Dolan v. Baldridge

• Decision Date: 05 November 1931
• Docket Number: 23227.
• Citation: 4 P.2d 871,165 Wash. 69
• Parties: DOLAN et ux. v. BALDRIDGE et ux.
• Court: Washington Supreme Court

4 P.2d 871

165 Wash. 69

DOLAN et ux. v. BALDRIDGE et ux.

No. 23227.

Supreme Court of Washington, En Banc.

November 5, 1931

Appeal from Superior Court, Spokane County; Wm. A. Huneke, Judge.

Action by Frank Dolan and wife against W. H. Baldridge and wife. Judgment for defendants, and plaintiffs appeal.

Reversed and remanded, with directions.

BEALS J., TOLMAN, C.J., and MAIN, J., dissenting.

Wm. F Lucht, Jr., and Lyle G. von Erichsen, both of Spokane, for appellants.

Lund &amp Dodds, of Spokane, for respondents.

MILLARD J.

This action was commenced by Frank Dolan and wife to recover for personal injuries alleged to have been sustained June 5, 1927, by Mrs. Dolan as the result of the negligent operation of an automobile owned and driven by the defendants, a marital community, in that the defendant (which spouse is not specified) was driving at a reckless and unlawful rate of speed in the city of Spokane and collided with another automobile in which Mrs. Dolan was riding.

Summons and complaint in this action were served on defendant wife personally in Spokane, May 12, 1930. At the same time, substituted service upon defendant husband was attempted by leaving a copy of the summons and complaint with defendant wife at the alleged 'house of his usual abode.' The summons and complaint were placed of record in the office of the clerk of Spokane county, May 29, 1930. On June 3, 1930, defendant wife appeared and moved for a charge of venue to King county, on the ground that that county was her place of residence. Defendant husband at the same time appeared specially, objecting to the jurisdiction of the court upon the ground that there had been no service of process upon him; and moved the quashing of the 'service had by leaving a copy of the summons and complaint with his wife while she was transitorily in Spokane,' and when defendants' house of usual abode was in Seattle. The wife's motion for change of venue to King county, and the motion to quash service on the husband, were sustained.

On September 25, 1930, defendant husband was served personally with summons and complaint in King county. On October 14, 1930, defendant husband demurred to the complaint on the grounds that the complaint did not state facts sufficient to constitute a cause of action against him; and that the action 'was not commenced and service made upon said defendant within the time limited by law therefor and said action is barred by the statute of limitations.' The demurrer was sustained on the ground that the action as to the defendant husband 'was not commenced within the time limited by law, and that the service of the summons and complaint on the said W. H. Baldridge was made more than 90 days after the filing of the complaint, and said service is hereby quashed, for the reason that when the aforesaid service was made the statute of limitations had run against the cause of action against said W. H. Baldridge.' The court also granted the motion of defendant husband to strike an affidavit filed by the plaintiffs. The affidavit was to the effect that affiant from July 23, 1930, until August 13, 1930, made repeated calls at the Seattle residence of defendants to serve summons and complaint; that at none of those times was affiant 'able to find them in'; that he was informed on August 13, 1930, that defendant husband had been in San Francisco 'for a month or month and a half and that Mrs. Baldridge was in Billings, Montana.'

Plaintiff refusing to plead over after the sustaining of defendant husband's demurrer to the complaint, defendants moved for dismissal of the action as to both defendants, on the ground that the plaintiffs were in default; that the action was against the defendants as a marital community, and, as it was barred as against the husband, it could not be maintained against the wife. The motion was sustained, and judgment of dismissal was entered December 27, 1930. Plaintiffs appealed.

