Schneider v. Biberger
| Decision Date | 03 December 1913 |
| Citation | 76 Wash. 504,136 P. 701 |
| Parties | SCHNEIDER v. BIBERGER. |
| Court | Washington Supreme Court |
Department 2. Appeal from Superior Court, Chehalis County; Ben Sheeks Judge.
Action by Mary Schneider against John Biberger. Judgment for plaintiff, and defendant appeals. Reversed.
W. H. Abel and Geo. D. Abel, both of Hoquiam, for appellant.
Conway & Snider and Taggart & Phillips, all of Aberdeen, for respondent.
The amended complaint in this action sought to set up a cause of action based upon an indecent assault by appellant upon respondent, resulting in a miscarriage. The first paragraph of the amended complaint alleged 'that on or about June 15, 1911, plaintiff was a married woman residing at the home of her parents. * * *' To this complaint a demurrer was interposed, pleading a defect of parties plaintiff and insufficiency of facts to constitute a cause of action. The demurrer was overruled, to which ruling exception was taken. The trial resulted in verdict and judgment for respondent from which this appeal was taken.
The error upon which appellant most strongly relies is the ruling of the court below upon the demurrer. It seems clear to us that this ruling was erroneous. The amended complaint alleging that plaintiff was a married woman at the time of the assault, the cause of action arising therefrom, and the damages recoverable therefor were clearly such as to make the husband a necessary party to the action. Hawkins v. Front Street Cable Ry. Co., 3 Wash. 592, 28 P. 1021, 16 L. R A. 808, 28 Am. St. Rep. 72; Davis v. Seattle, 37 Wash. 223, 79 P. 784; Matthews v. Spokane, 50 Wash 107, 96 P. 827; Maynard v. Jefferson County, 54 Wash. 351, 103 P. 418; Magnusson v. O'Dea, 135 P. 640.
Section 181, Rem. & Bal. Code, provides that, when a married woman is a party, her husband must be joined with her, except (1) in actions concerning her separate property, (2) when the action is between husband and wife, and (3) when the wife is living separate and apart from the husband. No allegation of the amended complaint brought the cause of action within these exceptions. Respondent contends that the complaint should be regarded as amended to comply with the proof, and that the proof shows that at the time the cause of action arose respondent was living separate and apart from her husband, and hence could maintain the action in her own name. It might be answered, first, that this is not a suit in equity, and hence equitable rules should not obtain. Seeking, however, to avoid rather than to assert any technical ruling, we have read the evidence, and hold that respondent there fails to show that she was living separate and apart from her husband. She testifies that on June 15, 1911, the time of the alleged assault, she had been residing with her parents for about two weeks, and that a week subsequent to the assault she returned to her husband's home, where she remained until she went to a hospital for an operation; that she returned to her husband's home from the hospital, and remained with him until she commenced an action for divorce, the complaint in which was verified August 19, 1911. These facts do not establish a living 'separate and apart' within the meaning of the statute. How can it be said that on June 15th the wife was living separate and apart from her husband, when, within a few days thereafter, she returns to him and resumes marital relations? The return within a few days shows that the absence from the husband was of a temporary nature. Such an absence does not constitute a 'living separate and apart.' Such a situation can only arise where there is an abandonment or desertion by the husband or wife, or a separation which was intended to be final. Tobin v. Galvin, 49 Cal. 34; Lamb v. Harbaugh, 105 Cal. 680, 39 P. 56; Humphrey v. Pope, 122 Cal. 253, 54 P. 847. The return to the husband's home and remaining there until the commencement of the divorce proceedings negatives the...
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Muir v. City of Pocatello
...Mill & Lumber Co., 110 Cal. 480, 42 P. 980; McFadden v. Santa Ana etc. Ry. Co., 87 Cal. 464, 25 P. 681, 11 L. R. A. 252; Schneider v. Biberger, 76 Wash. 504, 136 P. 701; Moody v. Southern P. Co., 167 Cal. 786, 141 P. The husband has the control, management and disposition of the community p......
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...110 A.L.R. 353 (1937). Further, and more directly analogous to the situation presented in the instant case, in Schneider v. Biberger, 76 Wash. 504, 136 P. 701 (1913), it was held in a wife's action seeking damages for an indecent assault, the husband was a necessary party to the lawsuit eve......
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Table of Cases
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