Manion v. Pardee

• Court: Washington Supreme Court
• Writing for the Court: FINLEY; HAMILTON; ROSELLINI
• Citation: Manion v. Pardee, 482 P.2d 767, 79 Wn.2d 1 (Wash. 1971)
• Decision Date: 18 March 1971
• Docket Number: No. 40970
• Parties: Howard T. MANION, as Guardian ad Litem of Bonita Pardee, Appellant, v. Hugh A. PARDEE, Violet Pardee, his wife, and Herbert Pardee, Respondents.

Page 1

79 Wn.2d 1

482 P.2d 767

Howard T. MANION, as Guardian ad Litem of Bonita Pardee, Appellant, v. Hugh A. PARDEE, Violet Pardee, his wife, and Herbert Pardee Respondents.

No. 40970.

Supreme Court of Washington, En Banc.

March 18, 1971.

Whitmore, Powers, Manion & Ishikawa, Howard T. Manion, Seattle, for appellant.

Williams, Lanza, Kastner & Gibbs, William D. Cameron, Seattle, for respondent.

FINLEY, Justice.

The instant appeal presents a unique factual pattern. Plaintiff-appellant, Bonita Pearson, was injured by a shotgun blast fired from the gun of the respondent Herbert Pardee. At the time of the injury both Bonita and Herbert were minors and unmarried. Some 19 months later they married and became husband and wife. Thereafter, while still married, Bonita, through her guardian ad litem, Howard T. Manion, commenced this lawsuit against her husband Herbert and his parents. The complaint alleged Herbert's negligence in handling the gun and alleged negligence on the part of Herbert's parents in their entrusting the gun to him. Thereafter, Herbert moved for, and was granted, an order of summary judgment dismissing him from the action upon the grounds of interspousal immunity. This appeal followed. Subsequently, and during the pendency of this appeal, Bonita and Herbert were divorced.

At first blush, the sum of these facts seems a reasonable facsimile of 'the stuff from which law school examinations are made.' But truth is often at least as strange as fiction, and the facts, although unusual, present a live justiciable issue. Before discussing this issue it is first necessary to examine the respondent's motion to dismiss the instant appeal. The contention is that the order appealed from herein is a mere interlocutory summary adjudication; and, therefore, it is not appealable as a final judgment under Civil Rule 54(b). That rule, in pertinent part, reads:

(b) Judgment Upon Multiple Claims or Involving Multiple Parties. When more than one claim for relief is presented in an action, * * * or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties Only upon an express determination in the judgment, that there is no just reason for delay and upon an express direction for the entry of judgment. * * *

(Italics ours.)

In essence, the respondent asserts that the effect of the above-stated rule is to require an express certification of appealability by the trial court before an appeal will lie from determinations under that rule. In this regard, respondent relies upon Rule on Appeal 14(1) which states, in part: ¹

Rule 14. Appeal--When allowed. An aggrieved party may appeal * * *:

(1) From the final judgment entered in any action or proceeding * * *.

(Italics ours.)

Civil Rule 54(b) is designed to prevent the waste inherent in piece-meal appeals. To this end, the rule provides for a finding by the trial court that no reason for delay exists before an appeal will lie. However, in light of the purpose behind the rule, even assuming, but not deciding, that an express certification of appealability is contemplated, the absence of such express certification should not prevent an appeal where the vice sought to be prevented--I.e., delay--is not present.

This Court has previously, although Sub silentio, allowed appeal from a summary judgment dismissing less than all parties in a multiple party action, absent such express certification of appealability in the trial court's order. See Ferrin v. Donnellefeld, 74 Wash.2d 283, 444 P.2d 701 (1968). W...