deElche v. Jacobsen

622 P.2d 835, 95 Wash. 2d 237, 1980 Wash. LEXIS 1599

• Court: Washington Supreme Court
• Decided: December 31, 1980
• Docket: 46715-3
• Status: Published

Opinions

Stafford, J. —

The facts in this case are not disputed upon appeal. Mrs. deElche, her ex-husband and Mr. Jacobsen and his wife were socializing aboard the latter's 36-foot community-owned sailboat. Mrs. deElche decided to leave when the other three started drinking heavily. She went to bed aboard her ex-husband's boat which was tied up alongside the Jacobsens'. The others continued partying, which the trial court found to be community recreation. Later that night Mr. Jacobsen left his community-owned boat in an intoxicated state, went aboard the other vessel, and forcibly raped Mrs. deElche.

In the resulting civil case Mrs. deElche was awarded a judgment against Mr. Jacobsen separately. Since prior to the incident the Jacobsens had validly executed a community property agreement which converted all of their property to community property, Mr. Jacobsen had no separate property. The judgment was thus uncollectible since under then-existing law community property was deemed exempt from judgments arising from separate torts. Mrs. deElche appealed, asking us to overturn the rule which immunizes Mr. Jacobsen's community property and to follow the trend announced in Werker v. Knox, 197 Wash. 453, 456, 85 P.2d 1041 (1938):

[O]f 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.

We feel her position has merit.

The history of the exemption of community property from separate tort judgments is informative. Initially Brotton v. Langert, 1 Wash. 73, 78, 23 P. 688 (1890), held community owned real property was exempt from a judgment arising from a tort "not incurred for the benefit of the community." Stockand v. Bartlett, 4 Wash. 730, 31 P. 24 (1892), made it clear a separate debt creditor could not sell community real estate to reach the debtor's one-half interest, but Powell v. Pugh, 13 Wash. 577, 43 P. 879 (1896), did allow recovery from community personal property. Powell was overruled, however, by Schramm v. Steele, 97 Wash. 309, 166 P. 634 (1917), and from that time on all community property has been exempt from separate tort judgments.

The community "benefit" necessary to impose liability has been broadly interpreted.¹ Torts arising out of the management of community property may lead to community liability. See, e.g., Benson v. Bush, 3 Wn. App. 777, 477 P.2d 929 (1970). Purely personal recreation has been held to be a benefit to the community. See, e.g., Moffitt v. Krueger, 11 Wn.2d 658, 120 P.2d 512 (1941) (wife drinking with friends); see also King v. Williams, 188 Wash. 350, 62 (1936). Driving the family car yielded community liability, Birch v. Abercrombie, 74 Wash. 486, 133 P. 1020 (1913), particularly when it involved a community errand, buying "necessaries" such as a sweater, Werker v. Knox, supra. The combination of the management rule, benefit rule, family purpose doctrine, and imposition of liability when one of the spouses has been engaged in legitimate recreational activity has meant that, in practice, the community with few exceptions has been found liable for all torts except "purely personal altercations" and alienation of affection-type suits. Cross, Community Property Law in Washington, 49 Wash. L. Rev. 720, 836 (1974) (hereinafter Cross). Normally only a slight connection with the community has been required. But see Bergman v. State, 187 Wash. 622, 60 P.2d 699, 106 A.L.R. 1007 (1936), where the husband burned down a community-owned business in an attempt to collect insurance money and liability was found to be separate only.

Too often the determination of whether the tort is separate or community has been based on distinctions without a difference. Originally there was a distinction between torts committed in public versus private employment, the former producing only separate liability. See, e.g., Brotton v. Langert, supra. This distinction was abolished in Kilcup v. McManus, 64 Wn.2d 771, 394 P.2d 375 (1964), however. Now distinctions more often are based on the ownership of property involved in the tort, which seldom has anything to do with the motivation of the defendant or injury to the plaintiff. See, e.g., Newbury v. Remington, 184 Wash. 665, 52 P.2d 312 (1935), in which an assault was held to be separate although it arose out of driving the community automobile while returning from recreational activities. Defendant and plaintiff were driving in the same direction; when plaintiff attempted to pass, defendant repeatedly blocked him, all the while making various gestures. Eventually defendant forced plaintiff off the road, left his automobile, and struck plaintiff with his fist. This was held to be a separate tort based on the following rationale.

