St. Germain v. Potlatch Lumber Co.

• Decision Date: 21 October 1913
• Citation: 76 Wash. 102,135 P. 804
• Parties: ST. GERMAIN v. POTLATCH LUMBER CO.
• Court: Washington Supreme Court

135 P. 804

76 Wash. 102

ST. GERMAIN v. POTLATCH LUMBER CO.

Supreme Court of Washington

October 21, 1913

Department 2. Appeal from Superior Court, Spokane County; Wm. A. Huneke Judge.

Action by Delia St. Germain against the Potlatch Lumber Company. Judgment for the plaintiff, and defendant appeals. Affirmed.

Cannon Ferris & Swan, of Spokane, for appellant.

Graves, Kizer & Graves, of Spokane, for respondent.

FULLERTON, J.

Albert St. Germain, while in the employment of the appellant Potlatch Lumber Company, as a brakeman on its logging railway in the state of Idaho, was run over by a locomotive engine and killed. St. Germain was at the time of his death 26 years of age, and unmarried. The respondent is his mother and only heir. She conceived that his death was caused by the wrongful act and neglect of the appellant, and instituted this action to recover therefor. At the trial in the court below the jury returned a verdict in her favor in the sum of $6,000. On a motion for a new trial the court gave the respondent the option of taking a judgment in the sum of $2,000 or submitting to a new trial. The respondent elected to take the judgment, and judgment was thereupon entered in her favor for that sum. The lumber company appeals.

The section of the statutes of the state of Idaho on which the respondent relies to maintain her cause of action reads as follows: 'When the death of a person, not being a minor 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; or if such person be employed by another person who is responsible for his conduct, then also against such other person. 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.' Rev. Codes,§ 4100. The appellant concedes that this provision of the statute is sufficient to warrant the maintenance of the action, if it still remains a part of the state law, but it contends that it is no longer a part of such law; that it was repealed by the act of the Legislature of the state of Idaho of March 6, 1909 (Session Laws, Idaho, 1909, p. 34). It is unnecessary to set out the session law at length, as an epitome of its provisions will make clear the point involved. Its first section provides that every 'employer of labor in and about a railroad,' and certain other specially enumerated industries, shall be liable to his employé or servant for a personal injury received by such servant or employé in the service of such master or employer when such employé or servant was at the time in the exercise of due care and diligence 'in the following cases.' Then follows an enumeration of the conditions on which the liability of the master or employer attaches, creating a wider liability on the part of the employer than he is subjected to under the common law. The second and succeeding sections provide who may maintain the action in case of the death of the person injured; limit the amount of recovery in an action brought for an injury causing death; provide for notice to the employer of time, place, and cause of injury, as a condition precedent to maintaining an action; and prescribe a special limitation as to the time an action therein provided for may be commenced.

The later statute does not expressly repeal the prior statute and if there is a repeal at all, it is a repeal by implication. But repeals by implication are not favored, and the courts give such repeals effect only where there is an irreconcilable repugnancy between the earlier and the later act, or where it is clear that the later act was intended by the Legislature to supersede all prior laws relating to the subject in hand, and to comprise in itself the sole and complete system of legislation on the particular subject. That there is no such repugnancy between the acts here in question is at once apparent. The first act relates to deaths caused by the wrongful act or neglect of another generally, and without regard to the relations of the parties, or the circumstances and conditions giving rise to the death, and leaves the common-law rules, if they be so called, affecting the right of recovery in full force and effect. The second act relates entirely to injuries and deaths by wrongful or negligent acts occurring where the relation of master and servant exists between the parties, and makes changes in the rules of the common law affecting the right of recovery, taking away defenses that were available to the master under that procedure. The scope of the second act is therefore much narrower than the first one, and if it is to be held to repeal the first act in toto, there will exist many instances of death by wrongful or negligent acts for which the law of the state affords no remedy. Nor is there anything in the later act that indicates a partial repeal. True it provides for the repeal of all acts in conflict with it, but this means simply that no prior act shall be held to...