Robinson v. Baltimore & S. Min. & Reduction Co.

• Decision Date: 06 December 1901
• Citation: 26 Wash. 484,67 P. 274
• Court: Washington Supreme Court
• Parties: ROBINSON et al. v. BALTIMORE & S. MINING & REDUCTION CO.

67 P. 274

26 Wash. 484

ROBINSON et al. v. BALTIMORE & S. MINING & REDUCTION CO.

Supreme Court of Washington

December 6, 1901

Appeal from superior court, King county; O. Jacobs, Judge.

Action by Lillian M. Robinson and another against the Baltimore &amp Seattle Mining & Reduction Company. From a judgment for defendant, plaintiffs appeal. Reversed.

Richard Gowan and Preston, Carr & Gilman, for appellants.

Piles Donworth & Howe, for respondent.

WHITE, J.

This is an appeal from a final judgment sustaining a demurrer to plaintiffs' complaint, dismissing the action, and awarding costs to defendant. The demurrer is on the following grounds: (1) That it appears upon the face of the complaint that the above-entitled action has not been commenced within the time limited by law; (2) that it appears upon the face of the complaint that the above-entitled action was not commenced within two years after the death of Ralph W Robinson; (3) that it appears upon the face of the complaint that the complaint does not state facts sufficient to constitute a cause of action. The action was brought by Lillian M. Robinson as the surviving widow of Ralph W Robinson and as guardian ad litem of Clifford R. Robinson infant child of said Lillian and Ralph W., to recover damages for the death of Ralph W. Robinson, alleged to have been occasioned by the negligence of the defendant. Plaintiff Clifford Ralph Robinson is an infant of the age of four years. On the 9th day of August, 1900, by order of the superior court of King county, the plaintiff Lilliam M Robinson was appointed guardian ad litem of the said Clifford Ralph Robinson for the purpose of prosecuting this action, which was commenced on the 9th day of August, 1900, as appears from the clerk's file mark on the complaint. It is alleged in the complaint that the death of said Ralph W. Robinson occurred on the 27th day of July, 1898, or 2 years and 13 days prior to the commencement of this action. The sole ground urged against the complaint in the briefs is that the action was barred by the statute of limitations, the respondent contending that two years is the time limited in which the action might be brought, and the appellants contending that three years is the time in which the action could be brought. It is conceded that the right of action for damages for injuries resulting in death is purely statutory, and that at common law no such action could be maintained. In 1854 the legislature of the territory of Washington, in an act entitled 'An act to regulate the practice and proceedings in civil actions,' declared: '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 and child living; 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.' Laws 1854, p. 220, § 495. This act was re-enacted in 1863 (Laws 1862-63, p. 195, § 536); was re-enacted in 1869 (Laws 1869, p. 6, § 18); was re-enacted in 1873 (Laws 1873, p. 6, § 18); was codified in the Laws of 1881, p. 37, § 18, and is the same section as section 4838, Ballinger's Ann. Codes & St. In 1854 the legislature of the territory of Washington, in an act entitled 'An act regulating the time within which civil actions may be commenced,' declared that actions could only be commenced within the following periods after the cause of action shall have accrued (section 4): 'Within three years: * * * 2d. An action for taking, detaining or injuring personal property including an action for the specific recovery thereof, or for any other injury to the person or rights of another, not hereinafter enumerated.' Section 7: 'An action for relief not hereinbefore provided for shall be commenced within two years after the cause of action shall have accrued.' Laws 1854, pp. 362-364, §§ 1, 4, 7. These various provisions were re-enacted in 1863 (Laws 1862-63, pp. 85-87, §§ 16, 19, 22), were re-enacted in 1869 (Laws 1869, p. 89, §§ 25, 28, 32), were codified in the Laws of 1881, pp. 39, 40, §§ 25, 28, 33, and are sections 4796, 4800, 4805, Ballinger's Ann. Codes & St. It is a well-known principle of law that when a statute is re-enacted it is but a continuance of the law as first enacted. Mudgett v. Liebes, 14 Wash. 482, 45 P. 19. As early as 1854 the legislature had provided that for personal injuries occasioning the death of a husband and father a right of action existed and might be commenced and prosecuted in favor of the wife and children. At the same time it was also provided that for any 'injury to the person or rights of another' (section 4) the action should be commenced within three years after the cause of action should have accrued. Section 7 of the act of 1854, providing a two-years period for actions for relief not before provided for, had no relation to actions for an 'injury to the person or rights of another,' for that was a matter before provided for. As the mere re-enactment of these statutes is but a continuance of the law as it was when first enacted, it follows that section 4805, Ballinger's Ann. Codes & St., has no relation to actions for injuries to the person or rights of another, provided for by section 4800; that section and section 4805 being but sections 4 and 7 of the Laws of 1854. The respondent says that the right of action for death by wrongful act was first given in 1860 (Laws 1869, p. 165, § 658), and the appellants say that at the time of the enactment of the original statute of limitations in 1854 there existed no authority for bringing an action for death by wrongful act. Both respondent and appellants are in error, and seem to have overlooked section 495, p. 220, Laws 1854, which, we think, clearly gave a right of action for injuries occasioning death. This law was enacted simultaneously with or prior to the statute of limitations of 1854. By the death of the husband and father the plaintiffs in this action were injured in their rights. They had a right to look to the person killed by the accident for support and maintenance, and it was for this reason that the wife and children were given the right under section 495, p. 220, Laws 1854, to commence and prosecute an action after the death of the injured husband and father. We have heretofore held that 'the sole object of such statutes is to give a right of action for damages in favor or for the benefit of those who may be deprived of support and maintenance by death caused by the wrongful act or omission of another.' Dahl v. Tibbals, 5 Wash. 259, 31 P. 868. Section 495, p. 220, Laws 1854, nowhere limits the injury to the person suing, and there is no reason for so limiting it. The words 'injury to the person' apply as well to an injury to the deceased father and husband, for which the plaintiffs seek to recover, as an injury to the persons of the plaintiffs themselves. The action is not for an injury to the persons of the plaintiffs, but the gravamen of the action is negligence of the defendant causing the death of the deceased; or, in other words, 'an injury to the person of another.' One case comes as squarely within the terms of the statute as does the other. This section clearly means an injury to the person of another when that other is the plaintiff himself, or when that other is the injured party who has since died, and the action is being prosecuted by his widow and children. O'Kief v. Railroad Co. (Ala.) 12 So. 454; Sheffield v. Harris (Ala.) 20 So. 955. In 1869 (Laws 1869, p. 165, § 658)...