[T]he automobile was not used by respondent husband in striking and beating the appellant, nor was it in use at all by him at the time the assault and battery was inflicted by the respondent husband. He was away from the automobile at that time. The uncontested finding of fact is "that said defendant [A. D. Remington] alighted from the automobile and went back to plaintiff's automobile, etc.," striking and beating the appellant.

Newbury, at 668. Clearly, if defendant had struck plaintiff with the automobile, rather than with his fist, the community would have been held liable. The same result would have been reached had he stayed inside his auto rather than alighting. Yet, neither distinction is so great that they should ultimately determine whether plaintiff should or should not recover.

An analogous case decided the opposite way is Benson v. Bush, supra. There, defendant broke up a dog fight between his community-owned dog and that of his neighbors by spraying a chemical in the face of the neighbors' dog. Thereafter defendant became angered by the neighbor and, when the latter started to walk away, sprayed some chemical in his face also. This was held to be a community tort since defendant had not "launched upon an individual enterprise of his own which had no relationship to the community ..." Bush, at 780. See also McHenry v. Short, 29 Wn.2d 263, 186 P.2d 900 (1947) (community held liable for deadly assault arising from defense of community property); Blais v. Phillips, 7 Wn. App. 815, 502 P.2d 1245 (1972) (community held liable for assault occurring after a trial concerning community property).

On the other hand, the tortious act in Edmonds v. Ashe, 13 Wn. App. 690, 537 P.2d 812 (1975), was done expressly to benefit the community but only separate liability was found. There, the husband held some close friends hostage in an attempt to force a reconciliation with his wife. In a scuffle one of the friends was killed as was the husband. Although the Court of Appeals clearly had a difficult time distinguishing other cases, they felt they could not hold that the husband was acting in a way designed to benefit the community. There, however, there was no compelling reason to hold the wife's half interest in the community property liable. Since the husband had died, his half of the property was liable for any separate judgment and plaintiff was able to recover.

Other cases which found community liability upon tenuous contacts with the community, distinguished by Edmonds, include LaFramboise v. Schmidt, 42 Wn.2d 198, 254 P.2d 485 (1953), where the husband committed indecent liberties upon a child staying in their home, and Mof-fitt v. Krueger, supra, where a wife permitted a male friend with whom she had been drinking to drive the community automobile and his negligent driving caused an accident. In the cited cases the only way plaintiff could recover was a determination that the community was liable.

Clearly the current rule has yielded illogical, inconsistent and unjust results. When logically and equitably it was the tort-feasor alone who should bear the costs of his actions, the courts have been given only two choices — either impose one-half of the liability upon the property of the nontort-feasing spouse, even though that spouse had nothing to do with the tort, or force the innocent victim to bear all damages produced by an acknowledged tort-feasor if that tort-feasor, even though solvent, had only community property. The tort-feasor could hardly lose; absent the ownership of separate property he or she could be held liable to pay either only half the judgment or nothing at all.

The avowed purpose of this rule was to protect the community entity from the "misdeeds, improvidence or mismanagement" of the miscreant spouse. See Brotton v. Langert, supra at 80. Clearly the early cases were based on the "entity" theory of the community. They speak of the community property statutes " breath [ing] into legal existence a distinct and original creation . . . termed a 'community.'" Brotton, at 78. The property was said to be "not the property of either of the parties, but of the community . . ." Stockand v. Bartlett, supra at 731. As said in Schramm v. Steele, supra at 315, "it is the statutory entity — the community as such — which owns the property."

