Graetz v. McKenzie

• Decision Date: 25 November 1891
• Citation: 3 Wash. 194,28 P. 331
• Parties: GRAETZ ET AL. v. MCKENZIE ET AL.
• Court: Washington Supreme Court

28 P. 331

3 Wash. 194

GRAETZ ET AL. v. MCKENZIE ET AL.

Supreme Court of Washington

November 25, 1891

Appeal from superior court, Spokane county; J. M. KINNAIRD, Judge.

Action by Bertha L. Graetz and another against John Doe McKenzie and another to recover damages for the death of L. W. Graetz. From a judgment for defendants on demurrer plaintiffs appeal. Reversed and remanded.

David Herman and James Dawson, for appellants.

Turner & Graves, for respondents.

ANDERS C.J.

This was an action to recover damages for the death of L. W.

Graetz alleged to have been caused by the negligent act of the defendants, and was brought by the surviving wife and child of the deceased. The court below sustained a demurrer to the complaint on the ground that the plaintiffs had no legal capacity to sue, and accordingly gave judgment for defendants. The action was brought under section 8 of the Code of Washington, which reads as follows: "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. 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 any 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." Section 717 of the Code is as follows: "Sec. 717. When the death of a person is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action at law therefor against the latter if the former might have maintained an action, had he lived, against the latter, for an injury caused by the same act or omission. Such action shall be commenced within two years after the death, and the damages therein shall not exceed five thousand dollars, and the amount recovered, if any, shall be administered as other personal property of the deceased person." The only questions presented in this case for the determination of this court are, can these two sections, 8 and 717, be so reconciled with each other as to stand together as valid and independent enactments? and, if not, which of the two must yield to the other? The views of the learned counsel for the respective parties in most respects are entirely coincident. By both sides it is claimed, and justly, too, that the Code should be regarded as one act or body of law, and that each of its provisions should be so construed as to harmonize with every other, if possible, so as to work no repeal of any part. But counsel for appellants insist that there is no real conflict between the two sections, and urge that the object and intent of the legislature in passing section 8 was to provide a remedy for the heirs, distinct from that in favor of the creditors, or, rather, of the estate of the deceased, provided for by section 717, and that there can be legal objection to permitting two actions for the same negligent act when two wrongs are thereby inflicted upon two different persons. It is not denied, on the other hand, that the legislature might subject a party to two actions if two wrongs are thereby committed; but it is insisted that the legislative intent to do so must be clear and unequivocal, and that no such intention is manifested in the two sections under consideration; and we think this latter proposition is undoubtedly true. By section 8 either the heirs or personal representatives, but not both, my bring the action therein provided for, and recover such damages, pecuniary or exemplary, as to the jury may seem just under the circumstances. By section 717 the personal representatives may bring the action within two years after the death, but the amount of the recovery is limited to $5,000, and the sum recovered is administered as other personal property of the deceased person. Here, then, we have the same persons authorized to maintain two different actions against the same party or parties, for the same wrongful act, in one of which not more than $5,000 may be recovered, and in the other any amount that may to the jury, under the circumstances, seem just; and in both of which the same parties, the heirs, may be beneficiaries, in whole or in part. If the action be brought under section 8 by the personal representatives, the heirs may be the beneficiaries; if by the heirs themselves, then they certainly are the parties entitled to the amount recovered; and if the action be brought under section 717, and there are no debts, or if the debts do not equal the amount of the recovery, the remainder will go to them by operation of law, as other personal property of the decedent. While we recognize the well-established principles of law that repeals by implication are not favored, and that it ought not to be presumed that the legislature intended to place or keep contradictory enactments in the Code, or to repeal a law without expressing an intention to do so, we are nevertheless unable, by the application of any of the rules of statutory construction, to reconcile these two sections of the Code. Being absolutely repugnant to each other, which must stand and which must fall? The learned ...