Schmidt v. Schmidt, 34293

• Citation: 321 P.2d 895,51 Wn.2d 753
• Decision Date: 20 February 1958
• Docket Number: No. 34293,34293
• Court: United States State Supreme Court of Washington
• Parties: Vera SCHMIDT, Appellant, v. Richard Anthony SCHMIDT, Respondent.

Page 753

51 Wn.2d 753

321 P.2d 895

Vera SCHMIDT, Appellant, v. Richard Anthony SCHMIDT, Respondent.

No. 34293.

Supreme Court of Washington, Department 2.

Feb. 20, 1958.

Peyser, Cartano, Botzer & Chapman, John D. Cartano, Seattle, for appellant.

Patrick H. Shea, Seattle, for respondent.

HUNTER, Justice.

This is an action for divorce, instituted by Vera Schmidt against her husband, Richard Anthony Schmidt, on the grounds of cruelty.

The parties were married for twenty-one years. One daughter and one son were born of this marriage and their ages were fifteen and thirteen years respectively, at the commencement of this divorce action in September, 1956. Financially, the marriage was a success, the parties having accumulated an estate of the approximate value of one hundred fifty thousand to one hundred seventy thousand dollars. Their prosperity, however, was not conducive to happiness at all times. Both parties drank to excess. On occasion, they used rough and profane language toward one another and, in the later years of their marriage, supplemented words with physical violence.

Shortly after one of the assaults complained of, the plaintiff separated from her husband and commenced this action for divorce. The husband contends that his acts were (1) justified and provoked, (2) the parties were equally at fault, and guilty of similar acts of misconduct.

During the trial, the evidence revealed that the parties were guilty of committing assaults, each upon the other, the most serious encounter being graphically described by the husband himself when he testified as follows:

'I says: 'If you don't,' I says, 'I am going to kill you' * * * and I got her down on the bed. There was some tearing and hair pulling, and I slapped her this way a few times (indicates) with my fist but just like that (indicates). 'Well,' I said, 'I am going to kill you.' So I got her down on the bed and I put my fingers around her neck this way (indicates), but I didn't put any pressure on her neck here; I just held her.'

At the conclusion of the trial the court found, in part, as follows:

'That the defendant has struck the plaintiff, not with his fist but open palm, across the face of the plaintiff, but only after plaintiff had first slapped, cursed, and spit on defendant. Both parties have been guilty of using threatening and vulgar language towards the other.'

From its findings, the court concluded in paragraph No. 1 of its conclusions of law:

'That the plaintiff's charges are without legal foundation and although defendant has threatened and struck the plaintiff, it was only upon being provoked into doing so by the plaintiff, and further, that the plaintiff has been more guilty of committing the acts that she complains of the defendant than is the defendant.'

Judgment was entered denying a divorce, and this appeal followed.

It is contended by the appellant that the trial court erred in its denial of her divorce. The appellant must prevail, unless the doctrines of 'provocation' and 'recrimination,' raised by the respondent to support the judgment, can be applied.

The respondent relies on Rackett v. Rackett, 1940, 5 Wash.2d 262, 105 P.2d 22, 23, in his assertion that the slapping of his wife was justified, in that he was provoked by her conduct. We did say in that case:

'In any event, epithets, no matter how opprobrious, never justify an assault unless, in the light of some statute, they are intended to provoke the assault which follows. Restatement of the Law of Torts, § 69; 4 Am.Jur. 154, § 53.

'By the same token, opprobrious words are insufficient to sustain the defense of recrimination against an action for divorce grounded upon cruelty by means of assault. Ill advised conduct, on the part of a wife, provoked by ill treatment, will not defeat her right to a divorce. Denison v. Denison, 4 Wash. 705, 30 P. 1100; Briggs v. Briggs, 56 Wash. 580, 106 P. 126; Stolz v. Stolz, 96 Wash. 227, 164 P. 920.' (Italics ours.)

We then referred therein to Rem.Rev.Stat. § 2417 [cf. RCW 9.11.050] which provides:

'Every person who shall by word, sign or gesture, wilfully provoke, or attempt to provoke, another person to commit an assault or breach of the peace, shall be guilty of misdemeanor.'

and stated:

'In taking this view, we have not overlooked Rem.Rev.Stat., § 2417 [P.C. § 8762]. If that statute, under any circumstances, coud be held to justify an assault because of 'word, sign or gesture' made by the person assaulted, it has no apllication here, because there is nothing in the record here to justify the inference that appellant directed epithets at respondent to 'wilfully provoke' an assault.'

In the case at bar, neither the record nor the findings of the trial judge support the conclusion that the appellant directed her conduct toward the respondent to 'willfully provoke' an assault upon her. In any event, this section of the statute does not hold that a person so provoked would be justified in committing the assault. Under the present facts, the only justification for an assault would be on the grounds of self-defense, and then the husband could use only such force which to him would seem reasonably necessary, as a prudent man acting under similar circumstances, to protect himself from injury. See Robison v. La Forge, 1933, 175 Wash. 384, 27 P.2d 585; State v. Miller, 1926, 141 Wash. 104, 250 P. 645; 6 C.J.S. Assault and Battery § 18(3), pp. 809, 812; 4 Am.Jur. 147, § 38.

We do not question the finding of the trial judge that the ill-advised conduct of the wife provoked the husband into the use of the physical force invoked upon her. However, it was incumbent upon the husband to restrain himself to avoid the commission of any assault upon his wife, unless reasonably necessary for his own protection. It is proper to consider the strength of the husband as compared to the wife in making this determination. In 4...