Ostheller v. Spokane & I.E.R. Co.

• Decision Date: 29 July 1919
• Docket Number: 15172.
• Court: Washington Supreme Court
• Parties: OSTHELLER v. SPOKANE & I. E. R. CO.

182 P. 630

107 Wash. 678

OSTHELLER v. SPOKANE & I. E. R. CO.

No. 15172.

Supreme Court of Washington, En Banc.

July 29, 1919

Appeal from Superior Court, Spokane County; Bruce Blake, Judge.

Action by Robert Ostheller, administrator of the estate of Ferdinand H. Ostheller and Minnie Ostheller, against the Spokane &amp Inland Empire Railroad Company. From a judgment allowing recovery for wife's death, defendant appeals. Reversed and action dismissed.

Tolman J., dissenting.

Graves, Kizer & Graves, of Spokane, for appellant.

Tustin & Chandler, of Spokane, for respondent.

PARKER J.

This is an action to recover damages for the death of Ferdinand and Minnie Ostheller, husband and wife, alleged to have been caused by the wrongful act, to wit, the negligence, of the defendant railroad company. While the death of Mr. and Mrs. Ostheller occurred at the same time as the result of a single alleged wrongful act of the company, and recovery therefor was sought in the superior court in this one action, such recovery was sought in two causes of action separately pleaded in one complaint, the allegations of which separate causes of action were in substance the same, except as to the person whose death was so occasioned; damages being claimed by the administrator in behalf of the heirs of the deceased in the first cause of action for the death of Mr. Ostheller, and in the second cause of action for the death of Mrs. Ostheller. A single trial of both causes of action upon the merits in the superior court for Spokane county, sitting with a jury, resulted in a verdict in favor of the company denying recovery for the death of Mr. Ostheller, and a verdict in favor of the administrator awarding recovery for the death of Mrs. Ostheller. Judgment was rendered accordingly. The railroad company has appealed from that portion of the judgment awarding recovery for the death of Mrs. Ostheller.

Our problem, as we view it, calls for but a brief summary of the controlling facts. The Osthellers, for about four years immediately preceding their decease, lived in the southern part of Spokane county, some 20 miles south of the company's electric railway line, which runs east from the city of Spokane. At the time of their decease they were returning to their home in their automobile, having been on a trip to the northern part of the county, merely to see the country, and incidentally to purchase and take home in their automobile some vegetables, as opportunity therefor might offer. As they approached the crossing of the company's tracks at the little station of Flora, Mr. Ostheller driving the automobile, one of appellant's trains also approached the crossing from the east at a high rate of speed. As they came upon the crossing, their automobile was struck by the appellant's fast-moving train, resulting in the practical destruction of their automobile and also the death of both of them, all of which occurred as nearly instantaneously as effect could follow cause under such circumstances. Appellant denied negligence upon its part, and also set up the defense of contributory negligence on the part of Mr. and Mrs. Ostheller in the driving of their automobile upon the crossing without heeding the approach of the train, which the company asserted was in plain view of them in ample time for them to stop their automobile and avoid being injured. We shall assume, for present purposes, that the evidence was such as to call for the submission of the question of contributory negligence to the jury, though it is strenuously argued in behalf of the company that it should have been decided as a matter of law that the defense of contributory negligence was sufficiently proven to warrant the taking of the case from the jury and deciding it in favor of the company. Both defenses were submitted to the jury by the trial court by its instructions. The verdict of the jury denying recovery for the death of Mr. Ostheller and awarding recovery for the death of Mrs. Ostheller renders it plain that the jury found that, while the company was negligent, Mr. Ostheller's contributory negligence was such as to prevent recovery for his death, but that his contributory negligence was not such as to prevent recovery for Mrs. Ostheller's death, and that she individually was not guilty of contributory negligence.

This action was commenced and prosecuted by the administrator of the estate of Mr. and Mrs. Ostheller, in behalf of their children, under section 183, Rem. Code, which, in so far as we need here notice its language, reads as follows:

'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.'

It is here contended by counsel for the company that the contributory negligence of Mr. Ostheller, established by the verdict, preventing recovery for his death, prevents recovery for the death of Mrs. Ostheller; and that the trial court erred in declining to so decide as a matter of law, in denying the motion, timely made in behalf of the company, for judgment notwithstanding the verdict awarding recovery for the death of Mrs. Ostheller.

We regard it as well-settled law that while this is not a statute providing for the survival of a cause of action possessed by the deceased for recovery for injuries resulting in his death, but is a statute giving to the heirs a new right of action nor recognized by the common law, it nevertheless gives a right of action to the heirs of the deceased which is dependent upon the right the deceased would have to recover for such injuries up to the instant of his death; in other words, dependent upon the right of the injured person to maintain an action for the damage resulting from his injury, had he survived. And this, we think, is the law governing the rights of the heirs, whether the statute expressly so provides or not. It appears that the original Lord Campbell Act did so provide in express terms, as do several of the state statutes of this country; while our statute above quoted, those of the several states, and the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. §§ 8657-8665]) do not so provide in express terms. The words 'wrongful act or neglect,' used in statutes of this nature in defining the quality of the act causing the injury and death, it seems to be universally agreed by the courts, mean wrong or neglect as against the deceased; that is, in the sense that the deceased could have recovered damages for the injury resulting in his death. In Tiffany, Death by Wrongful Act (2d Ed.) § 63, that learned author states the rule as follows:

'An essential limitation upon the words 'wrongful act, neglect, or default' is created by the provision that they must be such as would have entitled the party injured to maintain an action therefor. This provision makes it a condition to the maintenance of the statutory action that an action might have been maintained by the party injured for the bodily injury. The condition has reference, of course, not to the loss or injury sustained by him, but to the circumstances under which the bodily injury arose, and to the nature of the wrongful act, neglect, or default; and although this condition has not been expressed in California, Idaho, Kentucky, and Utah, no case has been found in which it has not been implied. A preliminary question arises, therefore, in every action for death, namely, was the act, neglect, or default complained of such that if it had simply caused bodily injury, without causing death, the party injured might have maintained an action?'

In Northern Pacific Ry. Co. v. Adams, 192 U.S. 440, 24 S.Ct. 408, 48 L.Ed. 513, the Supreme Court of the United States had under consideration the statute of Idaho, in substance the same as ours above quoted, in so far as our present inquiry goes, which statute, like ours, contained no express provision making the right of the heirs dependent upon the right of the deceased to recover for the injury resulting in his death had he survived. Justice Brewer speaking for the court, following some preliminary...