Rochester v. Seattle, R. & S. Ry. Co.

• Decision Date: 20 March 1912
• Citation: 122 P. 23,67 Wash. 545
• Court: Washington Supreme Court
• Parties: ROCHESTER v. SEATTLE, R. & S. RY. CO.

122 P. 23

67 Wash. 545

ROCHESTER v. SEATTLE, R. & S. RY. CO.

Supreme Court of Washington

March 20, 1912

Department 1. Appeal from Superior Court, King County; J. T. Ronald Judge.

Action by G. A. C. Rochester, as administrator of the estate of W C. Bell, deceased, against the Seattle, Renton & Southern Railway Company. From an order granting a new trial after a verdict for plaintiff, he appeals. Reversed, with directions to enter judgment on the verdict.

Peters & Powell, for appellant.

Morris B. Sachs, for respondent.

GOSE, J.

This action is prosecuted by the administrator of the estate of W C. Bell, deceased, for the recovery of damages sustained by his heirs in consequence of his death, which it is alleged was caused by the negligence of the defendant. There was a verdict for the plaintiff for $17,500. The court granted a new trial upon the sole ground that he had erred in instructing the jury that, in estimating damages, they could include such pecuniary loss as they might find from the evidence the minor son of the deceased would suffer after attaining his majority by reason of his father's death. The motion for a new trial was denied in all other respects. The plaintiff has appealed from the order granting a new trial.

On April 30, 1910, the respondent was operating an electric railway in the city of Seattle and between that city and the town of Renton. On the date stated the appellant's intestate lost his life in consequence of a collision between the respondent's passenger car upon which he was riding and one of its freight cars. At the trial of the case the negligence of the respondent was conceded, and the single question submitted to the jury was the measure of damages. The decedent was 46 years of age at the time of his death and his sole heir is a son 14 years of age who is not of normal mentality. He was a lawyer by profession, a resident of Harrodsburg, Ky. and had voluntarily retired from the circuit court bench of that state a few months before his untimely death, after having served a term of six years.

The single question presented by the appeal is whether the court erred in instructing the jury that they could allow such pecuniary loss as the evidence showed the son would sustain after his majority from the father's death. The cause of action is based upon the statute. Rem. & Bal. Code, § 183. The applicable part of the statute is 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. If the deceased leave no widow or issue, then his parents, sisters or minor brothers who may be dependent on 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.' The old statute (Bal. Code, § 4828) was amended by Laws of 1909, p. 425, by adding the words which we have italicized. We think the instruction is a correct interpretation of the statute, and that the court erred in granting a new trial. Indeed, we do not think the statute is susceptible of any other reasonable interpretation. To construe the statute in any other way would require us to read into the statute the word 'minor' before both the words 'heirs' and 'issue.' There is nothing in the statute to indicate in the remotest way that the law-making branch of the government intended such interpolation. Indeed, such construction would be an entire emasculation of the statute. It would lead to the absurd result that, under certain contingencies, an adult dependent sister would have a cause of action, while an adult dependent daughter would not have a cause of action. It cannot be doubted, we think, that even under the statute prior to the 1909 amendment the instruction would be correct. As amended, however, the statute is entirely free from doubt, unless we assume that the Legislature intended a limitation which it did not express in words. The fact that it made provision for minor dependent brothers shows clearly that the preceding words were advisedly used. One of two views must obtain. It must be held either that the word 'heirs,' in the first part of the statute embraces and defines the several classes, 'widow,' 'issue,' 'parents,' 'sister,' and 'minor brothers,' or that the words 'heirs' and 'widow or issue' are intended to be synonymous terms. In either case the instruction is correct.

The trial court granted the new trial because he was of the opinion that the construction put upon the old statute by this court enunciated a principle not in harmony with the instruction. The respondent takes a like view. The cases relied upon as announcing a view not in harmony with the instruction are Dahl v. Tibbals, 5 Wash. 259, 31 P. 868; Noble v. Seattle, 19 Wash. 133, 52 P. 1013, 40 L. R. A. 822; Manning v. Tacoma Ry. & Power Co., 34 Wash. 406, 75 P. 994. In the Dahl Case the action was prosecuted by the widow and minor children for the recovery of damages for wrongfully causing the death of the husband and father. The only question before the court was the capacity of the plaintiffs to maintain the action. The court, however, said: 'The sole object of such statutes is to give a right of action for damages in favor of, 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.' In the Noble Case it was held that there was no right of action in the father and mother for the wrongful death of an adult bachelor son. In that case, also, the court said that the right of action only existed in favor of those heirs to whom the deceased while living owed the legal duty of support. In the Manning Case the mother, the father being dead, sought to recover damages arising from the death of her adult bachelor son, alleging that his death resulted from the wrongful act of the defendant. It was held, upon the authority of the Noble Case, that she had no right of action. The court, however, took occasion to intimate that it did not think the Noble Case correctly interpreted the statute, but that it would adhere to it on the ground of stare decisis. It is apparent that the quotation from the Dahl Case is only dictum, and that the statement of the same nature in the Noble Case was not called for by the facts before the court. It is also apparent that the court was not called upon to meet the precise question before us in any of these cases. If it may be said that they involved a similar principle, a sufficient answer is: (1) That we are not disposed to extend the rule of these cases beyond their letter, and (2) that we are here construing the law as amended. The instruction is supported by the following cases from other jurisdiction where the cause of action was predicated upon the allegation that death was caused by the negligence of the defendant: Redfield v. Consolidated St. Ry. Co., 110 Cal. 277, 42 P. 822, 1063; Valente v. Sierra Ry. Co., 158 Cal. 412, 111 P. 95; Tuteur v. Chicago, etc., 77 Wis. 505, 46 N.W. 897; Tilley v. H. R. R. R. Co., 29 N.Y. 252, 86 Am. Dec. 297; Galveston, etc., v. Kutac, 72 Tex. 643, 11 S.W. 127; Beaumont Traction Co. v. Dilworth (Tex. Civ. App.) 94 S.W. 352; Paris, etc., Ry. Co. v. Robinson (Tex. Civ. App.) 127 S.W. 294; Missouri, etc., v. Butts (Tex. Civ. App.) 132 S.W. 88; Demarest v. Little, 47 N. J. Law, 28; Kansas, etc., v. Frost, 93 Ark. 183, 124 S.W. 749; Petrie v. Col. & G. R. Co., 29 S.C. 303, 7 S.E. 515; Baltimore, etc., v. State, 63 Md. 135; Lazelle v. Town of Newfane, 70 Vt. 440, 41 A. 511; Duzan v. Myers, 30 Ind.App. 227, 65 N.E. 1046, 96 Am. St. Rep. 341; Butte Elec. Ry. Co. v. Jones, 164 F. 308, 90 C. C. A. 240, 18 L. R. A. (N. S.) 1205 (9th Ct.).

The Redfield Case was prosecuted by the husband and minor children for damages arising from the death of the wife and mother. The California Statute (Code of Civil Procedure, § 377) upon which the cause of action was rested gave a right of action in such cases to the 'heirs or personal representatives' of the deceased. In that case the following instruction was approved: 'The pecuniary interest of children in the lives of their parents does not necessarily end with their arrival at the age of majority but you may allow for the probable loss of any benefit, if any, of a pecuniary value, which the child would probably receive from its mother after its arrival at majority.' The court said, in commenting upon the instruction: 'Besides, the statute does not limit the right to prosecute the action or to recover damages to minor children or minor heirs.' In the Valenti Case the California court again ruled that the statute does not limit the right of recovery to...