Atrops v. Costello

• Decision Date: 26 January 1894
• Citation: 35 P. 620,8 Wash. 149
• Parties: ATROPS v. COSTELLO ET AL.
• Court: Washington Supreme Court

35 P. 620

8 Wash. 149

ATROPS v. COSTELLO ET AL.

Supreme Court of Washington

January 26, 1894

Appeal from superior court, Spokane county; James Z. Moore, Judge.

Action by Herman Atrops against Peter Costello and the city of Spokane for damages for causing the death of the plaintiff's minor child. From a judgment for plaintiff and an order denying a new trial, defendants appeal. Reversed.

F. T Post, City Atty., W. W. D. Turner, and Forster & Wakefield for respondent.

DUNBAR C.J.

This action was brought under section 139 of the Code of Procedure, wherein a father, or, in case of the death or desertion of his family, the mother, is authorized to maintain an action as plaintiff for the injury or death of a child, and a guardian for the injury or death of his ward. The action was brought by the father of Maggie Atrops, who was killed by a blast alleged to have been negligently and carelessly let off by the appellants. It is contended by the respondent that the plaintiff in this action can recover punitive or exemplary damages, and it is desired by the respective counsel in this case that the court pass upon that question. The contention of the respondent is that section 139 is to be construed with reference to section 138. Section 139 corresponds with section 9 of the Laws of 1873 and section 138 corresponds in part with section 8 of the Laws of 1873 which provides that "the widow, or widow and her children, or child or children if no widow, of a man killed in a duel, shall have a right of action against the person killing him, and against the seconds, and all aiders and abettors, and shall recover such a sum as to the jury shall seem reasonable." The contention here is that section 9, standing alone, does not prescribe any rule or measure of damage, nor does it provide under what circumstances suit may be maintained for the injury or death of the child, nor against whom said action may be maintained and that, without it is construed with, and as a part of, the chapter with which it is enacted, it is absolutely meaningless; and that, therefore, the measure of damages provided for in section 8 of said chapter-that is, "such a sum as to the jury shall seem reasonable"-was intended by the legislature to apply also to section 9. After the enactment of these sections in 1873, the following amendments were made in 1875, to wit: Section 4 of the Laws of 1875 provides as follows: "The following additional section shall follow section eight [referring to section 8 of the Laws of 1873] as a new section in the chapter of said act to which this is amendatory, relating to parties to actions, that is to say: Sec. -. When the death of a person is caused by the wrongful act or neglect of another, his heirs or personal representatives may maintain an action for damages against the person causing the death; or when the death of a person is caused by an injury received in falling through an opening, or defective place in any sidewalk, street, alley, square, or wharf, his heirs or personal representatives may maintain an action for damages against the person whose duty it was, at the time of the injury, to have kept in repair such sidewalk, or other place. In every such action the jury may give such damages, pecuniary or exemplary, as, under all the circumstances of the case, may to them seem just." This section, with the amendment passed in 1875, appeared in the Code of 1881 as section 8, leaving out the words, "shall recover such a sum as to the jury shall seem reasonable," which words were not repealed by the enactment of 1875, without it may be considered that they were repealed by implication by the enactment of the provision in the same section that, "in every such action the jury may give such damages, pecuniary or exemplary, as, under all the circumstances of the case, may to them seem just;" this provision being somewhat inconsistent with the former provision at the end of section 8 of the Laws of 1873, that a person should "recover such a sum as to the jury shall seem reasonable." But, however that may be, construing the sections with reference to the statute of 1873 before it was amended, it seems to us that the provisions of section 8 were not intended to apply to section 9, which provides for altogether a different character of action, section 8 providing for a specific action where a man was killed in a duel, and section 9 providing for the maintenance of an action for injury or death of a child generally. Therefore we think that under the decision of ...