State v. Vinther, 24324.

• Decision Date: 15 February 1934
• Docket Number: 24324.
• Citation: 29 P.2d 693,176 Wash. 391
• Court: Washington Supreme Court
• Parties: STATE v. VINTHER.

29 P.2d 693

176 Wash. 391

STATE v. VINTHER.

No. 24324.

Supreme Court of Washington

February 15, 1934

Department 2.

Appeal from Superior Court, Spokane County; Fred H. Witt, Judge.

Action by the State against Newton Vinther. From a judgment dismissing the action, plaintiff appeals.

Reversed and case remanded, with directions.

G. W Hamilton, Browder Brown, and V. D. Bradeson, all of Olympia for the State.

Danson Lowe & Danson, of Spokane, for respondent.

GERAGHTY Justice.

This action was brought by the state of Washington to recover from the defendant, Vinther, an amount equal to the liability imposed upon the accident fund of the state under the Workmen's Compensation Act for the death of Valentine J. McNaught Davis. The complaint alleged that Vinther, by the negligent operation of an automobile on the streets of the city of Spokane, caused the death of Davis, then engaged in an extrahazardous employment; that Davis left surviving him a widow and two minor children; that the widow, for herself and children, elected to take the benefits provide by the Workmen's Compensation Act, pursuant to the provisions of section 7675, Rem. Rev. Stat. and assigned to the state, for the benefit of the accident fund, all rights and causes of action arising out of the accident; that the Department of Labor and Industries allowed her claim; and that the financial obligation assumed by the accident fund was $6,731.35, for which sum a judgment was asked against the defendant. A demurrer to the complaint was sustained by the trial court, upon the ground that the action had not been begun within the time limited by law. The plaintiff refusing to plead further, judgment was entered dismissing the action, from which judgment this appeal is taken.

This action is brought by the appellant under section 7675, Rem. Rev. Stat., which reads in part as follows: '* * * Provided, however, That if the injury to a workman is due to the negligence or wrong of another not in the same employ, the injured workman, or if death result from the injury, his widow, children, or dependents, as the case may be, shall elect whether to take under this act or seek a remedy against such other, such election to be in advance of any suit under this section; and if he take under this act, the cause of action against such other shall be assigned to the state for the benefit of the accident fund; if the other choice is made, the accident fund shall contribute only the deficiency, if any, between the amount of recovery against such third person actually collected, and the compensation provided or estimated by this act for such case: Provided, however, That no action may be brought against any employer or any workman under this act as a third person if at the time of the accident such employer or such workman was in the course of any extra-hazardous employment under this act. Any such cause of action assigned to the state may be prosecuted or compromised by the department, in its discretion. Any compromise by the workman of any such suit, which would leave a deficiency to be made good out of the accident fund, may be made only with the written approval of the department.'

The right of the state to take an assignment and sue under the provisions of this section has been sustained by this court, and is not challenged here by the respondent. The sole question involved is whether the statute of limitations will run against the state in a suit to recover upon an assigned claim. The answer to this question, in turn, is dependent upon the further question whether the state, in suing for the benefit of the accident fund, is acting in its sovereign capacity in furtherance of its public policy, or merely suing in its own name for the benefit of private individuals--the contributors to the accident fund. That the sovereign state can neither be sued nor debarred from suing in its own courts without its consent is an accepted principle of law needing no citation of authorities for its support. This is so in the absence of statute, but section 167, Rem. Rev. Stat., specifically provides: '* * * That there shall be no limitation to actions brought in the name or for the benefit of the state, and no claim of right predicated upon the lapse of time shall ever be asserted against the state.'

There is a qualification of the rule exempting the state from the operation of the statute of limitations as well founded in authority as the rule itself, to the effect that the statute will apply when the state is a mere formal plaintiff in a suit, not for the purpose of asserting any public right or protecting any public interest, but merely to form a conduit through which one private person can conduct litigation against another private person. United States v. Beebe, 127 U.S. 338, 8 S.Ct. 1083, 32 L.Ed. 121; United States v. Fletcher (C. C. A.) 242 F. 818. It is upon this qualification of the general rule that the respondent relies to sustain the judgment of the trial court. Foregoing, as unnecessary to our decision, any emphasis upon the broad language of the statute, 'there shall be no limitation to actions brought in the name or for the benefit of the state,' the question can be disposed of by application of the general rule. The first section of the Workmen's Compensation Act defines its purpose in the following language:

'The common-law system governing the remedy of workmen against employers for injuries received in hazardous work is inconsistent with modern industrial conditions. In practice it proves to be economically unwise and unfair. Its administration has produced the result that little of the cost of the employer has reached the workman and that little only at large expense to the public. The remedy of the workman has been uncertain, slow and inadequate. Injuries in such works, formerly occasional, have become frequent and inevitable. The welfare of the state depends upon its industries, and even more upon the welfare of its wage worker. The state of Washington, therefore, exercising herein its police and sovereign power, declares that all phases of the premises are withdrawn from private controversy, and sure and certain relief for workmen, injured in extrahazardous work, and their families and dependents is hereby provided regardless of questions of fault and to the exclusion of every other remedy, proceeding or compensation, except as otherwise provided in

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