Jones v. Miller

• Citation: 77 P. 811,35 Wash. 499
• Parties: JONES v. MILLER et al.
• Decision Date: 26 July 1904
• Court: United States State Supreme Court of Washington

77 P. 811

35 Wash. 499

JONES v. MILLER et al.

Supreme Court of Washington

July 26, 1904

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

Action by Rebecca Jones against P. B. M. Miller and others. Judgment for defendants. Plaintiff appeals. Dismissed.

G. Ward Kemp, for appellant.

Fred H Peterson, Norwood W. Brockett, Fulton & Faben, and Miller &amp Ross, for respondents.

FULLERTON C.J.

Rebecca Jones, the appellant above named, brought this action to recover damages for the alleged unlawful mutilation and dishonor of the body of her deceased husband. The mutilation and dishonor complained of consisted of an incision made into the abdominal cavity, sufficient to explore the stomach and other digestive organs, by the respondents Miller and Ross for the purpose of ascertaining the cause of death. The body was at the time in the custody and charge of the respondents Butterworth & Sons. As the grounds of her injury, the appellant alleged that upon learning the facts, and viewing the 'body so cut, mutilated, and dishonored,' she 'was most grievously distressed, mortified, and humiliated, and received a severe nervous shock, and suffered great mental pain and distress, and has ever since grieved and suffered humiliation and mental pain and distress, and * * * has been damaged in the sum of five thousand dollars.' On the trial the appellant was nonsuited at the motion of the respondents on the ground that she failed to prove a sufficient cause for the jury. From the judgment following the order of nonsuit, this appeal was taken.

After the appeal had been perfected, and the cause argued and submitted in this court, Mrs. Jones died, leaving a will, in which she named her eldest son, William J. Jones, as her executor. The executor named duly qualified as such, and thereafter moved this court to be substituted as plaintiff and appellant, with leave to continue the prosecution of the action in his own name. The respondents oppose the motion, and move to dismiss the appeal on the ground that the action is not one that survives to heirs or personal representatives. These motions present the questions to be determined.

At common law an action for an injury to the person, such as the one in question here, abated on the death of the person injured, and could not thereafter be revived by his heirs or personal representatives. The executor does not seriously question the correctness of this proposition, but contends that the action survives by virtue of section 5695 of the Code (Ballinger's Ann. Codes &amp St.), which provides: 'All other causes of action 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. * * *' When we read this section as if it stood alone, and apart from its context, it doubtless bears the construction put upon it; but we held in Slauson v. Schwabacher...