76 Wash. 504 | Wash. | 1913
Lead Opinion
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 St. Cable R. Co., 3 Wash. 592, 28 Pac. 1021, 28 Am. St. 72, 16 L. R. A. 808; Davis v. Seattle, 37 Wash. 223, 79 Pac. 784; Matthews v. Spokane, 50 Wash. 107, 96 Pac. 827; Maynard v. Jefferson County, 54 Wash. 351, 103 Pac. 418; Magnuson v. O’Dea, 75 Wash. 574, 135 Pac. 640.
Rem. & Bal. Code, § 181 (P. C. 81 § 11), 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
It is suggested by respondent that, as the community had been dissolved by the divorce decree prior to the commence
The respondent could have had this cause of action awarded to her in the divorce decree had she submitted it to the court, but not having done so, its character is not disturbed by the decree. The community having been dissolved, there can now, of course, be no community property strictly speaking; but such property as was community property prior to the decree and not disposed of thereby would become common property, in which husband and wife would retain all the interest vested in them prior to the decree. Ambrose v. Moore, 46 Wash. 463, 90 Pac. 588, 11 L. R. A. (N. S.) 103; Barkley v. American Sav. Bank & Trust Co., 61 Wash. 415, 112 Pac. 495. So that, whether the cause of action and the damages recoverable be now regarded as community or common property, the necessity for joining the husband in the action would be the same.
For these reasons, we hold the complaint cannot sustain the judgment, and the judgment is reversed.
Crow, C. J., Mount, and Parker, JJ., concur.
Dissenting Opinion
(dissenting) — The wrong here committed, if any, was an “unjust usurpation of the wife’s natural