Later cases have made it clear, however, that the community does not exist as a separate and distinct juristic entity, and that the property of the community is under the ownership of the husband and wife. Household Fin. Corp. v. Smith, 70 Wn.2d 401, 403, 423 P.2d 621 (1967). As stated in Bortle v. Osborne, 155 Wash. 585, 589-90, 285 P. 425, 67 A.L.R. 1152 (1930):

By the community property law of this state, Rem. Comp. Stat., §§ 6890-6906, the legislature did not create an entity or a juristic person separate and apart from the spouses composing the marital community. The legislature did nothing more than classify as community property — designate the character of certain property as community and other property as separate — the property acquired after marriage by the spouses. We have, for convenience of expression, employed the terms "entity" and "legal entity" in referring to a partnership and to a marital community. However, we have never held that a partnership or a marital community is a legal person separate and apart from the members composing the partnership or community, or that either the partnership or the marital community has the status of a corporation. . . . The legislature, in defining community property, §§ 6890-6906, Rem. Stat., did not change the relationship of husband and wife to the status of a corporation or declare that the property acquired during marriage was owned by a legal personality distinct from the spouses composing the community. In the community property each of the spouses has an undivided one-half interest. . . . For the purpose of classification merely, and to keep it distinct in legal contemplation, separate from community rights and obligations, community property between husband and wife is sometimes, by a legal fiction, treated as a distinct legal entity constituting the center of certain defined rights and obligations. But strictly speaking it is not a legal entity." 31 C. J., p. 9.

See also United States v. Overman, 424 F.2d 1142 (9th Cir. 1970) (spouses own an equal, present, and vested undivided half interest in the couple's community property in Washington); In re Estate of Towey, 22 Wn.2d 212, 218, 155 (1945) ("vested” property right; "owned by both spouses equally"). See generally H. Marsh, Marital Property in Conflict of Laws 23-24 (1952).

The logical basis for the exemption of community property from separate tort liabilities (i.e., that the entity and not the spouses owned the property) has thus been eroded. Without the entity theory the question becomes why property owned by a person should be exempt from tort judgments. We can see no sufficient reason, given the harm which results therefrom.

Certainly statutory law does not support this exemption. Rather, it lends implicit support to the position we take here. The only statute dealing with recovery from a married tort-feasor, RCW 26.16.190, provides that the separate property of a spouse who is not the active tort-feasor is immune from recovery "except in cases where there would be joint responsibility if the marriage did not exist." Since this statute concerns separate property only, it does not necessarily immunize the nontort-feasor spouse's one-half interest in community property. It certainly cannot be read to immunize the tort-feasor's one-half interest in the community property.

Further, the historical background of community property does not support this exemption. Our system of community property evolved from the Spanish law, and although Spanish statutes are in no way binding upon us, they may at times aid in making difficult decisions. In re Estate of Salvini, 65 Wn.2d 442, 447, 397 P.2d 811 (1964). Spanish law allowed tort victims of married persons to recover from the wrongdoer's one-half interest in the community property. Novisma Recopilación, 1805 A.D., Book 10, Title 4, De los Bienes Ganaciales o Adquiridos en el Matrimonio, Law 10 quoted at 2 W. deFuniak, Community Property, 20 app. I (1943). See W. deFuniak & M. Vaughn, Community Property § 181 (2d ed. 1971).

As we see it, the best rule for dealing with tort recoveries from married persons is one which will impose liability on the community when a tort is done for the community's benefit, protect the property of the innocent spouse if the tort was separate, and at the same time allow recovery by the victim of a solvent tort-feasor. Our present concept of the law fulfills none of these goals. Innocent spouses' interests in community property Eire made liable upon the most tenuous considerations of "benefit" by the community in order to allow victims to recover; when this cannot be done the tort-feasor is often granted complete immunity. The system which we now establish balances these competing legsd and societal considerations. It is supported logically, historically, and by fairness.

The system which we now consider is a combination of the better features of those employed by other community property states. New Mexico has allowed recovery from the tort-feasor's half interest in community property for over 30 yeEirs with no apparent problems, McDonald v. Senn, 53 N.M. 198, 204 P.2d 990 (1949); N.M. Stat. Ann. § 40-3-10 (1978). California imposes liability first upon community property when the tortious act is for the benefit of the community, and first upon separate property if the tort was separate, but allows recovery from the other category of property once the property primarily liable is exhausted. Cal. Civ. Code § 5122 (West Supp. 1980). In Louisiana a separate or community obligation may be initially satisfied out of either the offending spouse's separate property or community property, but there is a statutory right of reimbursement. La. Civ. Code Ann., arts. 2345, 2364, 2365 (West Supp. 1980). See generally Lay, Tort Liability of Community Property, 13 Wayne L. Rev. 706, 720 (1967).

