Kowaleski v. Kowaleski

• Decision Date: 19 April 1961
• Citation: 361 P.2d 64,1 A.L.R.3d 666,227 Or. 45
• Parties: , 1 A.L.R.3d 666 Bernice B. KOWALESKI, Appellant, v. Antone KOWALESKI, Respondent.
• Court: Oregon Supreme Court

Page 64

361 P.2d 64

227 Or. 45, 1 A.L.R.3d 666

Bernice B. KOWALESKI, Appellant, v. Antone KOWALESKI, Respondent.

Supreme Court of Oregon, Department 1.

Argued and Submitted Dec. 8, 1960.

Decided April 19, 1961.

Milton O. Brown, Portland, for appellant.

Roland F. Banks, Jr., Portland, for respondent. With him on the brief were Mautz, Souther, Spaulding, Kinsey & Williamson, Portland.

Before McALLISTER, C. J., and ROSSMAN, PERRY, SLOAN and KING, JJ.

ROSSMAN, Justice.

This is an appeal by the plaintiff, Bernice Kowaleski, from a judgment which the circuit court entered in favor of the defendant, Antone Kowaleski, after it had sustained the defendant's motion for the entry of judgment on the pleadings. The motion was predicated upon this ground:

'* * * it affirmatively appears from the pleadings on file herein that any injury sustained by plaintiff was result of acts of plaintiff's husband driving defendant's automobile * * *.'

The plaintiff's automobile which had been proceeding northerly on east 39th Street in Portland, had stopped before entering the intersection of 39th and east Burnside Streets. While it was standing there it was struck from the rear by the defendant's car which was also driving northerly. The operator of the defendant's car was the plaintiff's husband who was the defendant's employee. The complaint alleged negligence and based upon those averments sought damages for the injury which the plaintiff said she sustained. The answer, in addition to denying all charges of negligence, averred in part:

'* * * the defendant's automobile at that time and place referred to in plaintiff's complaint and herein was being operated by Andrew J. Kowaleski who is the husband of the plaintiff herein and since the plaintiff has no cause of action against her said husband plaintiff likewise has no cause of action against the defendant.'

Plaintiff's counsel, with commendable desire for simplicity in the submission of the case on appeal, states:

'The only question presented on appeal is whether a wife may hold her husband's principal or employer liable for injuries sustained by her as a result of her husband's negligence while her husband was in the scope of his agency or employment.'

In recent years several questions analogous to the one just quoted have been before this court. Cowgill v. Boock, 189 Or. 282, 218 P.2d 445, 19 A.L.R.2d 405, held that the administratrix of the estate of a youth who lost his life in an automobile accident which also took the life of his father who was operating the death-dealing car could maintain an action against the administrator of the father's estate upon charges that the double death was caused by conduct of an intentional or willful character. Apitz v. Dames, 205 Or. 242, 287 P.2d 585, which held that in this jurisdiction there no longer remains the legal unity of husband and wife that the common law had brought into being, ruled that a wife may sue her husband for an intentional tort. Wiebe v. Seely, Administrator, 215 Or. 331, 335 P.2d 379, 390, held that where the liability of a principal for the tort of an agent is predicated upon the theory of respondeat superior it is unnecessary to join the husband as a defendant if he was the driver (agent) of the tortious vehicle. The decision stated:

'* * * Liability of the principal, therefore, does not necessarily depend upon a judgment against the agent, but upon the fact of the agent's negligence. * * *'

We stress those last seven words, 'upon the fact of the agent's negligence.' Going on, the decision stated:

'* * * If proof of that fact may be sufficient to establish the liability of the principal where the agent is not made a party, though he might have been, we think it may be equally sufficient even though, because of some rule of law, based on considerations of public policy or the like, an action against the latter is precluded.

'The underlying principle is set forth in the Restatement of Agency, § 217:

"(2) A master or other principal is not liable for acts of a servant or other agent which the agent is privileged to do although the principal himself would not be so privileged; but he may be liable for an act as to which the agent has a personal immunity from suit.'

'Comment B on this section contains the following illustration:

"* * * Thus, if a servant, while acting within the scope of employment, negligently injures his wife, the master is subject to liability."

This court has not ruled in the past upon the precise question which this case presents. The decisions of the other courts which were confronted with it are diametrically opposed to each other. The defendant (respondent) relies on the following cases which hold that a wife may not sue her husband's employer for the husband's negligence: Maine v. James Maine & Sons, 1924, 198 Iowa 1278, 201 N.W. 20, 37 A.L.R. 161; Sachnoff v. Sachnoff, 1932, 131 Me. 280, 161 A. 669; Riegger v. Bruton Brewing Co., 178 Md. 518, 16 A.2d 99, 131 A.L.R 307; Emerson v. Western Seed & Irrigation Co., 1927, 116 Neb. 180, 216 N.W. 297, 56 A.L.R. 327; Raines v. Mercer, 1932, 165 Tenn. 415, 55 S.W.2d 263; Baker v. Gaffney, D.C.D.C.1956, 141 F.Supp. 602. Maine v. James Maine & Sons, supra, was the first and is the most frequently cited case in this series. There, the wife was a passenger when she was injured in the employer's automobile which was driven by her husband. It was held on two theories that the principal employer was not liable. First, the rationale of Phillips v. Barnett, 1 QBD 436, was relied on to deny recovery. The rationale, since repudiated by Broom v. Morgan, 1 QB 597 (1953), was that according to the common law a husband and wife were one person. Phillips v. Barnett, supra, held that even after divorce the erstwhile wife could not sue her former husband for assault and battery committed during coverture.

