Lorang v. Hays

• Decision Date: 01 July 1949
• Docket Number: 7514
• Citation: Lorang v. Hays, 69 Idaho 440, 209 P.2d 733 (Idaho 1949)
• Parties: LORANG v. HAYS et al
• Court: Idaho Supreme Court

209 P.2d 733

69 Idaho 440

LORANG v. HAYS et al

No. 7514

Supreme Court of Idaho

July 1, 1949

Rehearing Denied Sept. 27, 1949.

Rehearing Denied September 27, 1949.

Appeal from District Court, Tenth Judicial District, Nez Perce County; A. H. Featherstone, Judge.

Reversed and remanded with instructions.

Cox Ware & Stellmon, Lewiston, for appellant.

The wife may maintain an action in her own name to recover damages for injuries to her person or character. Giffen v. City of Lewiston, 1898, 6 Idaho 231, 55 P. 545; Muir v. City of Pocatello, 1922, 36 Idaho 532, 212 P. 345; Fox Tucson Theatres Corp. v. Lindsay, 1936, 47 Ariz. 388, 56 P.2d 183; Franklin v. Franklin, 1945, 67 Cal.App.2d 717, 155 P.2d 637; Hamilton v. Great Falls St. Ry. Co., 1896, 17 Mont. 334, 43 P. 713; Frederickson & Watson Const. Co. v. Boyd, 1940, 60 Nev. 117, 102 P.2d 627 at page 629; Marton v. Jones, 1919, 44 Cal.App. 299, 186 P. 410.

A cause of action for damages to the person or character of a married woman which accrued while she was living separate and apart from her husband is "an accumulation" under the provisions of Sec. 31-910 I.C.A. and is her own separate property. Giffen v. City of Lewiston, 1898, supra; City of Phoenix v. Dickson, 1932, 40 Ariz. 403, 12 P.2d 618 at page 620; Horton v. City of Seattle, 1909, 53 Wash. 316, 101 P. 1091; Wiard v. Market Op. Corp., 1934, 178 Wash. 265, 34 P.2d 875.

A married woman may maintain an action for damages for injury to her person or character against her husband or former husband. Courtney v. Courtney, 1938, 184 Okl. 395, 87 P.2d 660; Fiedeer v. Fiedeer, 1914, 42 Okl. 124, 140 P. 1022, 52 L.R.A.,N.S., 189; Steele v. Steele, U.S.D.C.1946, 65 F.Supp. 329; Rains v. Rains, 1935, 97 Colo. 19, 46 P.2d 740 at page 742.

V. R. Clements, Lewiston, for respondent Lorang and Tobin.

Property or money recovered as damages or compensation for personal injuries sustained by one spouse belongs to the community estate, on the basis that the right to recover damages for personal injuries is a chose in action and property, and this right of action having been acquired during the marriage is community property. Consequently, damages or compensation recovered for such personal injuries are also community property. Swager v. Peterson, 49 Idaho 785, 291 P. 1049; Sprouse v. Magee, 46 Idaho 622, 269 P. 933; Labonte v. Davidson, 31 Idaho 644, 175 P. 588; Giffen v. City of Lewiston, 6 Idaho 231, 55 P. 545; Lindsay v. Oregon Short Line R. Co., 13 Idaho 477, 90 P. 984, 12 L.R.A.,N.S., 184; Muir v. City of Pocatello, 36 Idaho 532, 212 P. 345.

The Idaho cases are not decisive on the question of whether the husband is a necessary party. It was first said that he was. Giffen v. City of Lewiston, 6 Idaho 231, 250, 55 P. 545; Lindsay v. Oregon Short Line R. Co., 13 Idaho 477, 90 P. 984, 12 L.R.A.,N.S., 184.

But this was specifically overruled. Labonte v. Davidson, 31 Idaho 644, 648, 175 P. 588.

The court still later referred to the Labonte ruling in the Giffen case as dictum, but said that the wife's suit alone tolls the statute of limitations, but after discussing the earlier cases cited above said both that the husband was and he was not a necessary party. Muir v. City of Pocatello, 36 Idaho 532, 539 and 540, 213 P. 345.

The latest expression on the subject is that the husband is a necessary party. Sprouse v. Magee, 46 Idaho 622, 627, 269 P. 933.

The right to recover damages being community property, its status does not change by subsequent divorce of the parties. App.Br. p. 11 (Points and Authorities 9) and p. 17; 27 Am.Jur. 196 (Husband and Wife, sec. 574); Schultz v. Christopher, 1911, 65 Wash. 496, 118 P. 629, 38 L.R.A.,N.S., 780.

Ray E. Durham, Lewiston, for respondent Hays & National Surety.

Edward C. Butler, Lewiston, H. Earl Davis, Spokane, Washington, for respondent Great American Indemnity.

