Cooper v. Runnels
| Citation | 48 Wn.2d 108,291 P.2d 657 |
| Decision Date | 22 December 1955 |
| Docket Number | No. 33338,33338 |
| Parties | , 57 A.L.R.2d 597 F. M. COOPER, Appellant, v. L. J. RUNNELS and Isabelle Runnels, husband and wife, Ray L. Zimmerman and Mary C. Zimmerman, husband and wife, and the communities of them composed, doing business as Runnels Paint Company, Respondents. |
| Court | United States State Supreme Court of Washington |
D. V. Morthland, Norman R. Nashem, Jr., Robert A. Felthous, Yakima, for appellant.
Wettrick, Flood, O'Brien, Toulouse & Lirhus, Seattle, for respondents.
Can a tort claim for damage to property be assigned?
Plaintiff's complaint alleges:
'2. That between the 10th and 16th days of March, 1954, the Defendants were spray painting a large water tower and tank of the City of Toppenish, Washington, said defendant Company having during all of said times exclusive control over all of said spray painting operations. That said spray painting operations were so negligently and carelessly conducted as to deposit paint on the hereinafter mentioned vehicle or vehicles.
Plaintiff's second through the ninety-second causes of action allege similar damage to one hundred thirty-seven automobiles owned by ninety-one different individuals. The alleged claims, totaling $3,978.55, were assigned to plaintiff.
The trial court sustained defendants' demurrer to all of plaintiff's causes of action except the first, on the ground that the alleged claims are nonassignable. Plaintiff appeals from a judgment dismissing all but his first cause of action.
We have concluded that a tort claim for damage to property is assignable under the law of this state. Therefore, it was error to sustain the demurrer and to dismiss the causes of action to which the demurrer was directed.
Our conclusion is based upon the following analysis:
The test of assignability is: Does the cause of action survive to the personal representative of the assignor? If it does, the cause of action is assignable. Slauson v. Schwabacher Bros. & Co., 1892, 4 Wash. 783, 31 P. 329.
When property is damaged by a tort-feasor, and either or both the property owner and the tort-feasor die, three closely related questions may arise. First: Can the personal representative of the property owner maintain an action against the tort-feasor? Second: Can the property owner maintain an action against the personal representative of the tort-feasor? Third: Can the personal representative of the property owner maintain an action against the personal representative of the tort-feasor?
The immediate problem before us is a narrow one. It is confined to the first situation, for, if the cause of action can be maintained against the tort-feasor by the personal representatives of the property owners, then their assignments to the plaintiff are valid.
At the early common law, a cause of action did not survive to the personal representative of the owner of damaged property; hence, it was not assignable by him during his lifetime.
At least two reasons have been advanced in support of this conclusion. In the Anglo-Saxon period, and for at least the first two and a half centuries after the Conquest, there was no such thing as a general representative of a deceased person. 3 Holdsworth's History of English Law (6th ed. Rev.) 572. Later, when executors were recognized, both the extent of their right to sue and the extent of their liability were affected by the maxim, 'A personal action dies with the person.' (Actio personalis moritur cum persona.)
Professor Goudy said:
'Though this is one of the most familiar maxims of English law, the veil of obscurity covers not only its origin but its true import and significance.' Goudy, Essays in Legal History (1913) 216-227.
The best conjecture on the subject is that it was a result of the development of the tort remedy as a adjunct of criminal punishment. The principle developed at a time when many acts of human conduct were held to be felonies for which the wrongdoer forfeited all of his property and frequently his head. Death of the wrongdoer ended criminal responsibility; and, his property having been forfeited by reason of his felonious conduct, the establishment of tort liability became a useless gesture. No distinction was made between death of the owner of the damaged property and death of the wrongdoer, although the reason for denying survival of the action to the plaintiff's successors against a still living defendant is not so strong. Whatever the explanation, the rule became settled.