The complaint alleges that the respondents are husband and wife; that Mrs. Dolan was injured as the result of the negligent operation of an automobile owned and driven by the respondents. Clearly, the action is against the respondents as a marital community. The liability, if any, for the tort of which appellants complain, would be a community obligation. That being so, the husband was a necessary party defendant, without whom the action could not proceed, as the action could not be maintained against the wife alone for a community obligation. It was essential, therefore, to the maintenance of the action against the marital community that either personal service or substituted service of summons be made upon the husband. Substituted service is not valid unless it is made in the manner prescribed by the statute. Our statute provides that the summons shall be served by delivering a copy thereof '* * * to the defendant personally, or by leaving a copy of the summons at the house of his usual abode with some person of suitable age and discretion then resident therein.' Section 226, Rem. Comp. Stats. (Italics ours.)

It appears that respondent husband was a national bank examiner; that on April 18, 1930, he received an order from the United States Treasury Department, his employer, that his headquarters had been changed from Spokane to Seattle, 'effective at the earliest practicable date,' and was directed to advise the department of his change of address. Pursuant to the order, respondent husband removed his headquarters to Seattle April 28, 1930, on which date he so advised the department as follows: 'In accordance with your instructions I have proceeded to Seattle, Washington, arriving 7:30 A. M., April 29, 1930. You will later be advised of my residence address.'

On April 27, 1930, respondent wife went to Montana to visit her parents, with whom she remained until May 6, 1930. On May 9th and 10th she was in Seattle with her husband, engaged in selecting a permanent place of residence in that city. On May 11, 1930, she returned to Spokane 'to get the furniture,' and, while so employed May 12, 1930, she was served with summons and complaint, and substituted service upon her husband was attempted at the same time, as above related.

Obedient to the command of his superior, the respondent husband established his headquarters in Seattle April 28, 1930. The wife availed herself of the opportunity to visit her parents. On May 9th and 10th the wife and husband busied themselves in Seattle in selecting a permanent place of residence in that city. While the affidavit does not recite the street and house number, no other reasonable conclusion can be drawn than that they succeeded in finding a place to live, inasmuch as on May 11th the wife returned to Spokane to ship the household furniture to the respondents' new home in Seattle. While engaged in that task on May 12, 1930, she was personally served, and substituted service upon her husband was attempted. The wife was not then residing at the Spokane residence. The husband had not been there since April 27th, when he departed from Spokane and established his headquarters in Seattle. Clearly, the Spokane house, the former home of respondents, the place from which they were then removing their household goods, was not the house of their usual abode under the statute.

'In its relation to the question 'to whether a summons has been left at the house of his usual abode,' the quoted term means one's fixed place of residence for the time being, the place where defendant is actually living at the time, and may be synonymous with 'residence.' But ordinarily 'usual place of abode' is a much more restricted term than 'residence' and means the place where the defendant is actually living at the time when service is made. Service at the dwelling house of defendant, which is not described as his usual place of abode, is not sufficient. The purpose of the use of the term in the act relating to the service of process has primary reference to the place where the defendant is usually to be found. Therefore 'usual place of abode' means 'present place of abode." 2 Words and Phrases, Second Series, page 918. (Italics ours.)

To the same effect is Mygatt v. Coe, 63 N. J. Law, 510, 44 A. 198, 199, in which the phrase 'usual place of abode' is defined as the house in which the person to be served is actually living at the time of the service. The husband was not, the wife was not, actually living at the Spokane residence at the time service was attempted. She was there simply for the purpose of removing their household goods to their new residence in Seattle. At the time substituted service upon the husband was attempted, 'the house of his usual abode' was in Seattle. There he was actually living. In that abode, his new home, his wife would soon join him with their household goods, which she was preparing for shipment at the time service was attempted. The substituted service was not valid, as a copy of the summons was not left 'at the house of his usual abode'; hence the court did not err in quashing same upon motion of respondent husband.

The sustaining of the demurrer of the respondent husband and the granting of respondents' motion to strike a third party's affidavit filed by the appellants are assigned' as error.

Mrs. Dolan was injured June 5, 1927. Her right of action accrued at that time. The statute (section 159, Rem. Comp. Stat.) provides that, unless an action in such a case is commenced within three years after the cause of action shall have accrued, recovery is barred. The complaint was filed May 29, 1930, which was within the three-year period, and was sufficient to toll the statute if service were had upon the respondent within ninety days thereafter.

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