Hammond v. Jackson

• Decision Date: 07 February 1916
• Docket Number: 12666.
• Parties: HAMMOND v. JACKSON et al. (GREEN et al., Garnishees.
• Court: Washington Supreme Court

154 P. 1106

89 Wash. 510

HAMMOND v. JACKSON et al. (GREEN et al., Garnishees.

No. 12666.

Supreme Court of Washington

February 7, 1916

Department 2. Appeal from Superior Court, King County; A. W. Fraber Judge.

Action by F. E. Hammond against William K. Jackson and others, with Frank E. Green and L. F. Chester, as garnishees. From a judgment for plaintiff, the defendants appeal. Reversed, and cause remanded, with instructions to enter judgment for defendants.

Green &amp Chester, of Seattle, for appellants.

Tucker & Hyland, of Seattle, for respondent.

FULLERTON J.

The appellant Lulu B. Jackson, a married woman living with her husband, was injured while alighting from a street railway car operated by the receivers of the Seattle, Renton &amp Southern Railway Company. She conceived that her injury was caused by the negligent operation of the car, and that she was entitled to recover in damages for such injuries. To that end she employed the respondent, Hammond, an attorney at law to prosecute her claim therefor, promising to pay him for his services a certain percentage of the amount recovered. The contract was in writing, and was executed by the appellant as her separate contract, her husband not joining therein. The respondent immediately entered upon the performance of the contract, first petitioning the court for leave to sue the receivers, and, failing in that, sought a settlement with the receivers, and succeeded in obtaining an offer from them to pay the sum of $600 in satisfaction of the claim.

While the foregoing negotiations were in progress, the appellant William K. Jackson, the husband of the other appellant, employed the law firm of Green & Chester to represent himself and the community of himself and wife in the prosecution of the claim against the receivers. This employment was also evidenced by a writing, which was practically in the same terms as the contract made by the wife with the respondent. After this contract was entered into, the wife notified the respondent thereof by letter, dictated by the firm of Green & Chester, in which she told him to take no further action with reference to the claim, saying further:

'As my husband was not a party to the agreement you had me sign, I do not feel bound by the agreement, and request that you return the same to me.'

The firm of attorneys employed by the husband succeeded in settling the claim with the receivers for the sum of $1,000. The respondent thereupon brought the present action against the appellants, basing his cause of action upon the contract signed by the wife. Issue was taken on the complaint, and a trial was had before the court sitting without a jury. The court found the contract valid, assessed the amount of the respondent's recovery at $175, and entered judgment in his favor for that sum. This appeal followed.

The sole question presented is whether a married woman, living with her husband, may make a valid contract with an attorney to prosecute an action in damages against one by whose negligence she has suffered a personal injury.

The Code (Rem. & Bal. § 181) provides that when a married woman is a party, her husband must be joined with her, except (1) when the action concerns her separate property; (2) when the action is between herself and her husband; and (3) when she is living separate and apart from her husband. It further provides ( Id. § 182) that husband and wife may join in all causes arising from injuries to the person or character of either or both of them, or from injuries to the property of either or both of them, or out of any contract in favor of either or both of them. Construing these sections we have repeatedly held that the husband is a necessary party to all actions arising because of personal injuries to the wife if the parties were living together as husband and wife at the time the injury was received. Schneider v. Biberger, 76 Wash. 504, 136 P. 701, and cases there collected. Indeed, our holding has been that the husband was the only necessary party to such an action. This on the principle that the claim of damages for the injury was community personal property of the spouses, and, since the statute (Rem. & Bal. Code, § 5917) vests in the husband while...