Compton v. Evans

• Decision Date: 11 August 1939
• Docket Number: 27421.
• Citation: 93 P.2d 341,200 Wash. 125
• Parties: COMPTON v. EVANS et al.
• Court: Washington Supreme Court

93 P.2d 341

200 Wash. 125

COMPTON v. EVANS et al.

No. 27421.

Supreme Court of Washington

August 11, 1939

Department 1.

Action by Alta M. Compton against James H. Evans, as executor of the will of Mrs. Blanche Evans, and as surviving member of the community, for personal injuries received when an automobile in which the plaintiff was riding and which was being driven by Mrs. Blanche Evans left the highway and overturned. Subsequent to the commencement of the suit, James H. Evans died, and Frances Elizabeth Layer and Richard Bartelson Evans, as executrix and executor of the estate of James H Evans, deceased, and Richard Bartelson Evans, as administrator with the will annexed de bonis non of the estate of Mrs. Blanche Evans, deceased, were substituted as parties defendant. From the judgment, the plaintiff appeals.

Affirmed.

Appeal from Superior Court, Spokane County; Fred H. Witt, judge.

J. W Greenough and Graves, Kizer & Graves, all of Spokane, for appellant.

R. E Lowe and Clare E. Turner, both of Spokane, for respondents.

ROBINSON Justice.

Plaintiff brought this action to recover damages for personal injuries received when an automobile in which she was riding and which was being driven by Mrs. Blanche Evans left the highway and overturned. Mrs. Evans was killed in the accident. The suit was brought against her surviving busband, James H. Evans, as executor of her will and as surviving member of the community. Subsequent to the commencement of the suit, Mr Evans died, and his executors and an administrator de bonis non with the will annexed of the estate of Mrs. Evans were substituted as parties defendant. The complaint alleged that plaintiff was employed as a servant and housekeeper by the Evans family, and was entitled to transportation in the family automobile when the family shifted its place of residence, and that, while the family was traveling from a summer home maintained at Lake Christina, British Columbia, to the home maintained at Evans, Washington, Mrs. Evans drove the car at an excessive speed, causing it to leave the highway and overturn. Plaintiff alleges that she waives the tort and elects to sue on the contract. A demurrer to the complaint, based on the ground that the cause of action did not survive the death of Mr. and Mrs. Evans, was sustained by the court, and plaintiff appeals.

Appellant concedes that, at common law, a cause of action for injuries to the person, not based on contract and not affecting property of any kind, did not survive the death of the wrongdoer. Hambly v. Trott, 1 Cowp. 371, 2 Eng.Rul.Cas. 1. It is said by Sir Frederick Pollock, an eminent English writer on the law of torts, that the maxim, actio personalis moritur cum persona, is one of some antiquity, but its origin is obscure and post-classical. Pollock, The Law of Torts, 11th Ed., p. 61. The same writer, in criticizing the rule, says: 'It is better that the residuary legatee should be to some extent cut short than that the person wronged should be deprived of redress.' Id., p. 62.

The rule has been severely criticized in a comparatively recent issue of The Harvard Law Review, vol. 48, p. 1008, and in the case of Harris v. Nashville Trust Co., 128 Tenn. 573, 162 S.W. 584, 586, 49 L.R.A.,N.S., 897, Ann.Cas.1914C, 885, the court, by way of introduction to a number of severely critical quotations from text writers and judicial opinions, said: 'The maxim, 'Actio personalis moritur cum persona,' is by no means a favorite with the courts. It has no champion at this date [1914], nor has any judge or law writer risen to defend it for 200 years past.'

It has recently been held by the supreme court of Florida, in Waller v. First Savings & Trust Co., 103 Fla. 1025, 138 So. 780, that the rule, at least in so far as it related to rights of action against defendants, did not become a part of the common law of Florida because contrary to the customs, institutions, and general policy of the state, and the rule, as it affects the asserted rights of deceased plaintiffs, has been repudiated in Nebraska in Wilfong v. Omaha & Council Bluffs St. R. Co., 129 Neb. 600, 262 N.W. 537, for, substantially, the same reasons.

