Stevens v. Murphy

• Citation: 421 P.2d 668,69 Wn.2d 939
• Decision Date: 15 December 1966
• Docket Number: No. 38341,38341
• Court: Washington Supreme Court
• Parties: Patricia STEVENS and Colleen Stevens, By and Through Dorothy Harrison, their guardian ad litem, Appellants, v. Dennis MURPHY, a single man, and James A. Reynolds and Jane Doe Reynolds, husband and wife, Appellants, Arthur G. Stevens, Respondent.

Page 939

69 Wn.2d 939

421 P.2d 668

Patricia STEVENS and Colleen Stevens, By and Through Dorothy

Harrison, their guardian ad litem, Appellants, v. Dennis MURPHY, a single man, and James A. Reynolds and Jane

Doe Reynolds, husband and wife, Appellants,

Arthur G. Stevens, Respondent.

No. 38341.

Supreme Court of Washington, Department 2.

Dec. 15, 1966.

James P. Healy, Burkey, Marsico & Rovai, Tacoma, for appellants.

Johnson, Griffin, Boyle & Enslow, Tacoma, for respondent.

BARNETT, Judge. ^*

Minor plaintiffs, Patricia and Colleen Stevens, through their guardian ad litem, appeal from a trial court order by which their claim against defendant Arthur G. Stevens, their father, was dismissed without prejudice. Defendants Dennis Murphy and James Reynolds (and Jane Doe Reynolds) also join as appellants. The minor plaintiffs will hereinafter be referred to as plaintiff appellants; Murphy and Reynolds, as defendant appellants; and defendant Arthur Stevens, as respondent.

For reasons which will later become apparent, we shall carefully summarize the pleadings and other matters of record which are critical to the disposition of this appeal.

As a result of an October, 1963, automobile collision, plaintiff appellants filed a complaint against defendant appellants, alleging that their injuries were caused by the negligence of the latter. In an answer and third party complaint, the defendant appellants added respondent Stevens (the father) as a third party defendant.

Thereafter, plaintiff appellants filed an amended complaint, by which respondent, the father, was added as a party defendant. In the amended complaint plaintiff appellants realleged that the original defendants' negligence was a proximate cause of their injuries. They also alleged that respondent, the added defendant, was their father, and that he had been Grossly negligent in making a left turn off a highway, and that his gross negligence was also a proximate cause of their injuries.

In his answer to plaintiff appellants' amended complaint, respondent admitted that he was the father of the minor plaintiffs, but denied that their injuries were caused by negligence on his part. As an affirmative defense, respondent alleged that plaintiff appellants' action against him 'is barred under the law of the State of Washington, as the said third party defendant is the natural parent and guardian of * * * (plaintiff appellants).'

Shortly after answering, respondent filed a motion which he denominated as a 'Motion and Affidavit to Dismiss Plaintiffs' Complaint Against Third Party Defendant, Arthur G. Stevens.' His motion for dismissal was based 'on the grounds that the * * * (claims) are prohibited by law.' Since an answer had been interposed prior thereto, the motion will be considered as one for a judgment on the pleadings. United States for Use of E. E. Black Limited v. Price-McNemar Construction Co., 320 F.2d 663 (9th Cir. 1963). In a supporting affidavit, the respondent alleged several facts not previously alleged or admitted in the prior pleadings, viz., (1) that at the time of the collision the minor plaintiffs, his natural daughters, 'were traveling with him in his parental capacity'; (2) that they were en route to the home of respondent's mother, whom they had intended to visit; and (3) that plaintiff appellants were bringing suit against him without his approval or consent.

In an oral decision (which, incidentally, does not appear in the record), the trial court granted respondent's motion to dismiss plaintiff's action against him. Before a written order to that effect was issued, plaintiff appellants filed a motion to reconsider, asking the trial court to reverse its oral decision to dismiss. In support of their motion, plaintiff appellants filed a written brief. Mention in the brief, the tenor of which was an argument urging the inapplicability of parental immunity to this case, were two undisputed facts which theretofore had not appeared in the record, viz., (1) that respondent, prior to the accident, had been divorced from the mother of the minor plaintiffs; and (2) that the divorce decree had vested in the mother the care, custody and control of the children, leaving the father with visitation rights and a duty of support.

Defendant appellants, Murphy and Reynolds, likewise filed a motion asking the court to reconsider its oral decision to dismiss plaintiff appellants' claim against their father. As part of their motion, defendant appellants requested the court to consider and publish a deposition previously taken of respondent Stevens. The record reveals that, at the time and place respondent's deposition was taken, all parties to the lawsuit were represented.

