Harvey v. Cleman

• Decision Date: 11 March 1965
• Docket Number: No. 37251,37251
• Citation: 65 Wn.2d 853,400 P.2d 87
• Court: Washington Supreme Court
• Parties: H. Duane HARVEY, Carl D. Plochowietz and Lee R. McNair, Appellants, v. Charles F. CLEMAN, Defendant, Allstate Insurance Company, Garnishee Defendant. STANDARD DISCOUNT CORPORATION, a Washington corporation, Respondent, v. Harry J. SEUNG and Jane Doe Seung, his wife, and Roy J. Mahoney and Jane Doe Mahoney, his wife, and Duane Harvey and Jane Doe Harvey, his wife, doing business as Atlas Tractor Rentals, Defendants, Allstate Insurance Company, Garnishee Defendant.

Page 853

65 Wn.2d 853

400 P.2d 87

H. Duane HARVEY, Carl D. Plochowietz and Lee R. McNair, Appellants, v. Charles F. CLEMAN, Defendant, Allstate Insurance Company, Garnishee Defendant.

STANDARD DISCOUNT CORPORATION, a Washington corporation, Respondent, v. Harry J. SEUNG and Jane Doe Seung, his wife, and Roy J.

Mahoney and Jane Doe Mahoney, his wife, and Duane

Harvey and Jane Doe Harvey, his wife,

doing business as Atlas

Tractor Rentals, Defendants,

Allstate Insurance Company, Garnishee Defendant.

No. 37251.

Supreme Court of Washington, Department 2.

March 11, 1965.

Lee R. McNair, Seattle, for appellants.

Lester Kleinberg, Jr., Seattle, for respondent.

WEAVER, Judge.

This appeal involves the validity of an assignment of a cause of action sounding in tort. It requires an interpretation of § 1, chapter 137, Laws of 1961 (RCW 4.20.046)--the survival of causes of action--and its application to the facts of the instant case, which are as follows:

(1) October 20, 1961, H. Duane Harvey had pending an action against Charles F. Cleman for personal injuries and special damages; Standard Discount Corporation had a separate suit pending against Harvey. Lee R. McNair, Harvey's attorney, filed a Notice of Attorney's Lien in Harvey's action against Cleman; and Harvey executed assignments to McNair and Carl D. Plochowietz, as security for indebtedness allegedly then owed by Harvey to McNair and Plochowietz.

(2) October 23, 1961, a jury awarded Harvey $7,800 in his action against Cleman (the verdict is not in the record); judgment was entered November 20, 1961.

(3) November 27, 1961, Standard Discount had a writ of garnishment served on Allstate Insurance Company, Cleman's insurer.

(4) November 28, 1961, Harvey garnished Allstate.

(5) June 15, 1962, judgment was entered in favor of Standard Discount in its action against Harvey.

(6) August 20, 1962, Standard Discount levied execution upon Harvey's right to receive proceeds from his judgment against Cleman and purchased Harvey's interest in the judgment at a sheriff's sale on September 10, 1962.

(7) October 18, 1962, Allstate Insurance paid $7,500 into court in full satisfaction of the $7,800 judgment in favor of Harvey against Cleman.

(8) The trial court held McNair's attorney's lien, which amounted to $3,087, superior to any claim of Standard Discount. There is no appeal from this part of the court's decision.

(9) The trial court held that the assignment by Harvey to McNair and Plochowietz was 'invalid against and inferior to the claims of Standard Discount' and that therefore Standard Discount was entitled to $4,413, the amount being determined by subtracting from the amount Allstate Insurance had paid into court ($7,500) the amount of McNair's attorney's lien ($3,087).

The test of assignability in this jurisdiction is whether the cause of action survives to the personal representative of the assignor. If it does, the cause of action is assignable. The reason, or lack of reason, for the rule is discussed in Cooper v. Runnels, 48 Wash.2d 108, 291 P.2d 657, 57 A.L.R.2d 597 (1955), and in an extensive annotation thereto at page 603 by W. W. Allen, entitled 'Assignability of claim in tort for damage to personal property.' Although appellants McNair and Plochowietz dub it an 'archaic and oft criticized rule,' it is, nevertheless, the rule of this jurisdiction. No reason has been advanced why it should be abandoned in the absence of legislative direction.

The time-honored approach when called upon to interpret a statute which replaces another is to consider (a) the law under the previous statute and the problems presented and (b) the new statute and the extent to which it remedied the problems.

Laws of 1869, § 659 (Code of 1881, § 718; RCW 4.20.040) provided that:

'All other causes of action (than those enumerated in a section involving a right of action for wrongful death) by one person against another, whether arising on contract or otherwise, survive to the personal representatives of the former and against the personal representatives of the latter. * * *'

In a number of decisions commencing with Slauson v. Schwabacher Bros. & Co., 4 Wash. 783, 31 P. 329 (1892) (the cases are collected in Cooper v. Runnels, supra), this court interpreted the statute to mean that only those causes of action which survived at the common law survived in this state. These decisions prompted one legal commentator to observe that they furnished '* * * as neat an example of judicial legislation as can readily be brought to mind * * *' Richards, 'Survival of Actions' 28 Wash.L.Rev. 201 (1953).

Our former decisions caused the Judicial Council of this state to make an intensive study of the problem of the survival of causes of action. The council's study resulted in the following comment in its Seventeenth Report (Biennial), p. 9, submitted to the state legislature, January, 1961:

'The problem of survival of actions in this State has been a vexing one. Starting with a legislative expression that all causes of action should survive we have by subsequent court decision and legislation reached a point where all but a very few causes of action survive. It is, however, difficult to determine which of these few causes survive without litigation. See, for example, Cooper v. Runnels 48 Wn.2d 108, 291 P.2d 657 (1955), Mickelson v. Williams, 154 Wash.Dec. 296, 340 P.2d 770 (1959) (54 Wn. (2d) 293) and Richards, Survival of Actions--Torts--Death of the Tortfeasor, 28 Wash.Law Review 201 (1953). The only objection to permitting all causes of action to survive the death of either party appears to be a fear that such legislation would have a serious effect upon insurance rates. The Council doubts the validity of this argument. But, even if it be true, the Council feels that the humanitarian aspects of permitting survival of the remaining actions which do not survive far outweighs the fear of the insurance companies that they may have to increase their rates. The proposal also deals with and covers the community property aspects of survival questions.'

The council recommended to the legislature that it repeal RCW 4.20.040 under which our prior cases were decided and substitute the following:

'All causes of action by a person or persons against another person or persons Shall survive to the personal representatives of the former and against the personal representatives of the latter, whether such actions arise on contract or Otherwise, and whether or not such actions would have survived at the common law or prior to the date of enactment of this act. * * *' (Italics ours.) (Now RCW 4.20.046)

The legislature repealed ...