Smith v. Retallick, 33364

• Decision Date: 16 February 1956
• Docket Number: No. 33364,33364
• Citation: 293 P.2d 745,48 Wn.2d 360
• Court: Washington Supreme Court
• Parties: David SMITH, by his guardian ad litem, Oliver Smith, Respondent, v. Joseph A. RETALLICK and Patricia Jean Retallick, man and wife, Appellants.

Page 360

48 Wn.2d 360

293 P.2d 745

David SMITH, by his guardian ad litem, Oliver Smith, Respondent, v. Joseph A. RETALLICK and Patricia Jean Retallick, man and wife, Appellants.

No. 33364.

Supreme Court of Washington, Department 1.

Feb. 16, 1956.

Patrick M. Steele, Tacoma, for appellants.

Peters & Witt, Tacoma, for respondent.

DONWORTH, Justice.

This appeal is primarily concerned with the community's liability for the husband's tort.

On the evening of June 24, 1954, defendant husband drove the community automobile south from Tacoma on the mountain highway to visit a friend who was then employed at a service station which was located at about 148th street. Retallick was alone in the automobile. Because the service station was on the left-hand side of the highway, he drove past to the next intersection, made a U-turn, and drove back, stopping at the station.

In making this U-turn, Retallick almost collided with a vehicle being driven by David Smith. Smith sounded his horn several times and shook his finger at Retallick. Retallick beckoned to Smith to stop and discuss the matter. Smith pulled off the highway and stopped his car about thirty feet ahead of Retallick's vehicle. As Smith walked back to the Retallick vehicle, Retallick came forward to meet him, and each accused the other of 'darn near hitting me.'

As the parties neared each other, Smith, a six-foot, one hundred fifty-five pound nineteen-year old, was shaking his index finger at Retallick. Retallick, twenty-four years old, five feet eleven inches tall, and weighing two hundred five pounds, approached with clenched fists and ordered Smith to get into his car and to drive away. When Smith declined this invitation, Retallick struck Smith a 'right cross' with his clenched fist. That was the beginning and ending of the fight, but, as a result of the blow, Smith sustained multiple fractures of the cheek and upper jaw bone.

Thereafter Smith, by his guardian ad litem, commenced this action, seeking recovery of general and special damages for the injuries sustained. In its oral decision, at the close of the case, the court expressed the opinion that:

'* * * the evidence I think establishes quite clearly, that aside from the anger which had been engendered between the parties because of the traffic mishap, that the plaintiff did not threaten or menace the defendant in any degree that would give him reasonable grounds to strike the blow in question.'

Findings of fact and conclusions of law were made and a money judgment entered in favor of plaintiff 'against the defendants, Joseph A. Retallick and Patricia Jean Retallick, his wife, and the community they compose,' together with costs. From this judgment, defendants appeal.

Assignments of error Nos. 1 and 2 complain of the making of finding of fact No. 3, and of the denial of appellants' motion for nonsuit. The argument advanced in support of these assignments is that respondent provoked the assault by his conduct and threatening gestures, and that the blow was struck in self-defense. In disposing of this argument, the trial court said:

'The shaking of the finger; language exchanged in heat, regardless of who was right or wrong in a traffic situation, does not give one party or the other, the right to resort to physical force and violence.'

Finding of fact No. 3 reads as follows:

'That suddenly, without cause, the defendant, Joseph A. Retallick, did advance and willfully and maliciously strike the plaintiff, David Smith, in the face, causing injuries as set forth below.'

The evidence does not preponderate against this finding. In our opinion, there is no evidence in the record to support appellants' contentions on the matters of provocation and self-defense. Finding of fact No. 4 reads:

'That the plaintiff did not threaten, menace, or make aggressive movements towards the defendant.'

Since error has not been assigned to finding of fact No. 4, it must be accepted as a verity and, therefore, the first two assignments of error are clearly without merit and do not warrant further mention.

Assignment of error No. 3 complains that the court erred in concluding, as a matter of law, that plaintiff was entitled to a judgment against the Retallick community. Finding of fact No. 6 reads:

'That at the time of the above incident in question [the battery], the defendant, Joseph A. Retallick, was engaged in driving the community automobile to the scene of the incident.

