Dodson v. Continental Can Co.

• Decision Date: 16 December 1930
• Docket Number: 22343.
• Citation: 294 P. 265,159 Wash. 589
• Parties: DODSON v. CONTINENTAL CAN CO.
• Court: Washington Supreme Court

294 P. 265

159 Wash. 589

DODSON v. CONTINENTAL CAN CO.

No. 22343.

Supreme Court of Washington, En Banc.

December 16, 1930

Appeal from Superior Court, King County; J. T. Ronald, Judge.

Action by Mary Dodson, as administratrix of the estate of Gertie Matson, deceased, against the Continental Can Company. Judgment of dismissal, and plaintiff appeals.

Affirmed.

Carl L. Shuff, Arthur M. Harris, Stratton & Kane and Geo. G. Hannan, all of Seattle, for appellant.

Huffer Hayden, Merritt, Summers & Bucey, of Seattle, for respondent.

PARKER J.

The plaintiff, Mary Dodson, as administratrix of the estate of Gertie Matson, deceased, commenced this action in the superior court for King county for the benefit of the surviving husband and child of Mrs. Matson, seeking recovery of damages from the defendant, Continental Can Company alleged as the result of her death being caused by the negligence of the can company. The complaint was demurred to by the can company, upon the ground, among others, 'that this action has not been commenced within the time limited by law.' The demurrer was by the superior court sustained and, the plaintiff electing not to plead further, judgment of dismissal was accordingly rendered against her, denying recovery, from which she has appealed to this court.

Having arrived at the conclusion that the demurrer is sustainable upon the ground of the action not being commenced within the time limited by law, which seems to be the principal ground upon which the superior court's decision was rested, it becomes necessary for us to summarize only the alleged facts pertinent to that conclusion, as follows: Mrs. Matson was, for several years immediately prior to her death, employed in the can company's manufacturing plant. On September 27, 1925, Mrs. Matson died as the result of inhaling, for a continuous period of several years, poisonous gases and fumes emanating from the manufacturing of the can company's products at the place in its plant where she was required to work. The continued presence of such gases and fumes was caused by the negligence of the can company in not guarding, by proper ventilation, against their presence, so that they would not be injurious to Mrs. Matson and its employees similarly situated in their employment. On June 10, 1929, by order of the superior court for King county, Mary Dodson became the duly appointed and qualified administratrix of the estate of Gertie Matson, and letters of administration were duly issued to her on that day. On July 19, 1929, Mary Dodson as administratrix commenced this action in the superior court for King county. Thus it appears that this action was commenced several months more than three years after the occurrence of the death of Mrs. Matson.

This action was brought under chapter 123, Laws of 1917, which, in so far as we need here notice its language, reads as follows:

'Section 1. When the death of a person is caused by the wrongful act, neglect or default of another his personal representative may maintain an action for damages against the person causing the death. * * * [Rem. Comp. Stat. § 183.]

'Sec. 2. Every such action shall be for the benefit of the wife, husband, child or children of the person whose death shall have been so caused. If there be no wife or husband or child. * * * [Rem. Comp. Stat. § 183-1.]'

That act giving such right of action does not contain any language limiting the time within which such action may be commenced. So as to any such limitation we must look to our general statutory provisions limiting the time within which civil actions may be commenced. Those provisions, so far as here applicable, referring to sections of Remington's Compiled Statutes, read as follows:

'§ 155. Actions can only be commenced within the periods herein prescribed after the cause of action shall have accrued. * * *

'§ 159. Within three years, * * *

'2. An action for taking, detaining, or injuring personal property, including an action for the specific recovery thereof, or for any other injury to the person or rights of another not hereinafter enumerated. * * *'

We understand counsel upon both sides of this case to concede that these two quotations, read together, prescribe the limitation of time for the commencement of an action under our above-quoted wrongful death statute. Our decision in Robinson v. Baltimore & S. Mining & Reduction Co., 26 Wash. 484, 67 P. 274, decided in 1901, seems to render this plain. It was there held that, since our then existing wrongful death statute did not contain any prescribed limitation of time for commencing an action thereunder, the above-quoted three-year general limitation, which has been the law since long prior to the rendering of that decision, was applicable.

Our real problem is, When did the three-year statute of limitations start to run? It is contended in behalf of the can company that the cause of action, as alleged in the complaint, accrued on the date of the death of Mrs. Matson, because on that date the can company became liable, if at all, to respond in damages for her death, and on that date the right of the beneficiaries, her husband and child, to such damages, and their right to have an action then commence looking to such recovery from the can company, came into being. It is contended in behalf of the administratrix that, since there was no one competent to commence the action until she was appointed administratrix of the estate of Mrs. Matson, that is, no personal representative of Mrs. Matson following her death until that time, the cause of action did not accrue so as to start the statute of limitation running until that time.

We have seen by the terms of the statute that the deceased's 'personal representative may maintain' the action. This has been held by us to mean that the action can be maintained only by a personal representative of the deceased; that is, by an executor or administrator of the estate of the deceased. Howe v. Whitman County, 120 Wash. 247, 206 P. 968, 212 P. 164; Reutenik v. Gibson Packing Co., 132 Wash. 108, 231 P. 773, 37 A. L. R. 830. It has also been so held by the Supreme Court of the United States with reference to an action for wrongful death, under the Federal Employers' Liability Act, which is, in this respect, in substance the same as our own statute above quoted. Section 51, title 45, U.S. Code (45 USCA § 51); St. Louis, San Francisco & T. Ry. v. Seale, 229 U.S. 156, 33 S.Ct. 651, 57 L.Ed. 1129. We have also held, under our prior wrongful death statute, that it gave only a single right of action and only one cause of action for the benefit of the specified beneficiaries, though there be more than one constituting a class entitled to share in the recovery, and though that act authorized the maintenance of the action by the beneficiaries or by a personal representative of the deceased for the beneficiaries. Benson v. English Lumber Co., 71 Wash. 616, 129 P. 403; Stephenson v. Parton, 89 Wash. 653, 155 P. 147. Our later decision in Heath v. Stephens, 144 Wash. 440, 258 P. 321, that being an action under our present wrongful death statute, is in harmony with that holding. So it does appear that there was no person competent to maintain the action until Mary Dodson was, by her appointment and qualification as administratrix of the estate of Mrs. Matson, rendered competent to maintain the action. That, however, does not, to our minds, conclusively argue that the three-year statute of limitation did not commence to run at the date of the death of Mrs. Matson.

There seems to be a decided conflict in the decisions of the courts as to whether or not a statutory time limit for the commencement of an action to enforce a civil right commences to run only from the time there is a person in being who is legally competent to commence such action, though prior thereto the liability arose against the defendant and there be a person in being entitled to have the action commenced and maintained for his benefit. It seems to us that, in so far as we are concerned in our present inquiry, the Supreme Court of the United States has very convincingly answered this question in its decision in Reading Co. v. Koons, 271 U.S. 58, 46 S.Ct. 405, 70 L.Ed. 835. Justice Stone, therein speaking for the court, said:

'As respondent brought his action more than two years after the death and less than two years after his appointment as administrator, the sole question presented for review is whether, in an action for wrongful death brought under the federal Employers' Liability Act [45 USCA §§ 51-59], the two-year statute of limitations begins to run at the date of the death or at the date of the appointment of the administrator of the decedent.

'The federal Employers' Liability Act imposes upon common carriers by railroad, engaged in interstate commerce liability for the death of an employee employed in such commerce, when the death results from the negligence of the carrier or its agents, and gives a right of action to the personal representative of the decedent for the benefit of the surviving spouse and children of such employee, or if there...