McHenry v. Short

• Decision Date: 24 November 1947
• Docket Number: 30214.
• Citation: 29 Wn.2d 263,186 P.2d 900
• Parties: McHENRY v. SHORT et ux.
• Court: Washington Supreme Court

186 P.2d 900

29 Wn.2d 263

McHENRY v. SHORT et ux.

No. 30214.

Supreme Court of Washington

November 24, 1947

Department 2

Action by Hazel McHenry in her own right and as administratrix of the estate of George W. McHenry, deceased, against Fred Short and Geneva Short, husband and wife, to recover against defendant husband and against the marital community of which he was a member for an assault. Judgment for plaintiff and defendants appeal.

Affirmed.

Appeal from Superior Court, Kitsap County; H. G. Sutton, judge.

J. W Graham, of Shelton, Marion Garland, of Bremerton, and Frank Hunter, of Seattle, for appellants.

Charles T. Wright, of Shelton, and Brodie & Brodie and Oliver R Ingersoll, all of Olympia, for respondent.

STEINERT Justice.

In an action tried to the court without a jury, the plaintiff suing in her own right and also as administratrix of her husband's estate, recovered judgment for damages against one of the named defendants and the marital community of which he was a member, for an assault committed by that defendant upon, and resulting in the death of, plaintiff's husband. This appeal is prosecuted by the defendants for and on behalf of the marital community only.

Two questions are raised on the appeal: (1) whether the complaint stated a cause of action against the community composed of the two individual appellants; and (2) whether the evidence was sufficient to establish the fact that, at the time of committing the assault, the aggressor appellant was acting for and on behalf of the marital community of which he was a member, in furtherance of community business.

The complaint alleged, in limine, that George W. McHenry, the victim of the alleged assault, died May 6, 1943, leaving as his survivors his widow, respondent Hazel McHenry, and five children, two of whom were then minors; and that appellants, Fred Short and Geneva Short, at all times here involved were and are husband and wife. The following paragraphs of the complaint constitute the material allegations of the pleading in so far as we are presently concerned:

'IV. That on or about the 4th day of May, 1943, at about the hour of 8:15 A.M., while the said George W. McHenry was engaged in his daily labor, the defendant [appellant], Fred Short, acting for and on behalf of the community composed of defendants [appellants], Fred Short and Geneva Short, husband and wife, approached the said George W. McHenry and without just cause or provocation maliciously, unlawfully and unjustly assaulted the said George W. McHenry, and with great force and violence beat and struck him about the head and body, knocking the said George W. McHenry down and inflicting grievous injuries upon the said George W. McHenry; that as a result of the said injuries inflicted upon him by the said Fred Short, the said George W. McHenry did languish and languishing did die on or about the 6th day of May, 1943.

'V. That defendant, Fred Short, did commit the assault herein complained of under the guise and pretext of ejecting the said George W. McHenry from real property claimed by the community composed of defendants, Fred Short and Geneva Short, husband and wife.

'VI. That the said George W. McHenry was at the time of said assault employed by and performing services and labor, in that he was painting a motor boat for and at the request of one E. K. Bishop, and that defendants as a community had granted to the said E. K. Bishop the right and privilege of keeping and storing certain personal property, to-wit: the said motor boat, boat house and marine railway, in the place where the said assault occurred, together with the privilege of ingress and egress to and from said personal property by said E. K. Bishop and his servants and agents and that defendants as a marital community had received compensation from said E. K. Bishop.' (Italics ours.)

For purposes of our present consideration, the material portions of the complaint may be condensed to read thus: That on the day in question Fred Short, acting for and on behalf of the community composed of the two appellants, unlawfully assaulted and inflicted grievous injuries upon George W. McHenry, respondent's husband, from which he died; that Short committed such assault under the guise and pretext of ejecting McHenry from certain real property claimed by the appellants as their community property; that at the time of the occurrence McHenry was performing work on a boat belonging to one Bishop and being stored on the premises where the assault was committed; and that the appellants as a marital community had received compensation from Bishop for the privilege of keeping the boat on the premises and for the right of ingress thereto and egress therefrom by Bishop and his agents or servants.

