Werker v. Knox

• Decision Date: 27 December 1938
• Docket Number: 27239.
• Parties: WERKER v. KNOX et ux.
• Court: Washington Supreme Court

85 P.2d 1041

197 Wash. 453

WERKER v. KNOX et ux.

No. 27239.

Supreme Court of Washington

December 27, 1938

Department 1.

Action by Non Etta Werker, a minor, by John Werker, guardian ad litem, against Harry S. Knox and wife to recover for injuries sustained when the minor was struck by an automobile. Judgment for plaintiff against the wife individually and against the husband and wife as a marital community, and defendants appeal.

Affirmed.

Appeal from Superior Court, Grays Harbor County; William E Campbell, judge.

W. H. Abel, of Montesano, for appellants.

L. B Donley, of Aberdeen, for respondent.

ROBINSON Justice.

The judgment appealed from in this case runs against Gertrude Knox, individually, and Harry S. knox and Gertrude Knox, his wife, as a marital community. The matter is brought here upon a bill of exceptions, and the only question presented is whether, under the circumstances shown, the marital community is liable for the negligent tort of the wife.

The facts are simple, and not in dispute. The bill of exceptions prepared by the appellants and duly certified by the trial court, reads, in part, as follows:

'The testimony and evidence for plaintiff sufficiently proved, and established, the following facts:

'1. Non Etta Werker, plaintiff, is a minor, age fourteen years; John Werker is her father and was duly appointed, and qualified, and is acting as guardian ad litem under proper appointment by this court.

'2. June 2nd, 1936, Gertrude Knox, defendant herein, parked a nash automobile on 'G' Street between 4th and 5th Streets in the City of Aberdeen, Grays Harbor County, Washington, in such position, and condition, that said automobile without the intervention of any human agency, and in the absence of the said Gertrude Knox, broke loose, ran backwards down 'G' Street, ran across the westerly side of 'G' Street into a vacant lot, and there collided with, and ran over, Non Etta Werker, plaintiff, whereby she sustained personal injuries as alleged in the complaint, all without negligence on her part, to her damage in a substantial amount, later fixed by the verdict.

'The foregoing facts were substantially proved, and in addition the only testimony material to the case, and material on appeal, is the testimony of Gertrude Knox. She testified, and no other witness testified, as to the circumstances under which she procured and used the automobile which broke loose as aforesaid and the purposes for which she used said automobile. Her testimony at the trial was: * * *'

Here follow eight pages of testimony the substance of which, in so far as it is pertinent to the question under examination, is: Mr. and Mrs. Knox, at the time of the accident, had been married about eighteen years, and, for about two and one-half years prior to the accident, had lived in Washington, having moved here from the state of Illinois. Mr. Knox had brought from Illinois a Nash automobile which he permitted his wife to drive at will. On the day of the accident, Mrs. Knox had an appointment to call at the Highland Apartments to try on a sweater which a resident of the apartments was knitting for her. On her way, she stopped at the Rundell Motor Company to have the car greased and the oil changed. The proprietor offered her another Nash car, belonging to the motor company, for her use while her husband's car was being serviced. She accepted it and drove it to the vicinity of the Highland Apartments, and, while it was parked outside, the car broke loose, and caused the injury complained of. A portion of her testimony is so relevant to the question raised on appeal that we quote it. While being examined as an adverse witness, Mrs. Knox testified:

'Q. Do you and Mr. Knox keep your departments very carefully separated? A. There is something that is separate; my own allowance is separated.

'Q. The rest of your property, of course, is not completely separated? A. No. I have no property. * * *

'Q. You went to the Highland Apartments to call on someone? A. I went on business, my own business.

'Q. Your own business? A. Yes.

'Q. Called on someone inside? A. Yes.

'Q. By the way, what was your business? A. My business was, she was making a sweater for me and I went to have it tried on. * * *'

Later, on examination by her own attorney, Mrs. Knox testified as follows:

'Q. What was your purpose in visiting her? A. To try on this sweater.

'Q. Had you hired her to knit the sweater for you? A. Yes.

'Q. What was your arrangement as to paying her? A. I was going to pay her out of my own money.

'Q. You were going to pay her out of your own money? A. When it was finished.'

Counsel for the parties are agreed that the exact question presented by the appeal has never been decided, at least in this jurisdiction. It is contended on behalf of the community that its non-liability is determined by Rem.Rev.Stat. § 6904, which is as follows: 'For all injuries committed by a married woman, damages may be recovered from her alone, and her husband shall not be responsible therefor, except in case where he would be jointly responsible with her if the marriage did not exist.'

But we think it clear, upon a mere reading of the section, that it merely establishes the non-liability of the husband as an individual. We are the more inclined to so construe it because of recent years the trend of the law has not been toward relieving the community from liability for the torts of its individual members, but has been quite definitely in the direction of finding ways and means of imposing such liabilities upon the community.

The advent of the automobile, as a common instrument of transportation, with its consequent train of negligent injuries and deaths, raised a number of legal problems, and, among them, the matter of finding adequate remedies. These heavy and fast-traveling vehicles are frequently driven by minors against whom a judgment cannot, ordinarily, be collected. In the community property states, it happened, more often than not, that a married driver had no separate property out of which a recovery could be realized. How were persons injured, or the personal representatives of persons killed, by the negligence of minor drivers, or of married drivers who had no separate property, to be afforded effective recovery? As a partial solution to the problem, the family car doctrine was originated.

This state was among the first to adopt and apply the family car doctrine. This was done in 1913 in the case of Birch v. Abercrombie, 71 Wash. 486, 133 P. 1020, 50 L.R.A.,N.S., 59. It is said, in the opinion in Allison v. Bartelt, 121 Wash. 418, 209 P. 863, rendered in 1922, that, at that time, about fourteen or fifteen states had adopted the doctrine, and about an equal number had rejected it. What the balance of authority is at the time, we have not inquired. This court has never departed from it, but has applied it repeatedly in approving judgments against the community when the car which caused the injury was driven by the son or daughter of the family, or by either member of the community. There is nothing mysterious or revolutionary about the doctrine. The result is arrived at by applying to the facts principles of agency which have long been well-settled and established. Hart v. Hogan, 173 Wash. 598, 24 P.2d 99.

Although the family car doctrine is frequently invoked in cases holding the community liable for a tort committed by the husband, that result would generally follow from the mere fact that the husband is, by statute, the agent of the community. Rem.Rev.Stat. § 6892. But, in such a case, there can be no recovery against the community unless the husband was engaged in doing something which could be said to be beneficial to his principal, the marital community. Bergman v. State, 187 Wash. 622, 60 P.2d 699, 106 A.L.R. 1007. It is in those cases where the husband has caused a negligent injury through the use of an automobile that the tendency of the courts to go to an extreme limit to fix liability upon the community has been most clearly exhibited. For example, it has been held that a husband, driving a car for his own pleasure, is doing so for a purpose beneficial to the community; Wicklund v. Allraum, 122 Wash. 546, 211 P. 760; and so also, of a husband who was driving a car on a hunting trip; Lloyd v. Mowery, 158 Wash. 341, 290 P. 710; and, in each case, judgment was entered against the community.

In King v. Williams, 188 Wash. 350, 62 P.2d 710, where a husband was found guilty of a negligent...