Hedrick v. Ilwaco Ry. & Nav. Co.

• Decision Date: 13 June 1892
• Citation: 30 P. 714,4 Wash. 400
• Court: Washington Supreme Court
• Parties: HEDRICK v. ILWACO RY. & NAV. CO.

30 P. 714

4 Wash. 400

HEDRICK v. ILWACO RY. & NAV. CO.

Supreme Court of Washington

June 13, 1892

Appeal from superior court, Pacific county; EDWARD F. HUNTER, Judge.

Action by Gideon T. Hedrick against the Ilwaco Railway & Navigation Company. Judgment for defendant, and plaintiff appeals. Reversed.

Watson, Hume & Watson, for appellant.

Fulton Bros., for respondent.

ANDERS C.J.

Appellant brought this action against the respondent to recover damages for loss of services, during minority, of his son, Franklin G. Hedrick, aged five years and seven months, whose death it is alleged was caused by the negligence of respondent. The sufficiency of the complaint was not questioned, but the defendant, as a defense to the action, pleaded that the plaintiff, as administrator of the estate of the deceased had previously recovered a judgment of $2,000 against the defendant for the death of his child, and that the same had been paid. A demurrer was interposed to this defense, which the court overruled, and, the plaintiff declining to reply, a judgment dismissing the action was entered, from which the plaintiff appealed.

The action was brought under section 9 of the Code of 1881, which reads as follows: "Sec. 9. A father, or, in case of the death or desertion of his family, the mother, may maintain an action as plaintiff for the injury or death of a child, and a guardian for the injury or death of his ward." Section 8 (Code 1881) provides that "the widow, or widow and her children, or child or children, if now 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 circumstances of the case, may to them seem just." That portion of section 8 relating to damages for the death of a person killed in a duel, as well as sections 9 and 717 of the Code of 1881, were originally adopted as parts of the practice act of 1873, and were designated, respectively, as sections 8, 9, and 656 of that act. But the remaining portion of section 8 was not enacted until 1875, and was then designed by the legislature to follow section 8, as a new and distinct section. See Act Nov. 12, 1875, § 4. Subsequently this "new section" was consolidated with the previous section 8, and with it now constitutes section 8 of the Code of 1881, as above set forth. Section 138, Hill's Code. In Graetz v. McKenzie, 28 P. 331, 3 Wash. St. 194, this court held that this additional section adopted in 1875, being a later statute, and irreconcilably in conflict with said section 656, repealed the latter, and also section 717 of the Code, which was but a continuation thereof, and not a new enactment. The only question, therefore, to be determined on this appeal, is whether a parent has a right to recover damages for the death of a child, separate and distinct from that conferred upon the heirs or personal representatives by section 8 of the Code of 1881. It is settled beyond controversy that, at common law, no civil action could be maintained for damages resulting from the death of a human being. But that defect of the common law has been obviated by statute in the several states, analogous to the English statute commonly known as "Lord Campbell's Act," (9 & 10 Vict. c. 93,) though often varying more or less from its provisions, especially as to the party entitled to maintain the action. The object and purpose of these statutes is to provide a remedy whereby the family or relatives of the deceased, who might naturally have expected maintenance or assistance from the deceased had he lived, may recover compensation from the wrongdoer commensurate with the loss sustained. Usually the right of action, as in Lord Campbell's act, is given to the executor or administrator, and the sum recovered inures to the benefit of the particular individuals designated by the statute. In this state, as has been seen, under section 8, the heirs or personal representatives may maintain the action; and unless section 9 was, as respondent contends, repealed by the amendatory act of 1875, a parent may also maintain an action as plaintiff for the injury or death of a child.

It is claimed by respondent that an action for the death of a person, caused by the wrongful act or neglect of another, can only be maintained by the heirs or personal representatives of the person killed, and that section 8 repeals section 9 which was a part of the statute of 1873. Repeals by implication are not...