Hansen v. Stimson Mill Co.

• Decision Date: 02 August 1938
• Docket Number: 27035.
• Citation: 81 P.2d 855,195 Wash. 621
• Parties: HANSEN et al. v. STIMSON MILL CO. et al.
• Court: Washington Supreme Court

81 P.2d 855

195 Wash. 621

HANSEN et al. v. STIMSON MILL CO. et al.

No. 27035.

Supreme Court of Washington

August 2, 1938

Department 1.

Appeal from Superior Court, King County; Kazis Kay, Judge.

Action by Swen G. Hansen and another, as guardians of the estate of Helen Patricia Lundberg, a minor, and others, against the the Stimson Mill Company and others, to recover for the death of the minor's father on the theory that a judgment recovered by the minor's since deceased mother for $13,500 was void and that plaintiffs were entitled to have determined the amount of demages sustained by the minor in her individual capacity. From a judgment dismissing the action, plaintiffs appeal.

Affirmed.

Edward C. Hudson and Frank L. Walters, both of Seattle, for appellants.

Skeel McKelvy, Henke, Evenson & Uhlmann, Wright, Jones & Bronson L. D. Fricks, Jr., Ralph S. Pierce, and Gordon H. Sweany, all of Seattle, for respondents.

MAIN Justice.

To the second amended complaint in this case, which will be referred to as the complaint, a demurrer was interposed and sustained. The plaintiffs refused to plead further and elected to stand upon the complaint. From the judgment entered dismissing the action, they appeal.

The facts, as stated in the complaint disregarding the conclusions of fact and law, may be summarized as follows: December 28, 1928, Paul A. Lundberg received an injury in an automobile accident, which resulted in his death. There were left surviving him his widow Winifred A. Lundberg, and a daughter, Helen Patricia Lundberg, sixteen months old. Subsequently, the widow was appointed administratrix of her deceased husband's estate, and, as such, instituted an action, under the wrongful death statute in this state, against the Stimson Mill Company, a corporation, and the Nettleton Lumber Company, a corporation, each of which had its principal place of business in the city of Seattle.

June 22, 1929, the case was presented to the superior court upon stipulation. The administratrix was present in person and represented by her counsel, and the corporations were represented by their respective counsel. The court made findings of fact from which it concluded that the administratrix was entitled to recover, and a judgment was entered in the sum of $13,500 against both corporations. Two days later, on June 24, the judgment was satisfied by the law firm representing the administratrix. The settlement was made by the administratrix without a previous order of the court authorizing it, and without the appointment of a guardian ad litem for the minor child.

At the time the matter was presented to the court, no testimony was taken, and the findings and judgment were based solely upon the stipulation made by the respective parties. There was no segregation in the judgment as to the amount that should go to the respective beneficiaries entitled to it under the wrongful death statute, which will be hereinafter referred to. Subsequently, the administratrix died, without making any accounting for the proceeds of the judgment. After her death, an administratrix de bonis non was appointed for the estate of Paul A. Lundberg, a guardian was appointed for the minor child, and an administratrix appointed for the estate of the deceased widow. Following their appointment, they brought the present action against the two corporations and the individual members of the law firm who acted for the administratrix at the time the judgment above mentioned was entered, paid, and satisfied.

The theory of the complaint appears to be that the $13,500 judgment was void and that the appellants are entitled to have the amount of the damages sustained by the minor in her individual capacity determined in this action, or she is entitled to a judgment against the respondents giving her her proportionate share of the $13,500.

Whether the complaint states a cause of action, as we view it, ultimately depends upon whether the administratrix of the deceased's estate had the right to compromise and receive payment of the claim without having the amount that would go to the respective beneficiaries specified in the judgment, without being previously authorized to make the settlement or compromise by the court, and without having a guardian ad litem appointed for the minor child.

Rem.Rev.Stat. § 183, provides that:

'When the death of a person is

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