Gradually, the power of the executor was extended. From the reign of Edward I, the executor could sue in debt or detinue, the first action based upon contractual or quasi-contractual rights; the second, upon the theory of unjust enrichment. Detinue could also be maintained against the executor of a deceased wrongdoer on the theory that an obligation to restore property did not die with the person.
In 1330, a statute was passed allowing the executor to sue for trespasses done to the goods and chattels of his testator. It was known as the statute 'de bonis asportatis in vita testatoris' and read as follows:
'Item, Whereas in Times past Executors have not had Actions for a Trespass done to their Testators, as of the Goods and Chattels of the same Testators carried away in their Life, and so such Trespasses have hitherto remained unpunished; (2) it is enacted, That the Executors in such Cases shall have an Action against the Trespassers, and recover their Damages in like Manner, as they, whose Executors they be, should have had if they were in Life.' 4 Edw. III, chapter 7 (1330).
Of this statute, Holdsworth said that it
'* * * eventually gave him [the executor] the right to bring either detinue, trespass, trespass on the case, or trover in appropriate cases in respect of different wrongs to these goods and chattels.' 3 Holdsworth's History of English Law (6th ed. Rev.) 584.
In Wilson v. Knubley, 7 East 128, 103 Eng.Rep. 49 (1806) Lord Ellenborough C. J. discussed 4 Edward III, chapter 7. He said:
'It speaks of a trespass as of a wrong generally; and it enacts, that the executors shall have an action, not saying what form of action, against the trespassers, meaning thereby wrong-doers.' (Italics ours.) (p. 52)
The common law of England, including the English statutes in force at the date of the Declaration of Independence, continues to be the law of this state except as it is inconsistent with state and Federal constitutions, or incompatible with the institutions and society of this state, or modified by statute. RCW 1.12.030; RCW 4.04.010; In re Hudson, 1942, 13 Wash.2d 673, 684, 126 P.2d 765 and cases cited.
In order to determine whether the common law has been modified in this jurisdiction, we turn to our statutes.
RCW 4.20.040 provides:
Defendants in the instant case argue that this statute, passed in 1869, Laws of 1869, p. 165, § 659, limits survival of causes of action to those whose survival had already been defined by previous statutes of this state.
We cannot agree. On several occasions, we have pointed out that this statute (now designated as RCW 4.20.040) does not attempt to announce what causes of action should survive, but refers only to those causes of action which already survive. Slauson v. Schwabacher Bros. & Co., 1892, 4 Wash. 783, 31 P. 329; Jones v. Miller, 1904, 35 Wash. 499, 77 P. 811; Rinker v. Hurd, 1912, 69 Wash 257, 124 P. 687; State ex rel. Baeder v. Blake, 1919, 107 Wash. 294, 181 P. 685.
Consideration of these decisions leads us to conclude that those causes of action which survive at common law survive in this jurisdiction, unless prohibited by statute. Warner v. Benham, 1923, 126 Wash. 393, 218 P. 260, 34 A.L.R. 1358. Our conclusion is buttressed by the fact that this court has already recognized the statute of 4 Edward III, chapter 7, quoted supra, as part of the common law of this state. Boyd v. Sibold, 1941, 7 Wash.2d 279, 285, 109 P.2d 535; see State ex rel. Baeder v. Blake, supra [107 Wash. 294, 181 P. 686], wherein the statute was recognized 'for the purposes of this opinion.'
RCW 11.48.100 provides:
(Bracketed words omitted and italicized words inserted by codifiers; cf. Laws of 1917, chapter 156, § 149; Code of 1881, § 1530.)
RCW 11.48.100 was first passed in 1854. Laws of 1854, p. 291, § 143; Code of 1881, § 1530. It was re-enacted as part of the probate code in 1917, Laws of 1917, chapter 156, § 149. The similarity of our present statute to that of 4 Edward III, chapter 7 (1330) is apparent.
In several of our former decisions, we have alluded to the precise problem we are now considering--the right to assign a cause of action for damage to property, or the parallel question of whether a right of action for damage to property survives to the...
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