Puget Sound Traction, Light & Power Co. v. Frescoln

• Decision Date: 01 October 1917
• Docket Number: 2887.
• Citation: 245 F. 301
• Parties: PUGET SOUND TRACTION, LIGHT & POWER CO. v. FRESCOLN.
• Court: U.S. Court of Appeals — Ninth Circuit

245 F. 301

PUGET SOUND TRACTION, LIGHT & POWER CO. v. FRESCOLN.

No. 2887.

United States Court of Appeals, Ninth Circuit.

October 1, 1917

James B. Howe and H. S. Elliott, both of Seattle, Wash., for plaintiff in error.

Thomas H. Bain, of Seattle, Wash., for defendant in error.

Before GILBERT and HUNT, Circuit Judges, and WOLVERTON, District judge.

HUNT Circuit Judge (after stating the facts as above).

From the foregoing statement the question for decision is whether under the statutes of Washington, where one receives personal injuries as the result of the negligence of another and during his life begins an action to recover therefor, but before trial dies as a result of the injuries inflicted, and his widow, as administratrix and in her own right, revives and carries on such action for personal injuries to judgment an independent action for wrongful death will lie in favor of the widow. The statutes of the state which have to do with the matter are as follows (Remington & Ballinger's Codes vol. 1):

'Sec. 183. (4828.) * * * 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. * * * In every such action the jury may give such damages, as under all circumstances of the case may to them seem just.

'Sec. 194. (4838.) 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.'

Defendant's contention is that under the statutes quoted the beneficiaries are the same, and that the same parties plaintiff are not entitled to recover for the same wrongful act, and that to permit two recoveries would be to permit double damages to be assessed against the wrongdoer, in that it would permit a recovery of the full amount of damages sustained by the deceased, and then a second recovery by the same individuals for the damages resulting to them from the death of the deceased. In their argument counsel for the defendant say that in the states where two concurrent actions are permitted they are maintained in two different and distinct rights, in that the action under the survival statute is brought by the personal representative for the benefit of the estate of the deceased, while the action under the death statute is brought by or for the benefit of the heirs expressly mentioned in the various death statutes; and further that, inasmuch as there is no provision in the state of Washington whereby the one statute makes the estate of the deceased the beneficiaries and the other certain heirs the beneficiary, there is a vital distinction between the statutes of Washington and those of states where two concurrent actions are allowed.

In support of its position defendant cites, among other cases Riggs v. Northern Pacific Railway, 60 Wash. 292, 111 P. 162, and Longfellow v. Seattle, 76 Wash. 509, 136 P. 855. But an examination of these decisions shows that in the former the court went no further than to hold that the beneficiaries under the death act of the state of Washington could not split their actions, and in the latter that the statutes, so far as they coincided, meant to afford separate and coexistent remedies, permitting one recovery for the one death rather than cumulative recoveries. Clearly, therefore, they are not decisive of the point involved in the...