Machek v. City of Seattle

• Decision Date: 16 December 1921
• Docket Number: 16639.
• Citation: 203 P. 25,118 Wash. 42
• Parties: MACHEK v. CITY OF SEATTLE.
• Court: Washington Supreme Court

203 P. 25

118 Wash. 42

MACHEK v. CITY OF SEATTLE.

No. 16639.

Supreme Court of Washington

December 16, 1921

Department 2.

Appeal from Superior Court, King County; John T. Ronald, Judge.

Action by Charles J. Machek, as administrator of the estate of Sophia Machek, deceased, against the City of Seattle. Judgment for defendant, and plaintiff appeals. Reversed, with orders to proceed with trial.

H. A P. Myers, of Seattle, for appellant.

Walter F. Meier and Frank S. Griffith, both of Seattle, for respondent.

MACKINTOSH J.

The complaint in this case states that it was begun by the plaintiff, as administrator of the estate of Sophia Machek who at the time of her death was a minor, that she was injured by the negligence of the respondent on the 5th of January, 1920, and that, by reason of those injuries, she died on the 29th of the same month, and that from the time of her injury until her death she had endured great mental and physical pain and suffering and places the compensation for her injuries at $35,000. It further alleges that the deceased had no husband or child, and the action is prosecuted in favor of the father and mother of the deceased residents of the United States, who at the time of her death were dependent upon her for support. Such proceedings were had upon this complaint as to result, virtually, in sustaining a demurrer to the complaint, which places before us only the question as to whether the complaint states a cause of action.

Counsel for respondent have argued as to the effect of sections 183, 184, and 194 of Rem. Code 1915; section 183 having been amended by chapter 123, Laws 1917. A brief review of these sections and of the decisions interpreting them will be sufficient to answer the question presented in this case.

Section 183, as amended, now reads:

'When the death of a person is caused by the wrongful act, neglect or default of another his personal representative may maintain an action for damages against the person causing the death; and although the death shall have been caused under such circumstances as amount, in law, to a felony.' Section 1, c. 123, Laws 1917.

'Every such action shall be for the benefit of the wife husband, child or children of the person whose death shall have been so caused. If there be no wife or husband or child or children, such action may be maintained for the benefit of the parents, sisters or minor brothers, who may be dependent upon the deceased person for support, and who are resident within the United States at the time of his death. In every such action the jury may give such damages as, under all circumstances of the case, may to them seem just.' Section 2, c. 123, Laws 1917.

Section 184, Rem. Code, reads as follows:

'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 194, Rem. Code, is:

'No action for a personal injury to any person occasioning his death shall abate, nor shall such right of action determine, by reason of such death, if he have a wife or child living, or leaving no wife or issue, if he have dependent upon him for support and resident within the United States at the time of his death, parents, sisters or minor brothers; but such action may be prosecuted, or commenced and prosecuted, in favor of such wife or in favor of the wife and children, or if no wife, in favor of such child or children or if no wife or child or children, then in favor of his parents, sisters, or minor brothers who may be dependent upon him for support, and resident in the United States at the time of his death.'

I. Section 183 creates a cause of action where no common-law right existed. The action under this section, is maintained by the personal representative of the deceased for the benefit of the wife, husband, child, or children, and if no such relatives exist, then for the benefit of parents, sisters, or minor brothers, residents of the United States and dependent upon the deceased for support. We notice that this section does not refer to the death of a minor, but gives a right of action to the persons named for the damages occasioned by death. So far as the question before us is concerned, relating to parents, it gives a right of action to dependent parents, and measures their recovery by the amount of support of which the wrongful death deprives them, such amount not being limited by the support which would have been furnished to such parents, in the case of a minor's death, to the period of minority.

Kanton v. Kelly, 65 Wash. 614, 118 P. 890, 121 P. 833, presents a thorough discussion of the effect of this section, saying: 'Under section 183, if dependency is the basis of recovery, the measure of damage is greater, very much greater, then it would be under section 184. Under section 183 it is not limited, nor is the allowance to be measured by an arbitrary time limit. Under section 184 the recovery for services does not extend beyond the time when the child becomes of age. * * * Under section 183 the question of dependency is the paramount issue. Under section 184, aside from the issue of contributory negligence, the emancipation of the child would be about the only defense that could be set up.'

In Mesher v. Osborne, 75 Wash. 439, 134 P. 1092, 48 L. R. A. (N. S.) 917, the court draws the distinction between sections 183, 184, and 194, and, among other things (75 Wash. at page 445, 134 P. at page 1094, 48 L. R. A. [N. S.] 917), uses this language:

'* * * A dependent parent, suing for wrongful death of a minor child, has a choice of action between that conferred by § 183 as amended and § 184, but that the proof required would be different, and that the measure of recovery would not be the same. One would rest in loss of support; the other in loss of service.'

Brodie v. Washington Water Power Co., 92 Wash. 574, 159 P. 791, contains a discussion of the actions maintainable under sections 183 and 184:

'The statutes were enacted to overcome defects thought to exist in the common law. By the common law no person had the right to recover for the death of another, no matter how wrongfully or negligently caused, and the right of action possessed by a person injured did not survive his own life. The first section of the statute cited is plainly a survival statute. [Section 194.] Its purpose is to preserve in the beneficiaries named therein such right of action as the injured person himself had because of the wrongful or negligent act causing the injury, and is confined, to such personal loss as the injured person sustained. The second [section 183], although originating in the same wrongful act or neglect, begins where the other ends and is confined to such loss and damage as the beneficiaries named have suffered by the death of the person injured. Swanson v. Pacific Shipping Co., 60 Wash. 87, 110 P. 795; Thompson v. Seattle, Renton & Southern Ry. Co., 71 Wash. 436, 128 P. 1070.'

In the case of Whittlesey v. City of Seattle, 94 Wash. 645, 163 P. 193, L. R. A. 1917D, 1084, the effect of section 183 was considered, the court saying:

'Section 183

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