A demurrer to the complaint, interposed by the marital community, was overruled. Error is assigned upon that ruling, and the contentions now are (1) that, as against a demurrer, the phrase 'acting for and on behalf of the community' is not a sufficient allegation of community interest or liability, and (2) that the averment in the complaint that Fred Short committed the assault 'under the guise and pretext' of ejecting the deceased from premises claimed by the community was equivalent to saying that the assault was not committed for the purpose of evicting the deceased from the premises, but, rather, for personal reasons only, with removal as a mere pretext or guise.

In determining whether or not a complaint is sufficient as against a demurrer, the pleading, taken as a whole, will be liberally, not strictly, construed, with a view to substantial justice between the parties. Rem.Rev.Stat. § 285; McMahan v. Mutual Benefit Health & Accident Association, Wash., 182 P.2d 4, and cases therein cited.

We have frequently held that where substantial facts constituting a cause of action are stated in the complaint or can reasonably be inferred from the matters set forth therein, although the allegations of such facts are in effect conclusions of law, or are otherwise imperfect, incomplete, or defective, the insufficiency pertaining to the form rather than to the substance of the pleading, the proper mode of correction is not by demurrer nor by excluding evidence at the trial, but by motion Before trial to make the averments more definite and certain by amendment. McMahan v. Mutual Benefit Health & Accident Association, supra, and cases therein cited.

In this instance, there was no motion to make the complaint more definite and certain. The attack upon the pleading was, first, by demurrer, and, later, by objection to the admission of any evidence by respondent.

The complaint may not be a model of good pleading, but we are unable to say that the facts as therein alleged, together with the relevant inferences readily deducible therefrom, are insufficient to state a cause of action. It may be that the construction placed by appellants on the words 'under the guise and pretext' is not an illogical one, and that the quoted phrase taken alone, may be interpreted to mean that the assault was committed not for the purpose of evicting the deceased from the premises, but purely to satisfy some personal grudge of Fred Short alone. However, even though eviction or the attempt to evict may have been but the ostensible reason or motive, assumed or assigned to cover the real motive, for the assault, still if the assault was a part of, or a step in, an actual eviction or attempt to evict, the ulterior motive which may have led to the assault would not of itself change the nature or legal effect of the overt act. To state it in another way, if the assault was committed while an eviction was actually in progress or being attempted, the mere fact that the physical attack was stimulated by some ulterior personal motive would not of itself render the act any the less an eviction or an attempt to evict.

Reading the complaint as a whole, we think it reasonably susceptible of the interpretation that, at the time of the altercation, Short was in the act of ejecting or was attempting to eject McHenry from premises which the community claimed to own or over which they had some authority, and that in doing what he did Short was acting in pursuance of his management of community property or in the furtherance of community business, even though his acts were in part influenced by his personal animosity. It is our opinion that the complaint was sufficient to permit the introduction of evidence in support of that theory, and that it was not error to overrule the demurrer.

The next question, then, is whether the evidence was in fact sufficient to establish liability on the part of the marital community for the assault committed by one of its members.

At the time involved in this action, appellants Short resided in the town of Union, in Mason county, where they conducted a garage business. Their property lay between a highway and the waters of Hood Canal. Along one side of their property was a dedicated, but unopened, street extending from the highway to the water front. About five years or more prior to the event here in question, one E. K. Bishop had erected a boathouse at the water end of this unopened street, and had kept therein a speed boat which he used for pleasure purposes. The boathouse immediately adjoined the Short premises.

It appears that there were two keys to the boathouse, one of which was retained by Bishop and the other one kept by Short. It further appears that during this five-year period Bishop had customarily paid Short the sum of $3 a month. The evidence is for the most part to the effect that these payments were made in consideration of Short's services in storing the boat when necessary and in keeping general watch over the...