Parmley v. Pleasant Valley Coal Co.

• Decision Date: 08 August 1924
• Docket Number: 4137
• Court: Utah Supreme Court
• Parties: PARMLEY v. PLEASANT VALLEY COAL CO.

228 P. 557

64 Utah 125

PARMLEY v. PLEASANT VALLEY COAL CO.

No. 4137

Supreme Court of Utah

August 8, 1924

Appeal from District Court, Third District, Salt Lake County Ephraim Hanson, Judge.

Action by Joseph Parmley, a minor, by guardian ad litem, Mary Parmley, against the Pleasant Valley Coal Company. From a judgment of dismissal, plaintiff appeals.

AFFIRMED.

Marioneaux King & Schulder, of Salt Lake City, for appellant.

Ferdinand Erickson, W. W. Ray, and H. J. Binch, all of Salt Lake City for respondent.

FRICK, J. WEBER, C. J., and GIDEON, THURMAN, and CHERRY, JJ., concur.

OPINION

FRICK, J.

Joseph Parmley, a minor, hereinafter called plaintiff, by his mother, Mary Parmley, as his guardian ad litem, on the 20th day of September, 1921, filed his complaint in the district court of Salt Lake county, against the defendant, Pleasant Valley Coal Company, hereinafter designated defendant, in which complaint, after stating the necessary matters of inducement, it is alleged:

That plaintiff's father, one William Parmley, was killed in the coal mine of defendant by reason of an explosion which was caused through the negligence of the defendant as hereinafter will more fully appear. The complaint then proceeds:

"That the plaintiff herein was born on the 30th day of October, 1900, and was the legitimate child of the said William Parmley and the said Mary Parmley, his guardian ad litem; that the deceased at the time of his death left him surviving his said widow, Mary Parmley, a daughter, Maude Parmley, two sons, William Parmley and Thomas Parmley, and the plaintiff at the time of said death of the said William Parmley unborn and in his mother's womb; that on or about the 24th day of September, A. D. 1900, the said Mary Parmley in her own right, and as the guardian ad litem of Maude Parmley, who was of the age of twelve years, and William Parmley, of the age of five years, and Thomas Parmley, who was of the age of three years, filed a complaint in the district court of the Seventh judicial district in and for Carbon county, state of Utah, against the said Pleasant Valley Coal Company, to recover damages against it for the death of the said William Parmley; that on the 29th day of September, 1900, the defendant filed its answer to said complaint, and on October 8, 1900, judgment was rendered in said action upon a written offer to compromise the same, filed therein October 8, 1900, by the defendant Pleasant Valley Coal Company to permit judgment to be entered against it for the sum of $ 500, and on said date judgment in said sum of $ 500 was rendered in favor of the said plaintiffs and against the said defendant, together with costs taxed therein, and in pursuance of said offer in the sum of $ 33, which said judgment was thereafter paid by the said defendant; that the claims therefore of the said widow and the said children aforementioned, exclusive of this plaintiff, against the said defendant arising out of the death of the said William Parmley, were compromised and settled, but this plaintiff was not a party to the said action, and he has never compromised or settled his claim against the said defendant for the death of his father as herein alleged; that the death of the said deceased was caused solely through and on account of the negligence and carelessness of the defendant, in this," etc.

The acts and omissions constituting the alleged negligence of the defendant are then fully set forth and need not be repeated here.

It is then further alleged that at the time of the death of the deceased he was "a strong, able-bodied man capable of earning and did earn the sum of $ 125 per month," and by reason of the decedent's untimely death plaintiff was damaged, etc.

The defendant appeared and filed a demurrer to the complaint upon the grounds (1) that the complaint does not state a cause of action; (2) that it appears "upon the face of the complaint" that there is a defect of parties, in that "William Parmley, deceased, left surviving him heirs other than plaintiff," and said heirs are necessary parties to this action; (3) that the action is barred, setting forth the statute.

The district court sustained the demurrer "as to paragraphs 2 and 3." The plaintiff refusing to further amend his complaint, the court entered judgment dismissing the action. Plaintiff appeals and assigns the ruling of the court upon the demurrer as error.

