Ryan v. Poole

• Decision Date: 24 July 1935
• Docket Number: 25428.
• Parties: RYAN v. POOLE et al.
• Court: Washington Supreme Court

47 P.2d 981

182 Wash. 532

RYAN v. POOLE et al.

No. 25428.

Supreme Court of Washington

July 24, 1935

Department 1.

Appeal from Superior Court, Pierce County; W. O. Chapman, Judge.

Action by Gladys M. Ryan, as administratrix of the estate of Emmett C. Ryan, deceased, against Frank L. Poole and others. From a judgment dismissing the action, plaintiff appeals.

Affirmed.

Vanderveer & Bassett, of Seattle, and J. W. Selden, of Tacoma, for appellant.

E. N Eisenhower and S. A. Gagliardi, both of Tacoma, for respondents.

MAIN Justice.

The plaintiff brought this action to recover damages for wrongful death. To the amended complaint, which will be referred to as the complaint, a demurrer, upon the ground that the complaint did not state facts sufficient to constitute a cause of action, was interposed and sustained. The plaintiff refused to plead further and elected to stand upon the complaint, and from the judgment dismissing the action appeals.

The facts, as stated in the complaint, may be summarized as follows: The appellant is the widow, and the duly appointed, qualified, and acting administratrix of the estate, of Emmett C. Ryan, deceased, and, as such, brings this action on behalf of herself and her minor daughter. The respondents are a number of corporations, individuals, and copartnerships engaged in the business of selling milk and other dairy products, in Pierce county, this state. It is alleged that, for the unlawful purpose of limiting competition in their business and controlling prices of their products, the respondents organized themselves as a voluntary association under the name of the Tacoma Milk Distributors Association, and employed the respondent Frank L. Poole as manager of such association. In furtherance of the purposes of the Tacoma Milk Distributors Association, Poole acting in his capacity as manager thereof, employed Emmett C. Ryan deceased, to follow the milk delivery trucks of the Delicious Dairy on its delivery routes and thereby learn the names and addresses of the customers, and to solicit such customers of the Delicious Dairy to transfer their business to one of the respondents. Ryan, in the capacity in which he was employed was to dynamite the premises of the Delicious Dairy and destroy its delivery trucks and their contents, and '* * * more specifically did employ said Ryan to waylay one Jack Anderson near the Miller Ranch in the vicinity of Fife Pierce County, Washington, where said Jack Anderson was to secure milk for said Delicious Dairy; and to take possession of his truck and to run the same with its contents into the Puyallup River notwithstanding the fact that the defendants well knew that as a result of other depredations committed by the defendants against said Delicious Dairy and its property, the employers of said dairy, and particularly the said Jack Anderson, had armed themselves with revolvers and other weapons for the purpose of resisting, and defending themselves and the property of said dairy against such unlawful acts. That on the 13th of November 1932, pursuant to said employment said Emmett C. Ryan did attempt to waylay Jack Anderson and take possession of his truck for the purposes aforesaid, and as a natural and proximate result said Jack Anderson, acting in the lawful defense of his person and property, shot and killed Emmett C. Ryan.'

As already indicated, the appellant, as administratrix of the estate of her deceased husband brought this action on behalf of herself and minor daughter for damages.

The common law gave no right of action for wrongful death. In England, as well as throughout the United States, the subject is controlled by statutes which vary some in their provisions. Lord Campbell's Act (9-10 Victoria 1846) was the first that gave a right of action for wrongful death. It provided that, whensoever the death of a person should be caused by wrongful act, neglect, or default, 'and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof,' then and in every such case the person who would have been liable if death had not ensued shall be liable to an action for damages notwithstanding the death of the person injured.

Rem. Rev. Stat. § 183, which is the wrongful death act, provides that, when the death of the person is caused by the wrongful act, neglect, or default of another, 'his personal representative may maintain an action for damages against the person causing the death; and although the death shall have been caused under such circumstances as amount, in law, to a felony.'

It will be observed that there is no provision in this act, like that quoted from Lord Campbell's Act which states that the act, neglect, or default must be such that would, if death had not ensued, entitle the party injured to maintain an action for damages for injuries which he had sustained. In construing the act of this state, the federal Circuit Court of Appeals for the Ninth Circuit, in the case of Northern Pacific R. Co. v. Adams (C. C. A.) 116 F. 324, held that the right of the heirs or personal representatives of a person, whose death was caused by the wrongful act, neglect, or default of another, to recover damages was not dependent upon the right of the deceased to maintain an action for his injuries had he survived the act which caused his death. That court was of the view that there was a material distinction between the statute of this state and Lord Campbell's Act by reason of the fact that the act of this state did not contain the above-quoted provision from Lord Campbell's Act. That case, however, was taken to the federal Supreme Court for review ( Northern Pacific R. Co. v. Adams, 192 U.S. 440, 24 S.Ct. 408, 409, 48 L.Ed. 513), and that court disapproved of the holding of the Circuit Court of Appeals and held that, under the statute of this state, the heirs or personal representatives can...