Sandgren v. West

Main, J. — This is an appeal from a judgment in a garnishment proceeding wherein the trial court refused to hold exempt from garnishment certain funds which admittedly belonged to the appellant Hazel West as her separate property; and also refused to set aside a default judgment against her. The facts will only be stated in so far as it appears to us that they are necessary to present the controlling question upon this appeal. Harry T. West and Hazel West were husband and wife, and were the owners of an automobile. In September, 1934, the respondent, John Sandgren, brought an action against the community to recover damages for serious and permanent injuries sustained as the result of being struck by an automobile, at the time driven by Mr. West. Paragraph one of the complaint was as follows: *496 “That Harry T. West and Hazel West are now, and at all times herein mentioned have been, husband and wife and as such constitute a marital community under the laws of the State of Washington, and are the owners of a certain Buick automobile as their community property, which said automobile was being used during all times herein mentioned by the said defendants, for and on behalf of the marital community composed of them, and for their express use and benefit, and for the benefit of said marital community.” The prayer of the complaint was for “a judgment against the defendants, and each of them, and against the community composed of said defendants in the sum of $10,000.00, . . . ” The defendants Mr. and Mrs. West did not appear in the action, and judgment was taken against them by default. In March, 1939, Mr. West was killed in an airplane accident, at which time he was employed by the Boeing Aircraft Company. That company carried an insurance policy covering its crews engaged in making test flights, which Mr. West was doing at the time of his death. Subsequent to his death, there was paid to Mrs. West, upon insurance policies in which she was named as beneficiary, the sum of two thousand dollars, and there was also paid to her the sum of five thousand dollars out of the proceeds of the policy taken out by the Boeing company. The funds from both sources were deposited in The National Bank of Commerce in Seattle. Thereafter, a writ of garnishment was served upon the bank, and the trial court apportioned the funds, giving to Mrs. West that portion which was derived from policies in which she was named as beneficiary, but denied the quashing of the writ in so far as that portion coming from the Boeing Aircraft Company was concerned. Mrs. West moved, in the garnishment proceeding, to quash the garnishment and to set aside the default judgment against her in her indi *497 vidual capacity, and, as above appears, she was denied this relief. The controlling question, as we view it, is whether the complaint states facts sufficient to justify the taking of a default judgment against Mrs. West in her individual capacity. This court is committed to the doctrine that the spouse who does not commit the tort cannot be held personally liable therefor. Hicks v. Baumgartner, 96 Wash. 71, 164 Pac. 743; Perren v. Press, 196 Wash. 14, 81 P. (2d) 867. Where an action is brought against a party, he has a right to presume that no other or different judgment will be taken against him by default than the facts alleged will warrant. In Anderson v. Burgoyne, 60 Wash. 511, 111 Pac. 777, it is said: “When a party is sued he has a right to presume that no other or different judgment will be taken against him by default than the facts alleged will warrant, and he may safely rely on that presumption until he has actual or constructive notice to the contrary.” It will be observed that the paragraph of the complaint, above quoted, recites that the “ . . . automobile was being used during all times herein mentioned by the said defendants, for and on behalf of the marital community composed of them, and for their express use and benefit, and for the benefit of said marital community.” If the complaint states a cause of action against Mrs. West' in her individual capacity, it is by reason of the statement therein “for their express use and benefit.” In the case of Killingsworth v. Keen, 89 Wash. 597, 154 Pac. 1096, the wife had committed the tort, and the question was whether a judgment could be taken against the husband upon an allegation in the com *498 plaint that the automobile involved was used “ ‘for the benefit of the marital community of the plaintiff and herself.’ ” In that case, it was held that the bare and general allegation “ ‘for the benefit of the marital community’ ” was insufficient as against a demurrer to overcome the presumption of nonliability of the community, as no sustaining facts were pleaded. It was there said: “The tort was presumptively not for the benefit of the community, and facts must be pleaded to disturb that presumption.” We see no difference, in legal effect, in an allegation “for the benefit of the marital community” and one “for their express use and benefit.” In support of the last allegation, no sustaining facts are pleaded, as the law required. The default judgment against Mrs. West was void because no facts were alleged in the complaint which would permit a judgment against her by default, in her individual capacity. In the case of State ex rel. First Nat. Bank v. Hastings, 120 Wash. 283, 207 Pac. 23, after reciting that it was elementary law that a default judgment could not award any relief beyond that which the facts alleged in the complaint showed the plaintiff was legally entitled to, it is said: “This also means,. of course, that if a complaint wholly fails to state facts legally entitling the plaintiff to any recovery, or states facts affirmatively showing that the plaintiff has no right of recovery, as those complaints did, a default judgment rendered thereon is void, just as such a default judgment would be void in so far as it awarded relief beyond that which the allegations of the complaint showed the plaintiff legally entitled to.” In the case of Roche v. McDonald, 136 Wash. 322, 239 Pac. 1015, 44 A. L. R. 444, after reciting, as in the *499 previous case, that it has become the settled law of this state that a judgment rendered by default rests solely upon the allegations of the complaint, it was said that a judgment rendered by default upon such complaint “ ... is void, or in any event voidable, and that such a judgment may be successfully assailed, collaterally or otherwise, whenever it is sought to be made the foundation of a claim of right.” The statement in this quotation, “in any event voidable,” was undoubtedly an inadvertence, in view of what immediately follows it, because, if the judgment was only voidable, it could not be attacked collaterally. It is true that the prayer of the complaint in the present case asked for a judgment, not only against the community, but against the defendants individually. The prayer, however, cannot enlarge the scope of the pleading and is no part of the complaint. Cascade Lumber Co. v. Hargis, 167 Wash. 409, 9 P. (2d) 366; Acme Finance Co. v. Monohon, 188 Wash. 392, 62 P. (2d) 1089. We have not overlooked the rule that, where the complaint is ambiguous, the prayer may be considered in aid of the interpretation thereof. Aid v. Bowerman, 132 Wash. 319, 232 Pac. 297. The complaint in the case now before us is not ambiguous, but, in legal .effect, it is not sufficient to justify the default judgment against Mrs. West. A prayer cannot change the legal effect of what is alleged in the complaint. Hart v. Martin, 299 S. W. (Tex. Civ. App.) 520. The appellant was entitled to the relief which she sought. The judgment entered will be reversed and the cause remanded, with direction to the superior court to quash the writ of garnishment and set aside the default judgment against the appellant. Beals, Millard, Blake, and Driver, JJ., concur.