Hynes v. Colman Dock Co.

• Decision Date: 03 December 1919
• Docket Number: 15317.
• Parties: HYNES v. COLMAN DOCK CO. et al.
• Court: Washington Supreme Court

185 P. 617

108 Wash. 642

HYNES v. COLMAN DOCK CO. et al.

No. 15317.

Supreme Court of Washington

December 3, 1919

Department 1.

Appeal from Superior Court, King County; Mitchell Gilliam, Judge.

Action by Leah Hynes against the Colman Dock Company and others. From a judgment for defendants, after demurrer to the complaint was sustained, plaintiff appeals. Affirmed.

Russell & Blinn, of Seattle, for appellant.

J Speed Smith and Henry Elliott, Jr., both of Seattle, for respondents.

MACKINTOSH J.

The appellant, a married woman, instituted this suit against the respondents for damages arising from personal injuries sustained by her through the alleged negligence of respondents. The appellant's husband was made a party defendant for the reason, as alleged, 'that plaintiff is unable to procure the consent of her husband to join in with her as one of the plaintiffs herein.' A demurrer to the complaint on the ground of defect of parties plaintiff was sustained, and the case is here for us to decide whether a wife can maintain an action for personal injuries to herself without her husband joining as party plaintiff, when he has merely refused to so join.

The tort action here involved was community personal property and therefore, under section 5917, Rem. &amp Bal. Code, giving the husband like power thereover as he has of his separate personal property, he has the sole power of managing, contracting, and disposing thereof. In Hawkins v. Front Street Cable Railway Co., 3 Wash. 592, 28 P. 1021, 16 L. R. A. 808, 28 Am. St. Rep. 72, the right to sue for personal injury to the wife was held to be in that member of the community who has the disposition of the community personalty, and 'in this case, therefore, the husband was the only necessary party, though the wife * * * was a proper party.' The Hawkins Case cites Ezell v. Dodson, 60 Tex. 331, which resembles the case at bar; it being one which the wife had begun for damages for an assault and battery committed on her by a third party. Her husband was not joined as a party plaintiff, and this omission was explained by his refusal to join, and the fact that he and his wife were living separate and apart. The Texas court said:

'The mere fact that husband and wife are not living together does not authorize the wife to sue alone in any case where she could not thus sue if they were not separated. The refusal of a husband to become a party to an ordinary suit to recover community property would not give the wife the power to sue alone, when they were living together, and he was exercising rightful control over the common estate. She could not, contrary to his wishes, assume control over such estate and bring suit for its recovery, and his refusal to join in such an action would be sufficient to defeat it. An ordinary separation, and much less one caused by her own unprovoked abandonment, would not give her more rights in this respect that she would possess if living amicably with her husband.

'Ordinarily there would be no difference between an action upon contract and one upon tort, in reference to the wife's right to bring the suit without joining the husband as plaintiff, as the one is as much community property as the other. Cases might, perhaps, arise where the wife could, under their peculiar circumstances, sue alone for a trespass to her person, whether she lived with her husband or apart from him. A less aggravated case of abandonment on his part might be sufficient in some instances to give her this right; or if he was accessory to the outrage, or in other cases which might be mentioned, the wife would doubtless be allowed to maintain the action alone. It will be sufficient to decide the law of such cases when they arise. This is not one of them, and it is only necessary for us, for the purposes of the present suit, to hold that a mere separation of the husband and wife, and his refusal to join her in the action, is not sufficient to authorize the wife to prosecute alone a suit for assault and battery committed upon her during coverture. The court rightly sustained the exception of defendant, and the judgment is affirmed.'

See also, Davis v....