wash.L.Rev. 720, 836 (1974) (hereinafter Cross). Normally only a slight connection with the community has been required. But see Bergman v. State, 187 Wash. 622, 60 P.2d 699 (1936), where the husband burned down a community-owned business in an attempt to collect insurance money and liability was found to be separate only.
Too often the determination of whether the tort is separate or community has been based on distinctions without a difference. Originally there was a distinction between torts committed in public versus private employment, the latter producing only separate liability. See, e. g., Brotton v. Langert, supra. This distinction was abolished in Kilcup v. McManus, 64 Wash.2d 771, 394 P.2d 375 (1964), however. Now distinctions more often are based on the ownership of property involved in the tort, which seldom has anything to do with the motivation of the defendant or injury to the plaintiff. For example see Newbury v. Remington, 184 Wash. 665, 52 P.2d 312 (1935), in which an assault was held to be separate although it arose out of driving the community automobile while returning from recreational activities. Defendant and plaintiff were driving in the same direction; when plaintiff attempted to pass, defendant repeatedly blocked him, all the while making various gestures. Eventually defendant forced plaintiff off the road, left his automobile, and struck plaintiff with his fist. This was held to be a separate tort based on the following rationale. (T)he automobile was not used by respondent husband in striking and beating the appellant, nor was it in use at all by him at the time the assault and battery was inflicted by the respondent husband. He was away from the automobile at that time. The uncontested finding of fact is "that said defendant (A. D. Remington) alighted from the automobile and went back to plaintiff's automobile, etc.," striking and beating the appellant.
Newbury at 668, 52 P.2d 312. (Italics in original.) Clearly, if defendant had struck plaintiff with the automobile, rather than with his fist, the community would have been held liable. The same result would have been reached had he stayed inside his auto rather than alighting. Yet, neither distinction is so great that they should ultimately determine whether plaintiff should or should not recover.
An analogous case decided the opposite way is Benson v. Bush, supra. There, defendant broke up a dog fight between his community-owned dog and that of his neighbors by spraying a chemical in the face of the neighbors' dog. Thereafter defendant became angered by the neighbor and, when the latter started to walk away, sprayed some chemical in his face also. This was held to be a community tort since defendant had not "launched upon an individual enterprise of his own which had no relationship to the community ..." Bush, 3 Wash.App. at 780, 477 P.2d 929. See also McHenry v. Short, 29 Wash.2d 263, 186 P.2d 900 (1947) (); Blais v. Phillips, 7 Wash.App. 815, 502 P.2d 1245 (1972) ().
On the other hand, the tortious act in Edmonds v. Ashe, 13 Wash.App. 690, 537 [622 P.2d 838] P.2d 812 (1975), was done expressly to benefit the community but only separate liability was found. There, the husband held some close friends hostage in an attempt to force a reconciliation with his wife. In a scuffle one of the friends was killed as was the husband. Although the Court of Appeals clearly had a difficult time distinguishing other cases, they felt they could not hold that the husband was acting in a way designed to benefit the community. There, however, there was no compelling reason to hold the wife's half interest in the community property liable. Since the husband had died, his half of the property was liable for any separate judgment and plaintiff was able to recover.
Other cases which found community liability upon tenuous contacts with the community, distinguished by Edmonds, include LaFramboise v. Schmidt, 42 Wash.2d 198, 254 P.2d 485 (1953), where the husband committed indecent liberties upon a child staying in their home, and Moffitt v. Krueger, supra, where a wife permitted a male friend with whom she had been drinking to drive the community automobile and his negligent driving caused an accident. In the cited cases the only way plaintiff could recover was a determination that the community was held liable.
Clearly the current rule has yielded illogical, inconsistent and unjust results. When logically and equitably it was the tort-feasor alone who should bear the costs of his actions, the courts have been given only two choices either impose one half of the liability upon the property of the nontortfeasing spouse, even though that spouse had nothing to do with the tort, or force the innocent victim to bear all damages produced by an acknowledged tortfeasor if that tortfeasor, even though solvent, had only community property. The tortfeasor could hardly lose; absent the ownership of separate property he or she could be held liable to pay either only half the judgment or nothing at all.
The avowed purpose of this rule was to protect the community entity from the "misdeeds, improvidence or mismanagement" of the miscreant spouse. See Brotton v. Langert, supra 1 Wash. at 80, 23 P.2d 688. Clearly the early cases were based on the "entity" theory of the community. They speak of the community property statutes "breath(ing) into legal existence a distinct and original creation ... termed a 'community' ". Brotton at 78, 23 P.2d 688. The property was said to be "not the property of either of the parties, but of the community". Stockand v. Bartlett, supra 4 Wash. at 731, 31 P. 24. As said in Schramm v. Steele, supra 97 Wash. at 315, 166 P. 634, "it is the statutory entity the community as such which owns the property."
Later cases have made it clear, however, that the community does not exist as a separate and distinct juristic entity, and that the property of the community is under the...
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