It is more convenient for us to first consider the arguments and authorities presented by defendant in support of the demurrer and judgment. The defendant contends that under statutes like ours and similar ones the great weight of authority is to the effect that, where the right of action is given to the widow and the heirs or personal representatives of the deceased, the former may bring the action, and that if she does so, while she should join all of the heirs as plaintiff, yet, if she fails to do so, and the action proceeds to judgment in the absence of fraud or collusion on the part of the defendant in such action, the judgment is a bar, and no subsequent action can be maintained, although some or all of the heirs or children of the deceased are minors; and that the rule just stated applies to an unborn or posthumous child of the deceased. It is further argued that under the statute there is only one cause and one right of action which must be prosecuted for the benefit of all the heirs, and that, if the widow brings an action, she may compromise and settle the same, and that such compromise and settlement are binding upon all the heirs of the deceased, if the same is made in good faith and without fraud or collusion on the part of the widow and defendant in the action.

Upon the other hand, plaintiff's counsel contend that the judgment is not binding upon a minor heir who was not a party to the action; and at all events that it is not binding upon an unborn child who is the legitimate offspring of the deceased.

In view of the importance of the questions involved, and that they have not heretofore been considered by this court, we shall consider them somewhat at length.

Our statute, commonly known as Lord Campbell's Act, Comp. Laws Utah 1917, §§ 6504 and 6505, reads as follows:

"6504. A father, or, in case of his death or desertion of his family, the mother, may maintain an action for the death or injury of a minor child, when such injury or death is caused by the wrongful act or neglect of another; and a guardian may maintain an action for the injury or death of his ward, if the ward be of lawful age, when such injury or death is caused by the wrongful act or neglect of another, the action by the guardian to be prosecuted for the benefit of the heirs of the ward. Any such action may be maintained against the person causing the injury or death, or, if such person be employed by another person who is responsible for his conduct, also against such other person.

"6505. When the death of a person not a minor is caused by the wrongful act or neglect of another, his heirs, or his personal representatives for the benefit of his heirs, may maintain an action for damages against the person causing the death, or, if such person be employed by another person who is responsible for his conduct, then also against such other person. If such person have a guardian at the time of his death, only one action can be maintained for the injury to or death of such person, and such action may be brought by either the personal representatives of such adult person deceased for the benefit of his heirs, or by such guardian for the benefit of his heirs as provided in section 6504. In every action under this and the preceding section such damages may be given as under all the circumstances of the case may be just."

The foregoing sections were originally adopted from the Code of Civil Procedure of California (Cal. C. of C. P. §§ 376 and 377). They are first found as a part of the law of the Territory of Utah in Laws Utah 1884, p. 193, as sections 233 and 234. From thence they were carried into Comp. Laws Utah 1888 as sections 3178 and 3179, and from thence into the Revised Statutes of 1898 as sections 2911 and 2912. In 1901 (Laws Utah 1901, c. 46) the sections were amended to read as they now appear as sections 6504 and 6505, supra. So as to have the sections as originally enacted and as amended in 1901, clearly before the reader we have italicized all the words which were added to the sections in 1901. In reading the sections, by omitting the italicized words one reads them as originally adopted from the California Code, and with the italicized words as they were amended and as they now read and are in force and effect.

The plaintiff's father was killed in May, 1900. The sections were therefore in their original form as adopted from California and as the California statute has remained ever since. While we are clearly of the opinion that the amendment of 1901 did not effectuate any material change so far as the instant case is concerned, yet we have deemed it but fair to all to state the real facts concerning the changes in the statute and to point them out.

It will be observed, therefore, that the action by plaintiff's mother was commenced and prosecuted to judgment, and the judgment was paid under the provisions of the statute as originally adopted and before the amendments of 1901. Plaintiff's rights, therefore, vested under the original statute.

Much is said by counsel on both sides respecting the plaintiff's status at the time of his father's death and whether he could be considered as in esse or not. Our statute (Comp Laws Utah 1917, § 6426), so far as material here, provides: "Posthumous children are considered as living at the death of their parents." The plaintiff at the time of...