The second theory of the Maine case was that:

'* * * the liability of the employer for the negligent acts of his servant is based upon the familiar doctrine of respondeat superior. Unless the servant is liable, there can be no liability on the part of the master. This has been repeatedly held in cases where both were sued, and the verdict was against the employer only. White v. Text-book Co., 150 Iowa 27, 129 N.W. 338; Dunshee v. Standard Oil Co., 165 Iowa 627, 146 N.W. 830; Hobbs v. Railroad Co., 171 Iowa 624, 152 N.W. 40, L.R.A.1917E, 1023; Arnett v. Railroad Co., 188 Iowa 540, 176 N.W. 322.' [198 Iowa 1278, 201 N.W. 21].

The proposition that unless the servant is liable the master cannot be liable is an over generalization and inaccurate statement of the law as will be noticed by reverting to our quotation from Wiebe v. Seely, supra. It means merely that if the principal is sought to be held liable on the theory of respondeat superior he is not answerable in damages unless the agent was negligent; the statement does not cover the situation when the agent is granted an immunity. Schubert v. August Schubert Wagon Co., 223 App.Div. 502, 228 N.Y.S. 604; 129 Misc. 578, 222 N.Y.S. 115, affirmed 249 N.Y. 253, 164 N.E. 42, 64 A.L.R. 293; Mullally v. Langenberg Bros. Grain Co., 1936, 339 Mo. 582, 98 S.W.2d 645; Webster v. Snyder, 1932, 103 Fla. 1131, 138 So. 755. The Arnett and Dunshee cases were cited for dictum in Main. White v. International Text-book Co., supra, was an action for malicious prosecution and the jury found for the defendant-agent and against the company-principal. It was held that the verdict was contradictory and erroneous because the corporation acted only through its agent-defendant and could not be responsible if the agent were not culpable. Hobbs v. Illinois Cent. R. Co., supra, held that the principal was not liable on the basis of respondeat superior if the agent were not blameworthy. In these two cases cited in the Maine case the essential ingredient for liability of the principal is that the quality of the agent's act must be unlawful before the principal may be held accountable.

Emmons v. Southern Pacific Co., 97 Or. 263, 191 P. 333, is also relied on by the respondent (defendant) as support for his contention that a principal is liable on the doctrine of respondeat superior only if the agent is liable. This was an action to recover damages for injuries sustained when the plaintiff's automobile stalled on defendant's tracks and was hit by the defendant's train. The jury returned a verdict against the defendant but did not find either for or against the motorman of the train. Under those circumstances, it was held that the defendant was not liable in damages because the plaintiff did not prove the agent was negligent. This case, like White v. International Text-book Co. and Hobbs v. Illinois Cent. R. Co., was decided on the theory that an agent must be negligent before a principal is answerable for damages on the basis of respondeat superior.

Following the lead of Schubert v. August Schubert Wagon Co., 249 N.Y. 253, 164 N.E. 42, 64 A.L.R. 293, which was written by Cardozo, C. J., many courts have held that a wife may recover from her husband's employer for the husband's negligence. These cases include: Webster v. Snyder, 1932, 103 Fla. 1131, 138 So. 755; Garnto v. Henson, 1953, 88 Ga.App. 320, 76 S.E.2d 636; Tallios v. Tallios, 1952, 345 Ill.App. 387, 103 N.E.2d 507; Broaddus v. Wilkenson, 1940, 281 Ky. 601, 136 S.W.2d 1052; Pittsley v. David, 298 Mass. 552, 11 N.E.2d 461; Miller v. J. A. Tyrholm & Co., 1936, 196 Minn. 438, 265 N.W. 324; McLaurin v. McLaurin Furniture Co., 1933, 166 Miss. 180, 146 So. 877; Mullally v. Langenberg Bros. Grain Co., 1936, 339 Mo. 582, 98 S.W.2d 645; Hudson v. Gas Consumers' Ass'n, 1939, 123 N.J.L. 252, 8 A.2d 337; Metropolitan Life Ins. Co. v. Huff, 48 Ohio App. 412, 194 N.E. 429, reversed on other grounds 1934, 128 Ohio St. 469, 191 N.E. 761; Koontz v. Messer, 1935, 320 Pa. 487, 181 A. 792; Poulin v. Graham, 1929, 102 Vt. 307, 147 A. 698; Hensel v. Hensel Yellow Cab Co., 1932, 209 Wis. 489...