Johnson v. Seattle Elec. Co.

• Citation: 39 Wash. 211,81 P. 705
• Parties: JOHNSON et al. v. SEATTLE ELECTRIC CO.
• Decision Date: 18 July 1905
• Court: United States State Supreme Court of Washington

81 P. 705

39 Wash. 211

JOHNSON et al. v. SEATTLE ELECTRIC CO.

Supreme Court of Washington

July 18, 1905

Appeal from Superior Court, King County; R. B. Albertson, Judge.

Action by Christian Johnson and another against the Seattle Electric Company. From a judgment for defendant, plaintiffs appeal. Affirmed.

See 77 P. 677.

George Fowler and Root, Palmer & Brown, for appellants.

Hughes McMicken, Dovell & Ramsey, for respondent.

HADLEY J.

The plaintiffs in this action are respectively the surviving husband and minor son of Mattie Johnson, deceased. They jointly brought this action to recover damages on account of the death of said Mattie Johnson. They allege that death resulted from injuries received by her in a street railway accident in Seattle, while she was a passenger upon one of the defendant's cars. In addition to general damages, the plaintiffs allege that they have incurred great expense in and about the funeral and burial of the deceased, and that they have been damaged thereby. The defendant demurred to the complaint upon two grounds: (1) That several causes of action have been improperly united (2) that the complaint does not state facts sufficient to constitute a cause of action as to Christian Johnson. The demurrer was sustained. The order sustaining the demurrer recites that in the opinion of the court the claim for damages for the loss of the services, society, nurture, and counsel of the deceased is a separate and distinct cause of action from the claim for recovery on account of funeral and burial expenses; that the plaintiff Christian Johnson, the surviving husband, has no interest in the first-mentioned claim; that the plaintiff Merinus Colmer Johnson, the minor son, has no interest in the last-mentioned claim; and that therefore, said two claims cannot be properly prosecuted in the same action. The demurrer was sustained on the ground that several causes of action were improperly united in the complaint. The order gave the plaintiffs leave to amend their complaint, but they elected not to amend, and on motion of the defendant for judgment against the plaintiffs the motion was granted, and judgment was entered that plaintiffs shall take nothing by their action. They have appealed from the judgment.

Appellants urge that the surviving husband has a cause of action for the death of his wife, and that he may join with the child in bringing suit for such death, within the terms of section 4828, 2 Ballinger's Ann. Codes & St. This court held in Noble v. Seattle, 19 Wash. 133, 52 P. 1013, 40 L. R A. 822, that the word 'heirs,' as used in that statute descriptive of the persons who may maintain actions for the death of others, is restricted to the widow and children of the deceased. That construction was followed in Nesbitt v. Northern P. Ry. Co., 22 Wash. 698, 61 P. 141, and was approvingly mentioned in Robinson v. Baltimore & S. M. & R. Co., 26 Wash. 484, 67 P. 274. The still later case of Manning v. Tacoma Ry. & Power Co., 34 Wash. 406, 75 P. 994, was appealed to this court for the frankly avowed purpose of effecting a reinvestigation of the question, to the end that Noble v. Seattle, supra, might be overruled. In that case the court declined to reopen the subject, and declared that it considered the question as settled under the rule of state decisis. Appellants say, however, that the rights of a surviving husband have not been involved in any of the decided cases. In the first case cited the suit was brought by the father and mother of the deceased, in the second by the mother, and in the last by the mother. The third case mentioned was not one directly involving a construction of the statute, since it was brought by the surviving widow and children, as to whose right to sue no question has ever been raised. It appears, therefore, that no case has before been presented to this court where the surviving husband was seeking by authority of this statute to recover for the death of his wife. Appellants argue that it is the spirit and intent of the statute that the widower and minor children shall be accorded the same rights in case of the wrongful death of the wife and mother as are given to the widow and minor children in case of the wrongful death of the husband and father. It is insisted that under our community property system, which gives to the spouses equal shares of all that is acquired by their joint efforts, it follows that they are of equal value to each other, and that the death of the wife must, in legal contemplation, constitute a pecuniary loss to the husband, exactly equal to her loss in case of his death. We need not undertake to analyze the argument. Whether it be sound or not is a question for legislative consideration. The right of either husband or wife to sue for the death of the other must depend upon legislation authorizing it, and, if the statute in question does not authorize the husband to sue, then appellants' argument as to the mutual personal and property relations of the two is of no avail. Under the rule of stare decisis, we think this cannot be said to be an open question. When the court formerly reached the conclusion that the word 'heirs,' as used in the statute, did not include 'parents,' it did so only upon the theory that the term was limited to the persons theretofore specifically mentioned in the statute. In Noble v. Seattle the argument was concluded as follows: 'The word 'heirs,' as used in section 138 (Hill's Ann. St. & Codes), should be held to include only those persons who are thereinbefore specifically mentioned, viz., 'the widow, or widow and her children, or child or children if no widow.'' Discussing the subject of stare decisis in volume 26, Am. & Eng. Enc. of Law (2d Ed.) page 171, the writer says: 'A proposition assumed or decided by the court to be true, and which must be so assumed or decided in order to establish another proposition which expresses the conclusion of the court, is as effectually passed upon and settled in that court as the very matter directly decided.' See, also, School Trustees v. Stocker, 42 N. J. Law, 115. In Brown v. Chicago & N.W. Ry. Co. (Wis.) 78 N.W. 771, 44 L. R. A. 579, the court said: 'It is a mistaken opinion that nothing is decided in a case except the result arrived at. All the propositions assumed by the court to be within the case, and all the questions presented and considered and deliberately decided by...