Archibald v. Lincoln County

• Decision Date: 14 July 1908
• Citation: 96 P. 831,50 Wash. 55
• Parties: ARCHIBALD v. LINCOLN COUNTY.
• Court: Washington Supreme Court

96 P. 831

50 Wash. 55

ARCHIBALD v. LINCOLN COUNTY.

Supreme Court of Washington

July 14, 1908

Appeal from Superior Court, Lincoln County; W. T. Warren, Judge.

Action by Ella Archibald, as administratrix of the estate of John R Archibald, deceased, against Lincoln county, a municipal corporation, organized under the laws of the state of Washington. From a judgment for defendant, plaintiff appeals. Reversed and new trial ordered.

Mount J., dissenting.

A. J. Grant, J. T. Mulligan, and Martin & Wilson for appellant.

C. A Pettijohn, for respondent.

RUDKIN, J.

On the 27th day of January, 1905, John R. Archibald met his death from the overturning of his wagon, while driving along a narrow grade on one of the public highways of Lincoln county. He left surviving him a widow and three minor children. On the 10th day of April, 1906, the widow commenced an action against the county, in her own name and in her own right, to recover damages for the death of the husband, caused by the wrongful act of the county in failing to keep the public highway in a reasonably safe condition for public travel. Issue was joined on the complaint, and on the 21st day of December, 1906, the plaintiff submitted to a voluntary nonsuit. The judgment of nonsuit awarded costs against her in the sum of $264.05. Soon after the dismissal of this action a second action was commenced against the county for the same tort, in the name of the widow, in her own right and as administratrix of the estate of her deceased husband, and in the names of the minor children, by the widow as their general guardian. On the 26th day of February, 1907, the court, on motion of the defendant, entered an order staying further proceedings in the second action, as to the individual claim of widow, until the costs awarded against her in the former action were paid. A demurrer was thereafter interposed to the complaint of the plaintiffs other than the widow, and the demurrer was sustained. An amended complaint was then filed in behalf of the widow as administratrix of the estate of her deceased husband, omitting the names of the children and the name of the widow as guardian and in her own right. On the 9th day of April, 1907, a second order staying proceedings as to the individual claim of the widow was entered. Issue was thereupon joined on the last-amended complaint, and a trial was had before a jury. At the close of the plaintiff's case a nonsuit was granted, and from the judgment of nonsuit this appeal is prosecuted.

Before passing to the question of negligence on the part of the county, and contributory negligence on the part of the deceased, we will dispose of certain preliminary questions raised by the parties. The respondent contends that the amended complaint, on which the case was finally tried, failed to state a cause of action, because the action was prosecuted in the name of the personal representative for the benefit of the estate. While it is customary to prosecute such actions as this in the names of the widow and children, they may likewise be prosecuted in the name of the personal representative for the benefit of the widow and children. Copeland v. Seattle, 33 Wash. 415, 74 P. 582, 65 L. R. A. 333. The complaint in this case does not allege that the action is prosecuted for the benefit of the widow and children, but they are named in the complaint, and any recovery will inure to their benefit by operation of law. The complaint is therefore sufficient. The appellant contends that the court erred in staying proceedings as to the widow's claim until the costs of the former action instituted by her were paid. Courts doubtless possess inherent power to make such orders as the one complained of, in the exercise of a sound judicial discretion, and this much the appellant concludes. But, in this particular case, it appears from the showing made that the widow is absolutely without means; that she has three small children to support by her personal earnings; that she and the children have been ill, and are, in a large measure, dependent upon the charity of friends, and that for a time at least they have been inmates of the Lincoln county poor farm. Under such circumstances, if the widow has a meritorious claim against the county, we think the court abused the discretion vested in it by law, especially in view of the fact that the action must proceed, in any event, for the benefit of the children, and no additional costs will accrue against the county by reason of the inclusion of the widow's claim. The stay order should therefore be vacated.

This brings us to the question of negligence on the part of the county in failing to keep the highway in repair. The testimony shows that there was a narrow grade or fill, 8 or 10 rods in length, on...