Mesher v. Osborne

• Decision Date: 18 September 1913
• Citation: 75 Wash. 439,134 P. 1092
• Parties: MESHER v. OSBORNE.
• Court: Washington Supreme Court

134 P. 1092

75 Wash. 439

MESHER v. OSBORNE.

Supreme Court of Washington

September 18, 1913

Department 2. Appeal from Superior Court, Spokane County; W. A. Huneke Judge.

Action by Norman Mesher against J. W. Osborne. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Tolman & King, of Spokane, for appellant.

ELLIS, J.

This action was brought by a father to recover damages for the death of his child, an infant of 15 months, caused by its falling into a cesspool on the premises of the defendant which were then occupied by the defendant's tenant, one Prince. The cesspool was an excavation lined and covered with boards; the top being covered over with earth and sod so as not to be discoverable on ordinary inspection of the premises. The tenant testified that when she leased the premises from the defendant, about a month before the accident, the defendant agreed to put the premises in repair and keep them in repair as long as she occupied them, and that she had no knowledge of the existence of the cesspool and was not advised of its existence by the defendant. The defendant admitted that he did not mention the cesspool to the tenant at any time. He denied any general agreement to repair the premises, but that such an agreement was made is admitted in the appellant's brief. The evidence shows that the cesspool was relined in June, 1908, with common two-inch rough lumber furnished by the defendant; but the man who rebuilt the cesspool testified that he used some of the old planks for a part of the cover, because, as he remembered it, he was not furnished quite enough new lumber. The Meshers and the Princes were intimate friends and neighbors, living at diagonally opposite corners of the same block. Mrs. Mesher and Mrs. Prince and the children of the two families visited each other nearly every day. The mother of the deceased testified that on the morning of November 11, 1910, she took the deceased with her to the Prince home; that upon her arrival there she entered the kitchen, sat down with her child in her arms; that after a time she missed the child and went out to look for it, and failing to find it, went home and, not finding the child there, made inquiries from other neighbors and again at the Prince home. Finally, seeing a shawl which the child had worn on its head lying on the grass, she went towards it, when the ground gave away, and she also fell into the cesspool, where she found the baby, drowned. There was evidence that there had been wet weather for a few days prior to the accident, which is the only explanation offered of the giving way of the top of the cesspool under the weight of the child, aside from the fact, clearly shown by the evidence, that the boards covering the cesspool under the dirt and sod were thoroughly decayed. Mrs. Prince testified that she did not remember whether on this particular morning Mrs. Mesher brought the child with her when she called or not. She was under the impression that she did not. There was a window in the kitchen looking out upon the lawn covering the cesspool which was about 16 feet from the window. The defendant testified that he had made no examination of the cesspool to determine its condition or safety, since it was reconstructed in June, 1908, and that he had no reason to suspect that the boards would rot in that length of time, since in other cases he had known boards so used to last for eight years. At appropriate times the defendant demurred to the complaint, objected to the introduction of any evidence, moved for a nonsuit, for a directed verdict, and for judgment notwithstanding the verdict, all of which were denied. The trial resulted in a verdict for the plaintiff in the sum of $500, from a judgment upon which the defendant appealed.

The several assignments of error present three general questions. I. Was a cause of action stated? II. If so, was the evidence sufficient to sustain the verdict? III. Were the parents guilty of contributory negligence?

I. The appellant contends that the complaint stated no cause of action, and the evidence proved none, in that there was neither allegation nor proof of any dependence of the parents upon the deceased child for support. This claim is based upon the assumption that section 184, Rem. & Bal. Code, was repealed by the amendments of 1909 contained in sections 183 and 194, Rem. & Bal. Code. These sections, so far as material, read as follows:

'Sec. 180. * * * 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. If the deceased leave no widow or issue, then his parents, sisters or minor brothers who may be dependent upon him for support and who are resident within the United States at the time of his death, may maintain said action. * * *'

'Sec 194. 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.'

'Sec. 184. 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.'

The parts which we have italicized were inserted by the amendment of 1909 (Laws 1909, pp. 425, 566). If an action for wrongful death can be maintained at all in the absence of allegation and proof of dependence, it must be under the provisions of section 184. Kanton v. Kelly, 65 Wash. 614, 118 P. 890, 121 P. 833. Was this section repealed by the amendment of the other two sections? We think not. If there is any repeal, it rests in implication.

Repeals by implication are not favored and will only be indulged where the implication is a necessary one; that is, where without an implied repeal of the earlier act there would exist an inharmony in the body of the law irreconcilable on any conceivable theory reasonably compatible with the purpose of the later act. 1 Lewis' Sutherland, Statutory Construction (2d Ed.) pp. 465, 466, 467. A reasonable construction of the sections quoted develops no conflict irreconcilable or otherwise. The original section 183 gave a cause of action for wrongful death to the heirs or personal representatives of the deceased. The amendment of 1909 extended that cause of action to 'parents, sisters or minor brothers dependent upon him for support, and resident within the United States.' The cause of action so given is not limited by the age of the deceased, but only by the fact of dependence. The amendment in section 194 extends the survival of such actions for wrongful death to the cases of dependency added by the amendment in section 183. Such is the only obvious purpose of these amendments, and, in order to find a repugnancy of any kind between them and section 184, we must reverse every rule of construction and raise a conflict by the unnecessary and impossible implication that these amendments apply to actions for wrongful death accorded by section 184 to parents and guardians only and for the death of minor children alone. The basis of the causes of actions given by the two sections, 183 and 184, are distinct. The first as amended rests upon a loss of support by a person wholly or partially dependent, the second rests upon a loss of the common-law right of a parent to the service of his children during minority, which is extended by this section to a recovery for loss of such services after the wrongful death of the child and during what would have been its minority. An amendment of the one can have no possible relation to the other, since before the amendment the two sections had separate and distinct scopes and purposes.

We have held that the original section 183, though subsequently passed, did not repeal section 184 because each had an independent scope and purpose. Hedrick v. Ilwaco R. & Nav. Co., 4 Wash. 401, 30 P. 714. Obviously these distinct purposes are extended and emphasized rather than abrogated by the amendment of section 183 by the act of 1909. If, as appellant claims, there is anything said in our opinion in Kanton v. Kelly, supra, sustaining the other view, it was not so intended. We there referred to the Hedrick Case but did not overrule or modify it. On the contrary, the opinion on rehearing in Kanton v. Kelly distinctly recognizes the independent basis of the separate causes of action given by the two sections. That opinion, when read with discrimination, holds that a dependent parent suing for wrongful death of a minor child has a choice of actions between that conferred by section 183 as amended and section 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. The complaint stated a cause of action.

II. Was the evidence sufficient to establish a cause of action? A condensation of the lengthy complaint develops the following charges of negligence: (a) Failure to have the premises in repair and free from concealed defects at the time of the letting to the tenant Prince; (b) failure to repair after the letting; (c) failure to...