Killingsworth v. Keen , 89 Wash. 597 ( 1916 )

Bausman, J.

Keen, sued by his chauffeur for wrongful discharge outside of the state, sets up as a counterclaim that the chauffeur’s wife took another automobile of Keen’s out of his garage and used it “for the benefit of the marital community of the plaintiff and herself” for a period of four hours, during which time she damaged it. The counterclaim was to recover the value of its use as well as the cost of the repair. Plaintiff demurred to this as an attempt to set off tort against contract. Error is assigned on the lower court’s sustaining that demurrer.

As the answer does not show, and as it is not claimed in argument, that the wife’s taking the automobile was other than tortious, the husband and the community property are protected against liability in that respect by Rem. & Bal. Code, § 5929 (P. C. 95 § 13), 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.”

We have had occasion to remark, in a suit upon false representations by a wife, that we know of no statute making the community property liable for them. Strom v. Toklas, 78 Wash. 223, 138 Pac. 880.

Appellant argues that this is one of those torts which the injured party may waive in its tort aspect and sue upon as creating an implied promise to reimburse for value appropriated. Assuming, but not deciding, that, still it cannot be applied here. Keen might, indeed, be permitted to do this in an action between him and the wife, but here he is in litigation with a third person protected by statute. The wife’s act was a tort to begin with. It cannot be made contractual against the husband unless he too waives the form of action.

The bare and general allegation “for the benefit of the marital community” does not oblige us to discuss under this statute the situations in which a husband by acquiescence, authorization, acceptance of profits, or otherwise may be estopped to question the community’s or his own liability. The tort was presumptively not for the benefit of the community, and facts must be pleaded to disturb that presumption.

We have sustained conclusions against demurrer when facts, though defectively set out, accompanied those conclusions (Harris v. Halverson, 23 Wash. 779, 63 Pac. 549), but to sustain them utterly without facts is contrary to the whole theory of code pleading. Freeman v. Centralia, 67 Wash. 142, 120 Pac. 886, Ann. Cas. 1913 D. 786; Longfellow v. Seattle, 76 Wash. 509, 136 Pac. 855; Martin v. Olympia, 69 Wash. 28, 124 Pac. 214.

Judgment affirmed.

Morris, C. J., Mount, Holcomb, and Parker, JJ., concur.