Torts which can properly be said to be done in the management of community business, or for the benefit of thé community, will remain community torts with the community Eind the tort-feasor separately liable. It may be that some torts which have in the past been classified as community (possibly as a result of "significant emotional factors or overtones" as suggested by Justice Finley's dissent in Smith v. Retallick, 48 Wn.2d 360, 365, 293 P.2d 745 (1956)) may now be properly considered separate.

For torts not in the management of community business or for its benefit, such as the tort in the present case, the separate property of the tort-feasor should be primarily liable. If there is insufficient separate property, however, then the tort-feasor's half interest in community personal property shall first become liable, RCW 6.04.040(1),² subject of course to the exemptions in RCW Title 6, Enforcement of Judgments. Since it is undisputed that the defendant in this case owns sufficient personal property held as community property to satisfy the liability in this case, we need decide no more.³

The question then arises how we characterize that which remains of what was formerly community property. The logical answer to this, especially with the prevalence of community property agreements, is that the property remains community. The nontort-feasor spouse will be protected however. If community property is used to satisfy a separate judgment, there will arise a right to reimbursement protected by an equitable lien, the same as in other cases where community property is used to improve a separate estate. See, e.g., In re Marriage of Harshman, 18 Wn. App. 116, 567 P.2d 667 (1977), where the community was given a right of reimbursement when community funds were used to pay the principal on a separate mortgage. See generally Cross, at 776-82. Due to this equitable lien, upon termination of the community relationship the nontortfeasor spouse will hold as separate property the same amount as he or she would have received if the separate tort judgment had not been satisfied out of community property.⁴ This equitable lien will also protect the community pro tanto from subsequent separate judgment creditors attempting to levy on the remaining half of the property.

Respondent suggests that we should follow the rule of stare decisis, and that if the rule exempting community property is to be changed it should be done by the legislature. However, as this court stated in Schramm v. Steele, 97 Wash. 309, 166 P. 634 (1917) at page 318 (which we now expressly overrule):

"Much as we respect the principle of stare decisis, we cannot yield to it when to yield is to overthrow principle and do injustice. Reluctant as we are to depart from former decisions we cannot yield to them, if, in yielding, we perpetuate error and sacrifice principle. We have thought it wisest to overrule outright rather than to evade, as is often done, by an attempt to distinguish where distinction there is none." Paul v. Davis, 100 Ind. 422, 428 [(1884)].

See also Freehe v. Freehe, 81 Wn.2d 183, 192, 500 P.2d 771 (1972) (abolishing interspousal tort immunity); Francis v. Francis, 89 Wn.2d 511, 516-17, 573 P.2d 369 (1978) (overruling cases concerning designation of nonspouse as beneficiary of one half of the proceeds of life insurance policy). Once again it is appropriate to echo the words quoted in Borst v. Borst, 41 Wn.2d 642, 657, 251 P.2d 149 (1952):

"Legislative action there could, of course, be, but we abdicate our own function, in a field peculiarly nonstatu-tory, when we refuse to reconsider an old and unsatisfactory court-made rule." [Woods v. Lancet, 303 N.Y. 349, 102 N.E.2d 691 (1951).]

Plaintiff is therefore entitled to recover from defendant's one-half interest in his community personal property. It is so ordered.

Rosellini, Dolliver, Hicks, and Williams, JJ., and Hamilton, J. Pro Tern., concur.

1 Some commentators appear to think the concept of "community benefit" has been stretched too far. See, e.g., W. DeFuniak & M. Vaughn, Community Property § 182 (2d ed. 1971).

2 RCW 6.04.040 reads in pertinent part:

"(1) If the execution be against the property of the judgment debtor it shall require the officer to satisfy the judgment, with interest, out of the personal property of the debtor, and if sufficient personal property cannot be found, out of his real property upon which the judgment is a lien."

3 It is not necessary and we do not decide here anything concerning separate debts. Distinction can be made between debts and torts, and it is not necessary that the rules regarding them be parallel. See generally Note, Tort Debts Versus Contract Debts: Liability of the Community Under California's New Community Property Laws, 26 Hastings L.J. 1575, 1577-80 (1975).

4 We must leave for another case the exact manner in which the community will be reimbursed by the wrongdoer since that issue is not before us here.