La Framboise v. Schmidt, 32084

• Decision Date: 10 March 1953
• Docket Number: No. 32084,32084
• Citation: 254 P.2d 485,42 Wn.2d 198
• Court: Washington Supreme Court
• Parties: LA FRAMBOISE, v. SCHMIDT.

Page 198

42 Wn.2d 198

254 P.2d 485

LA FRAMBOISE, v. SCHMIDT.

No. 32084.

Supreme Court of Washington, en Banc.

March 10, 1953.

Rehearing Denied April 14, 1953.

Harry Hazel and I. J. Bounds, Yakima, for appellant.

Tonkoff & Holst, Yakima, for respondent.

MALLERY, Justice.

The parents of six-year-old Beverly LaFramboise desiring to go to Alaska, used the good offices of the Catholic Charities to place her in the custody of the marital community of Louis and Blanche Schmidt. They paid the Catholic Charities thirty-five dollars a month, which, in turn, paid the Schmidts for the child's care. Louis Schmidt subjected the child to indecent liberties, and was criminally convicted therefor.

When the mother returned from Alaska and learned of these facts, she procured her appointment as guardian ad litem for her daughter, and brought this action for damages against Louis Schmidt.

The cause was tried to a jury, which returned a verdict against the marital community in the amount of seventy-five hundred dollars, upon which judgment was entered. The defendants appeal.

The defendants contend that the court erred in giving instruction No. 8, which reads:

'You are instructed that the defendant and his wife, Blanche Schmidt, constitute a marital community.

'If you find by a preponderance of the evidence that said community undertook to care for Beverly LaFramboise and received a consideration therefor, and if you further find by a preponderance of the evidence that the defendant, Louis Schmidt, during the period while said child was in the care and custody of said defendant and of the said community, did take indecent liberties with said child, then the community would be liable therefor.'

In support of this assignment, the defendants contend that the act of Louis Schmidt was done as an individual person; that it was secret and concealed; that it was unforeseen and unforeseeable by the community as such, and was, therefore, not attributable to it. Furthermore, it is contended that, under the doctrine of respondeat superior, such an act was not within the course and scope of the husband's employment by the community.

To the defendants' contention with regard to the unforeseeability by the community of the wrongful act, it is sufficient to say that unforeseeability is an element of the doctrine of negligence, which is not involved in this case. The injury is not a result of negligence of any kind. The act here was a premeditated criminal act, done intentionally. The injury was, therefore, intentional, not negligent.

Both parties are agreed that the liability of a community for the torts of the spouses is placed upon the theory of respondeat superior, and that it is the law of this state that the community is not liable for the torts of the husband, unless the act constituting the wrong either (1) results or is intended to result in a benefit to the community or (2) is committed in the prosecution of the business of the community.

The community had engaged to take care of this six-year-old child. A child of that age has no discretion of her own of any kind which she can insist upon exercising. It follows that everything done with regard to her, by those having custody of her, is a part of her care with which the custodians are charged, and for which they are responsible. The criminal acts here in question were, therefore, a part of the care the child received from her custodians. They were done in the course of the community's business, and the community is, therefore, liable for them.

The instruction was correct, is supported by the evidence in the case, and was, therefore, not error.

The defendants complained that the form of the pleadings will not support a community judgment. It is true Louis Schmidt alone was named as defendant. This, however, is not determinative of the nature of the action, since an action against a married man is presumed to be against the community, and the wife need not be joined separately or independently, since she is represented in the action through the husband. Merritt v. Newkirk, 155 Wash. 517, 285 P. 442.

However, even were this not so, there would be no merit in the defendants' contention, in the instant case, for the reason that counsel for Mrs. Schmidt injected the question of the nature of the action and the judgment into the action.

The answer to the complaint contained the following:

'And the said Louis Schmidt for and on behalf of the community composed of himself and Blanche Schmidt, his wife, denies each and every allegation contained in paragraphs two (2) and three (3) of plaintiff's complaint.'

The prayer of the answer affirmatively asked the following:

'That in the event any judgment be rendered in pursuance to said Complaint it be limited to this answering defendant in his sole and separate capacity and that it be specified in said judgment that no part of said judgment shall be an obligation against the community composed of said Louis Schmidt and Blanche Schmidt, and that no judgment herein rendered shall be a lien against any property heretofore or hereafter acquired by said community.'

It must be remembered also that the wife in this case appeared in the trial and testified. Counsel purported to represent her, as for instance, in making the following statements at different times:

'[p. 9] Well, he is represented here. The community is represented here. * * * Well, the ordinary rule is that a judgment against the man would be presumed...