That the purpose of said trip was to visit with a certain Edward A. Kinzz. That said Mr. Kinzz was employed as an attendant in the service station where the above altercation took place. That the defendant's purpose was to visit with said Mr. Kinzz, and to enjoy his companionship. That both Mr. Kinzz and the defendant were school teachers, and were going to summer school together.'

Conclusion of law No. 3 reads as follows:

'That at the time of the above assault, the defendant was acting for himself and his wife, and the community they compose, in that he was engaged in an activity which was intended to result in benefit of the community, and that he was engaged in the prosecution of the community business at the time of the above action, when it was committed, Wherefore, * * * Plaintiff is entitled to a Judgment against the defendants, Joseph A. Retallick and Patricia Jean Retallick and the community they compose, * * *'

The court reasoned that the community automobile and the traffic mishap were mere surplusage, because the cause of action was founded solely upon the tort of battery. With this conclusion we are forced to agree, but we cannot adopt the trial court's reasoning in holding the community liable for the husband's tort.

In discussing this matter, the court said that the tort of a spouse, with regard to community liability, must be placed in one of three categories. In one category are those torts which are clearly in derogation of the community, i. e., the extra-curricular activities of a husband in alienating the affections of another's wife. The second category is composed of those torts which are committed by a spouse for the protection or benefit of the community, i. e., a fraud perpetrated in the management of the community business. Between these two extremes is the third or 'neutral' category. The 'neutral' category includes those acts of a spouse from which the community enjoys no obvious or apparent physical or financial advantage but from which the law presumes that the community derives certain benefits, i. e., the recreation and pastimes of the spouse.

While there is much merit in the logic of the court's position, we are not at liberty to apply any such rule in this case. In our opinion, the disposition of this appeal is controlled by the rule announced in Newbury v. Remington, 184 Wash. 665, 52 P.2d 312, 313. The facts in that case are similar in all material respects to the case at bar. In discussing Newbury's contention that the judgment should have been entered against the community, this court said:

'The question of the liability of a marital community for the tortious acts of the husband was considered and the rule for its determination set out in the case of DePhillips v. Neslin, 139 Wash. 51, 245 P. 749, 751, wherein, upon a discussion and review of the authorities, it was said:

"The controlling consideration is, was the tortious act of Neslin, the husband, committed by him in the management of the community property or for the benefit of the community? If so committed, the community must be regarded as having committed the act, and thereby rendered itself liable therefor.' * * *

'Applying the rule to the present case, it cannot be said that the tort committed by the respondent husband grew out of or was connected with his management of the community property, nor was it for the benefit of the community--the tort was committed by him as an aggressor wholly beyond and without any such consideration.'

In that case the denial of recovery against the community was affirmed.

The legal basis for holding the community liable for a tort committed by one member has been respondeat superior. As was said in Bergman v. State, 187 Wash. 622, 60 P.2d 699, 701, 106 A.L.R. 1007:

'It is now the settled law of this state that, if the tortious act of the husband be committed in the management of community property or for the benefit of the marital community, such community is thereby rendered liable for the act. [Citing cases.]

'But this rule is not based upon the mere fact of marital relationship. It is founded on the doctrine of respondeat superior. Under that doctrine, unless, in a given instance, it can be said that the husband was acting as the agent of the marital community, the community is not liable. Day v. Henry, 81 Wash. 61, 142 P. 439; Schramm v. Steele, 97 Wash. 309, 166 P. 634; Olive Co. v. Meek, 103 Wash. 467, 175 P. 33.'

This rule was approved and applied in the unanimous en banc decision of this court in Furuheim v. Floe, 188 Wash. 368, 62 P.2d 706.

The Newbury case has never been overruled or modified, nor has the legislature changed the law on this subject during the twenty years since that decision was announced by this court.

Therefore, applying the rule of stare decisis, on the authority of the Newbury case, we hold that it was error for the trial court to enter judgment against the marital community in the case at bar.

The judgment is reversed and the cause remanded with instructions to enter judgment against defendant husband only.

The parties shall pay their own costs on this appeal.

HAMLEY, C. J., and SCHWELLENBACH and OTT, JJ., concur.

FINLEY, Justice (dissenting).

In a number of cases stretching over a considerable period of time, this court has been confronted with the problem of whether a marital community should be held liable for a tortious act (negligent or otherwise) of one of the members thereof. The decisions in these cases are somewhat lacking in consistency, to...