Crevelli v. Chicago, M. & St. P. Ry. Co.

• Decision Date: 22 August 1917
• Docket Number: 13838.
• Citation: 167 P. 66,98 Wash. 42
• Court: Washington Supreme Court
• Parties: CREVELLI v. CHICAGO, M. & ST. P. RY. CO.

167 P. 66

98 Wash. 42

CREVELLI v. CHICAGO, M. & ST. P. RY. CO.

No. 13838.

Supreme Court of Washington

August 22, 1917

Department 1. Appeal from Superior Court, Spokane County; Bruce Blake Judge.

Action by Guiseppe Crevelli against the Chicago, Milwaukee & St Paul Railway Company. From a judgment for plaintiff defendant appeals. Reversed.

Geo. W Korte, of Seattle, and Cullen, Lee & Matthews, of Spokane, for appellant.

Zent & Powell and Jos. A. Albi, all of Spokane, for respondent.

CHADWICK J.

Luigi Crevelli, a youth of about 16 years, suffered an internal injury while helping three others lift a hand car from the tracks of appellant's railway. The boy had been put to work by appellant upon the representation of his father, one of the same section crew, that he was over the age of 17 years. Soon after the accident Luigi was attacked by pains in the abdomen. He was later taken to a hospital, where his trouble was diagnosed as chronic appendicitis. An operation for appendicitis, and what is surgically known as 'Lane's kink,' was performed. After lingering for some weeks, he died, from infection appellant says, from an injury to the meso-colon, caused by lifting, the respondent contends; the latter condition being revealed by an examination of the exhumed body some time after the death of Luigi.

This action was brought under the federal Employers' Liability Act of April 22, 1908, and the amendment thereto of April 5, 1910.

A jury having passed on the facts, we shall not review them further, but come at once to the two questions of law which are necessary to be decided.

Appellant first contends that the deceased assumed the risk. It will not be necessary for us to pass on this point in view of our holding on the question as to whether the negligence of the father in putting his boy to work under a false statement as to his age, and which has been judicially determined by the entry of a judgment non obstante on the first cause of action, will be imputed to the father and bar a recovery upon the second cause of action for pain and suffering which existed in the deceased, and which survives to the parents by the terms of and solely in virtue of the statute.

These was no survival of an action for tort at common law. While a right of action existed in the party injured, it died with him. The cause of action given--sometimes to the estate and sometimes to named persons--is in reality a creation. To say that a cause of action, which is personal and which dies with the person, survives can hardly be said to be a correct statement. It is only by force of statute that a survivor can assert a right to recover. The deceased had a right of action. The survivor of the estate has no right of action, but is given a cause of action purely statutory, and in which the added elements of death and designation of beneficiaries by statute are essential ingredients.

The controlling question then is whether the negligence of the father--the fraud and misrepresentation as to the age of the boy--may be urged as a defense. That it may be so urged in an action for wrongful death is admitted, but respondent insists that it is no defense to an action to recover under the survivor statute for pain and suffering endured by the deceased and for which he might have maintained an independent action if he had survived his injury. Counsel cites the following cases: Warren v. Manchester, etc., Ry. Co., 70 N.H. 352, 47 A. 735; Love v. Detroit, etc., Ry. Co., 170 Mich. 1, 135 N.W. 963; Nashville Lumber Co. v. Busbee, 100 Ark. 76, 139 S.W. 301, 38 L. R. A. (N. S.) 754; St. Louis, I. M. & S. Ry. Co., v. Dawson, 68 Ark. 1, 56 S.W. 46; McKay v. Syracuse Rapid Tr. Ry. Co., 208 N.Y. 359, 101 N.E. 885; Wymore v. Mahaska Co., 78 Iowa, 396, 43 N.W. 264, 6 L. R. A. 545, 16 Am. St. Rep. 449; Westerfield v. Levis, 43 La. Ann. 63, 9 So. 52; Norfolk, etc., Ry. Co. v. Groseclose's Adm'r, 88 Va. 267, 13 S.E. 454, 29 Am. St. Rep. 718; Wilmot v. McPadden, 78 Conn. 276, 61 A. 1069; Southern Ry. Co. v. Shipp, 169 Ala. 327, 53 So. 150; Ploof v. Traction Co., 70 Vt. 509, 41 A. 1017, 43 L. R. A. 108.

Appellant calls attention to the fact that in each of the cases cited the right of recovery was given to the estate of the deceased person, and that in such cases the estate, in which creditors may have an interest, being the primary claimant, and the heirs only secondarily interested, that the court will not deny a recovery upon the theory of imputed negligence, although the negligence of one who may share in the award contributed to the injury.

But it is insisted that, where the statute gives a cause of action in favor of certain named beneficiaries, and not in favor of the estate, although the action is to be maintained by the personal representatives for the benefit of the heirs or those named in the statute, the action is so far personal to the one seeking a recovery as to admit of defenses going to the conduct of the party under the maxim that no one shall profit by his own wrong.

This court has held that a person suing for the death of a child, where the recovery is for the benefit of the parent, and the entire recovery goes to him, may not recover when his negligence contributed to the death. Vinnette v. Northern Pacific Ry. Co., 47 Wash. 320, 91 P. 975, 18 L. R. A. (N. S.) 328. The like rule has been applied when the action is brought under the survivor statute, the recovery going to a named beneficiary and not to the estate.

'The difference between an action by the father for injuries to the child where death does not ensue and an action by the father as administrator of his dead child, brought under the statute for his own benefit, is a difference in form merely, not in substance, and on principle there can be no more reason for permitting a recovery in the latter case than in the former. In both the father is the substantial plaintiff and the sole beneficiary. To allow a recovery in either would be a violation of the policy of the law, which forbids that one shall reap a benefit for his own misconduct. Accordingly the authorities are practically unanimous to the effect that the guiding principle in both classes of cases is identical, and the contributory negligence of the beneficial plaintiff will as effectually defeat a recovery in the one case as in the other.' Richmond, etc., Co. v. Martin's Adm'r, 102 Va. 201, 205, 45 S.W. 894, 895.

There can be no difference in principle whether the recovery is sought under the death act for loss of society and service or under the survivor statutes for pain and suffering; for the right of the beneficiary is not to be determined by the right of the decedent, but by his own right as defined by statute. He is not maintaining an action for the benefit of the deceased, but for his own benefit, and that whether the action is maintained directly or by the administrator for his benefit. Koloff v. C. M. & P. S. Ry. Co., 71 Wash. 543, 129 P. 398; Brodie v. W. W. P. Co., 92 Wash. 574, 159 P. 791.

The cases upon which respondent really grounds his case are those of New Hampshire, Arkansas, Michigan, and Iowa. Each of these cases rests upon a local statute and proceeds upon the theory that the recovery is for the benefit of the estate, or that the right of recovery is a descendible or inheritable thing, and, being perfect in the deceased at the time of death, passes as any chose in action would pass, subject only to the defenses that might be urged against the owner. But each of the cases relied on, with a possible exception (the Iowa case), admits that the rule is different if the parent sues for his own benefit.

A careful reading of the cases convinces the writer that there is no real conflict in the authorities unless it be in the New Hampshire case. But if there be such conflict, there can be no difference in the principle involved whether the suit be brought for the death or for the pain and suffering; for, although many of the cases discourse learnedly upon the subject of imputed negligence, the justice of the cases rests in a deeper and more comprehensive principle; that is, that no man shall profit by his own wrong.

'The conclusion in these cases seems to have been reached mainly upon the rule that the negligence of the parents should not be imputed to the infant, and following the test of the statute, if the deceased

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