Goode v. Martinis
| Decision Date | 11 May 1961 |
| Docket Number | No. 35640,35640 |
| Citation | 361 P.2d 941,58 Wn.2d 229 |
| Court | Washington Supreme Court |
| Parties | Richard GOODE and Edna V. Goode, his wife, Appellants, v. Paul V. MARTINIS, Respondent. |
Douglas R. Hendel, John F. Kovarik, Seattle, for appellants.
William F. Ingram, Bell, Ingram & Smith, Everett, for respondent.
This is an action brought by Richard and Edna V. Goode, as husband and wife, against respondent, Paul V. Martinis, to recover twenty-five thousand dollars damages for an alleged assault and battery by Mr. Martinis upon Mrs. Goode (who will be referred to as though she were the sole appellant, since her husband is only a nominal party to this action). The case comes before us only on the complaint, as appellant's cause of action was dismissed prior to trial.
At the time of the alleged assault, January 9, 1958, appellant and respondent were husband and wife, although on November 14, 1957, appellant had commenced a divorce action against respondent which was then awaiting trial. On December 18, 1957--some three weeks prior to the date of the alleged assault--the two parties entered into a comprehensive separation agreement settling their respective property rights as well as the questions of child custody and support. 1 On February 18, 1958, almost six weeks after the date of the alleged assault, the divorce action was tried and appellant was awarded a final decree of divorce from respondent on the grounds alleged in her original divorce complaint (cruelty and personal indignities).
Pertinent portions of appellant's amended complaint in the tort action now before us read as follows:
'IV. On or about the evening of January 9, 1958, eight weeks subsequent to the separation of the plaintiff Edna V. Goode and the defendant herein, and more than three weeks following the execution of the separation agreement referred to in Paragraph III hereof, the defendant entered the residence of the said plaintiff in Everett, Washington, and then and there did assault said plaintiff by forcibly having sexual intercourse with her against her will, without her consent, and over her repeated protests.
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'VI. The instances of cruelty and personal indignities alleged in said plaintiff's divorce complaint were held by the [divorce] court to be sufficient grounds for the granting of said decree of divorce and were not related to the assault herein alleged. The evidence adduced at the trial of said divorce action was limited to the issues raised by the pleadings. The trial court was not aware of the assault herein alleged and the issues raised herein were in no way litigated in said divorce action. The provisions of said divorce decree relating to property division and child custody and support were identical to the provisions of the 'Property Settlement and Custody Agreement' made by the parties prior to the assault herein alleged.
Respondent moved, under Rule of Pleading, Practice and Procedure 12(b)(6), RCW Vol. O, to dismiss appellant's complaint for failure to state a claim upon which relief can be granted. The trial court granted respondent's motion, dismissing the amended complaint with prejudice.
The sole question, therefore, for our determination is whether or not a divorced wife can maintain an action against her former husband based on a personal tort committed while the parties were legally separated but before the decree of divorce was finalized.
It is generally agreed that, at common law, the fictional concept of unity of persons meant that tort actions, as well as all other types of civil actions, could not be maintained by one spouse against the other. As stated by one authority, 'as to her personal and property rights the very legal existence of the wife was regarded as suspended for the duration of the marriage.' See Prosser on Torts (2d ed.) 670, § 101. At common law, a wife possessed no capacity to contract, to sue, or to be sued without the joinder of her husband. But by legislation in this state, as in many other American jurisdictions, these vestiges of a feudal society have been largely eliminated.
The following Washington statutes make reference to the right of spouses to maintain actions in their individual capacity:
RCW 26.16.130 provides, in part, that a wife
'* * * may prosecute and defend all actions at law for the preservation and protection of her rights and property as if unmarried.'
RCW 26.16.150 provides that:
'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.'
RCW 26.16.160 provides that:
'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: Provided, always, That nothing in this chapter shall be construed to confer upon the wife any right to vote or hold office, except as otherwise provided by law.'
The leading Washington case on the question of personal tort actions by spouses inter se is that of Schultz v. Christopher, 1911, 65 Wash. 496, 118 P. 629, 38 L.R.A.,N.S., 780. The case concerned a suit by a divorced woman against her former husband based on what the court characterized as an intentional tort (communicating a venereal disease) committed while the parties were still married and living together. The sole statute relied upon by the plaintiff-wife was that which is now codified as RCW 26.16.160, set forth supra, dealing generally with the abrogation of the common-law disabilities of married women. The court in the Schultz case held that nothing contained in RCW 26.16.160 conferred the right upon one spouse to sue the other for the commission of a personal tort. We quite agree. However, in view of the very unusual factual pattern of the Schultz case, as well as the narrow purpose of the one statute upon which the holding was based, we are inclined to think that the Schultz case is neither controlling nor dispositive of the issue now before us.
Assuming for purposes of argument that RCW 26.16.150, providing that a married person shall have the same right 'to sue and be sued, as if he or she were unmarried,' does not abrogate the common-law rule of spousal disability inter se, we feel that, in light of the facts of this case, as alleged in appellant's complaint, she should be afforded her day in court.
There have been a number of reasons advanced over the years in support of the common-law rule. But each of these reasons is largely inapplicable to the factual pattern now before us. The chief reason relied upon by the courts in jurisdictions which refuse to permit the maintenance of personal tort actions between spouses is that such actions would disrupt and tend to destroy the peace and harmony of the home. 2 Whether, in general, there is any merit to this position (in view of the fact, for instance, that by swearing out a criminal complaint for assault and battery a wife can rather effectively disrupt the tranquillity of the home by means of another legal avenue), is not really germane to the determination of the cause in question. Here, divorce proceedings had already been instituted and the parties, by written agreement, were living apart. It is obvious that there was no domestic harmony left to be disrupted or destroyed. The assault itself, also, rather...
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