It was, perhaps, open to this court, in its earliest cases touching the matter, to refuse to follow the ancient rule in whole or in part, upon the ground that it was 'incompatible with the institutions and conditions of society in this state.' Rem.Rev.Stat. § 143. It held, however, that the rule, as it existed in England at the date of the Declaration of Independence, becmae a part of the common law of the state. Our legislature has from time to time passed statutes dealing with certain phases of the matter; and if further changes are necessary and desirable, they must be made by that department of the state government. The existing law in this jurisdiction is stated in the following excerpt from the opinion in Jonas v. Taylor, 166 Wash. 302, 6 P.2d 615, 616: 'The rule is that a pending action for unliquidated damages founded on the tort of a defendant dies with the death of the defendant. State ex rel. Baeder v. Blake, 107 Wash. 294, 181 P. 685; Bortle v. Osborne, 155 Wash. 585, 285 P. 425, 67 A.L.R. 1152. Not simply that the action cannot be prosecuted against the heirs and legal representatives of the deceased, but that action dies.'

The trial court held that the instant action is founded on tort. The appellant contends that it is founded upon contract, and that it is therefore maintainable under section 148, chapter 156, p. 685, Laws of 1917, Rem.Rev.Stat. § 1518, which section reads as follows: 'Actions for the recovery of any property or for the possession thereof, and all actions founded upon contracts, may be maintained by and against executors and administrators in all cases in which the same might have been maintained by and against their respective testators or intestates.' (Italics ours.)

As an approach to the solution of the matter, we first examine the allegations of the complaint. Paragraph 1 alleges that the plaintiff entered into an oral contract of employment with the marital community, consisting of James H. Evans and his wife. Paragraph 2 alleges, in substance, that the plaintiff was to act as cook, housekeeper, and general household servant; such service to be rendered at the Evans' community residence in Stevens county, and at their summer home at Lake Christina, in British Columbia. Paragraph 3 is as follows: 'By the terms of said contract the community promised to pay to the plaintiff the sum of $30 per month during the term of her employment. And the community further agreed and was obligated to perform and it was understood by both parties that it would perform the following terms, said terms being integral parts of the contract between the community and plaintiff either by express agreement or by necessary and natural implication, and said terms were fully recognized, performed and relied and acted upon as an integral part of said contract by both parties thereto at all times from its creation until its breach described in paragraph 5 and following paragraphs hereof; to furnish to plaintiff board and room at Evans, Washington, or at Lake Christina, B. C., or at either or both of said places or at any other place where plaintiff's contract of employment required her to be; to furnish to plaintiff safe and adequate transportation from and between points where she was required by the community to render her services under the terms of her contract with it, and particularly from and between the community's homes at Evans, Washington, and Lake Christina, B. C.; and to exercise due and reasonable skill and care in the provision of board, room, and transportation as above stated during each and all of the times and occasions plaintiff should be engaged in the discharge of her duties under her contract with the community.'

[200 Wash. 130] Paragraph 4 alleges that plaintiff fully performed and executed the contract until it was breached, as described in succeeding paragraphs. Paragraph 5 alleges, in substance, that the community breached the contract by not exercising due and reasonable skill in transporting her from the summer residence to the Stevens county residence, but that Mrs. Evans, in transporting her between the two places.

'* * * negligently, carelessly, and recklessly drove and controlled said car so that it left the road, plunged over an embankment and injured plaintiff as stated in paragraph 7 hereof. The acts and omissions of the community and of Mrs. Evans as the agent of the community which proximately caused the accident above described and plaintiff's injuries were:

'(a) The selection by the community of a driver known to the community to be or who the community reasonably should have known to be incompetent and unqualified to operate the automobile used by the community to transport plaintiff as the community agreed in its contract with plaintiff.

'(b) The operation of said automobile by the community's agent at an unreasonable, excessive, dangerous and unlawful speed while transporting plaintiff.

'(c) The failure and neglect of the community's agent operating the automobile to keep it under a reasonable degree of control while transporting plaintiff.

'(d) The failure and neglect of the community's agent operating the automobile to maintain a reasonable look to observe road conditions ahead.

'(e) The failure and neglect of the community's agent operating the automobile to drive it at a sufficiently slow speed when approaching and traveling on a descending grade to enable the agent to operate the automobile with a reasonable degree of safety for plaintiff occupying it.

'(f) The failure and neglect of the community's agent operating the automobile to drive

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