There is a misjoinder of parties defendant, in that the defendant Great American Indemnity Company, as surety on the official bond of Ralph M. Wade, cannot properly be joined as a party defendant with Henry M. Lorang, Alice Tobin, W. W. Hays or the National Surety Corporation, the surety on the official bond of W. W. Hays, as sheriff. Jacobson v. McMillan, 64 Idaho 351, 132 P.2d 773; Verheyen v. Dewey, 27 Idaho 1, 146 P. 1116; Haffner v. United States Fidelity & Guar. Co., 49 Idaho 451, 288 P. 1071; Annotation, 106 A.L.R. 90 (p. 94); Annotation, 137 A.L.R. 1044.

The alleged cause of action by the plaintiff against the defendants Henry M. Lorang, Alice Tobin and W. W. Hays, and the surety on his official bond cannot be joined with the alleged cause of action against the defendant Great American Indemnity Company. Section 5-606 Idaho Code Annotated; Stearns v. Graves, 61 Idaho 232, 99 P.2d 955; Haffner v. United States Fidelity & Guaranty Co., 49 Idaho 451, 288 P. 1071; Jacobson v. McMillan, 64 Idaho 351, 132 P.2d 773.

Keeton, Justice. Holden, C. J., and Givens, Porter and Taylor, JJ., concur.

OPINION

Keeton, Justice.

This action was brought by Marguerite Lorang, the appellant (plaintiff), against the respondents (defendants), claiming damages for false arrest and false imprisonment. Defendant Ralph M. Wade was never served with process and made no appearance in the cause. Respondent Great American Indemnity company was made a defendant on its bond as surety for defendant Ralph M. Wade, and defendant National Surety Corporation was made defendant as surety on the bond of W. W. Hays. All appearing defendants filed general and special demurrers and motions to strike various parts of the amended complaint as amended.

All legal questions so presented by demurrers and motions were heard by the trial court and sustained, and the action dismissed with prejudice.

This appeal is from the judgment.

The amended complaint as amended covers twenty pages of the transcript and a lengthy recital of all its allegations would serve no useful purpose. It charges that the defendants Henry M. Lorang, Alice Tobin, and defendant Hays, acting in his official capacity as sheriff of Nez Perce county, forcibly removed the plaintiff from an automobile in which she was sitting in Lewiston, Idaho, and without any process, commitment or legal authority whatsoever, transported her over her protest and objections to Orofino, and delivered her to the defendant Ralph M. Wade, superintendent in charge of the State Hospital for the insane; that the acts so done were malicious wrongful, unlawful, without any order of court, legal process or commitment, and that the defendant Wade, acting in concert with the other defendants, without any order of court, legal process or commitment, incarcerated and imprisoned her in the insane asylum, and kept her there so confined from April 2d to July 11th; and also alleges that plaintiff and defendant, Henry M. Lorang, were married November 27, 1919, and lived together as husband and wife until April 2, 1942, at which time they separated and plaintiff lived separate and apart from said defendant Henry M. Lorang, at all times thereafter, and that said parties were divorced April 27, 1944, and that the plaintiff is now and ever since said date has been a single woman.

A purported commitment was made and signed by the probate judge of Clearwater county April 6th. This commitment is attacked as invalid and void for numerous reasons alleged, and the plaintiff charges it was a fraud fabricated and produced by the defendants, Hays, Wade, Lorang and Tobin.

The amended complaint as amended further enumerates in detail the acts of the said defendants and each, and charges that the defendants acted jointly and in concert, and pursuant to a conspiracy; that the plaintiff was not insane, which was well known to the defendants, Lorang, Tobin, Hays and Wade.

The defendant Hays is sued in his official capacity as sheriff, and Wade in his official capacity as superintendent of the asylum.

The action was commenced after the divorce above referred to was granted.

The complaint prays judgment against the defendants for actual and exemplary damages.

Numerous contentions and arguments are submitted in the briefs as to why the motions and demurrers were properly sustained and arguments submitted by appellant as to why such motions and demurrers should have been overruled.

It is contended by the respondents that the defendant Lorang is a necessary party plaintiff and that an action cannot be maintained by a wife, or a former wife, for a tort committed on her person during coverture without joining her former husband as a party plaintiff, and that any recovery would be community property.

"The earnings and accumulations of the wife * * * while she is living separate from her husband are the separate property of the wife." Sec. 32-909, I.C.

Former cases decided by this court: Giffen v. City of Lewiston, 6 Idaho 231, 55 P. 545; Lindsay v. Oregon Short Line Railroad Co., 13 Idaho 477, 90 P. 984, 12 L.R.A.,N.S., 184; Swager v. Peterson, 49 Idaho 785, 291 P. 1049; Labonte v. Davidson, 31 Idaho 644, 175 P. 588, holding that damages recoverable or recovered for injuries to wife are community property, and that the husband is a necessary party plaintiff, have never been held by this court to apply where the parties are separated; and even though the parties were living togther as husband and wife, the rule has been questioned.

In the case of Muir v. City of Pocatello, 36 Idaho 532, 540, 212 P. 345, 347, the court said:

"If a married woman has a right to maintain an action to recover for her personal services, she certainly should not be denied the right to maintain an action for an injury to her person or character", and quoted from Chicago, B. & Q. Ry. Co. v. Dunn, 52 Ill. 260, 4 Am.Rep. 606, as follows:

"'A right to...