The trial court refused to reverse its oral decision and entered a formal order of dismissal, by which plaintiffs' claims against respondent were dismissed without prejudice. The trial judge, in his written order, stated that he had considered the 'motion and Affidavit and the arguments of counsel' and that his ruling was based 'on the grounds * * * that * * * plaintiffs have no justificiable claim against * * * their parent.' (Italics ours.) The record reveals, also, that the Deposition of respondent was considered by the trial court in granting the motion to dismiss. The deposition was included in the statement of facts certified by the court. The certification contained the following paragraph:

THAT the above and foregoing Statement of Facts contains the material facts, matters and proceedings * * * except the oral argument, and contains all of the depositions considered * * *.

The certification of the statement of facts was made in accordance with American Universal Ins. Co. v. Ranson, 59 Wash.2d 811, 370 P.2d 867 (1962).

In ruling upon respondent's motion to dismiss, it is clear that the trial court considered matters outside the pleadings. Rule of Pleading, Practice and Procedure 12(c), RCW vol. O, states in part:

If, on a motion for judgment on the pleadings, Matters outside the pleadings are presented to and not excluded by the court, the motion Shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion * * *. (Italics ours.)

Since the trial court, in ruling upon the motion, considered extraneous matter, the motion to dismiss was, in substance, converted into a motion for summary judgment, even though it was not denominated as such either by the movant or by the court.

Although defendant's motion was to dismiss pursuant to Rule 12(b)(6), Federal Rules of Civil Procedure, 28 U.S.C.A., for failure to state a claim upon which relief could be granted, the affidavits introduced by both parties require the motion to be treated as one for summary judgment. * * * The sole question is whether the complaint, together with the affidavits, 'show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.' Rule 56, Federal Rules of Civil Procedure. Hirsch v. Archer-Daniels-Midland Co., 258 F.2d 44, 45 (2d Cir. 1958).

Although the trial court's ruling took the form of an order of dismissal, in substance the trial judge determined that, in the daughters' claim against their father, there was no genuine issue of material fact, and found for the respondent as a matter of law. On this appeal we must, therefore, treat the case as though a formal motion for summary judgment had been made and granted. International Longshoremen's & Warehousemen's Union v. Kuntz, 334 F.2d 165 (9th Cir. 1964); Parmelee Transport. Co. v. Keeshin, 292 F.2d 794 (7th Cir. 1961); William J. Kelly Co. v. Reconstruction Finance Corp., 172 F.2d 865 (1st Cir. 1949). If, from the complete record, it appears that there is no genuine issue of material fact, and that the movant is entitled to judgment as a matter of law, a summary judgment is properly granted. Nozet v. District of Columbia, 112 U.S.App.D.C. 143, 300 F.2d 735 (1962); Hirsch v. Archer-Daniels-Midland Co., supra.

We are satisfied from a review of the record that, for purposes of this appeal, there exists no genuine issue of material fact. All of the pertinent material considered by the court upon the issue of parental immunity was placed before the court at the Invitation of all parties to the lawsuit. No error is assigned to the procedure followed by the court in its consideration of this material, which consisted of undenied pleading allegations, an affidavit, a deposition and uncontroverted statements contained in a memorandum submitted upon the motion. Nor do the parties before this court dispute the truth of any fact contained in the material upon which the trial judge based his ruling.

We digress. It has been suggested by Professor Orland in 3 Washington Practice (1960 ed.) 1966 Pocket Supplement, p. 117, that the case of Lightner v. Balow, 59 Wash.2d 856, 370 P.2d 982 (1962) has possibly abrogated the language in RPPP 12(b) and (c) requiring that 'all parties shall be given reasonable opportunity to present all material made pertinent to such a motion' and that the 10-day notice requirement of the summary judgment rule applies equally to those provisions. We deem Lightner as not controlling, because there the pertinent matters outside the pleadings were neither certified in the statement of facts nor otherwise identified by the trial court in its order of dismissal, as required by American Universal Ins. Co. v. Ranson, supra.

In the instant case, the parties have had reasonable and full opportunity to present material which might bear upon the issue, and which was made pertinent to such a motion by RPPP 56. Hence, the 'reasonable opportunity' requirements of RPPP 12(c) have been satisfied.

As viewed most favorably to appellants, the facts are that respondent and his wife had been divorced several years prior to the accident; that the divorce...