Thoma v. C. J. Montag & Sons, Inc.

Decision Date09 April 1959
Docket Number34649,Nos. 34566,s. 34566
CourtWashington Supreme Court
PartiesRuth THOMA, Administratrix of the Estate of Frank C. Thoma, deceased, Respondent, v. C. J. MONTAG & SONS, INC., a Washington corporation; Carl M. Halvorsen, Inc., an Oregon corporation; McLaughlin, Inc., a Montana corporation; Austin Construction Co., a Washington corporation; and Babler Brothers, Inc., an Oregon corporation, all doing business as Montag, Halvorsen, Austin and Associates, a joint venture, Appellants (two cases). Ruth THOMA, Administratrix of the Estate of Frank C. Thoma, deceased, Appellant, v. C. J. MONTAG & SONS, INC., a Washington corporation; Carl M. Halvorsen, Inc., an Oregon corporation; McLaughlin, Inc., a Montana corporation; Austin Construction Co., a Washington corporation; and Babler Brothers, Inc., an Oregon corporation, all doing business as Montag, Halvorsen, Austin and Associates, a joint venture, Respondents.

Minnick & Hahner, Walla Walla, Vaughn E. Evans, Seattle, for C. J. Montag & Sons, Inc., et al.

Critchlow & Williams, Richland, for Ruth Thoma.

Grant Armstrong, Chehalis, Nickell, Fitch, Stinnette & McAteer, William S. Stinnette, Seattle, Holman, Mickelwait, Marion, Black & Perkins, Fred S. Merritt, Richard E. Williams, Seattle, amici curiae.

FOSTER, Justice.

Plaintiff sued C. J. Montag & Sons, Inc., a Washington corporation; Carl M. Halvorsen, Inc., an Oregon corporation; McLaughlin, Inc., a Montana corporation; Austin Construction Company, a Washington corporation; and Babler Brothers, Inc., an Oregon corporation, all doing business as Montag, Halvorsen, Austin and Associates, a joint venture, for wrongful death.

Plaintiff alleged that she was the duly appointed, qualified and acting administratrix of the estate of her deceased husband. Plaintiff appeals from an order abating the action. Defendants separately appeal from a denial of their motion for summary judgment. All parties have stipulated for consolidation here, and, for simplification, they are referred to as plaintiff and defendants.

The complaint contains a well-pleaded cause of action for death by wrongful act, and specifically alleges that the deceased at the time of the fatal accident, was not in the course of his employment nor performing any duty for the defendants, was not under their control, and was not receiving compensation. 1 This was the only pleading before the court at the time of the entry of the order abating the action. All of the defendants jointly moved for summary judgment, which motion was supported by affidavits containing extracts and portions of the record of the department of labor and industries. That motion contained, in the alternative, a separate plea in abatement. The action was abated October 17, 1957. On the same day, the defendants filed an answer containing an affirmative defense setting out the filing and allowance of the industrial insurance claim to which the plaintiff had had no opportunity to reply with the action was abated.

If pleaded by the plaintiff in her reply, the following matters, appearing from the showing on the motion, would raise an issue of constructive fraud:

Ruth Thoma, for herself individually, filed a claim for a widow's pension under the industrial insurance act.

The widow's claim was allowed and warrants mailed her within a month after her husband's death on March 29, 1957. The unverified claim of the widow was filed April 3, 1957, although the form employed contains the usual verification clause. The circumstances under which the widow was impelled to sign the claim or who filled it out are undisclosed, but she was then unaware of her rights. It appears beyond peradvanture that, upon being advised by her own counsel, she withdrew her claim and promptly instituted the present action.

An interoffice communication dated April 12, 1957, from the district supervisor of the department of labor and industries to the supervisor of claims, omitting the formal portions, is as follows:

'In reference to your assignment of April 5, 1957, we have contacted Dick Kimball who represents the employer, and Ray Sutherland who is business representative for Laborers Local number 348, Pasco, Washington, and their answers to the questions that you raised in your assignment are next attached.

'Also, please find attached, labor agreement which was in effect at the time of the fatal accident. As far as can be determined, these are true facts. If any further information is desired, please advise.'

The answer of the representative of the employer is not set out, nor is that of the business representative of the labor union involved. There is a longhand memorandum attached from someone in the industrial insurance division, which, omitting formal parts, is as follows:

'This is a close one but I believe that it should be allowed. I would suggest however that B. Johnson opinion should be obtained before our action is taken.'

Another interoffice communication is as follows:

'Department of Labor and Industries

Interoffice Communication

'To: R. J. McLean

From: Bernard A. Johnson

Subject: Frank H. Thoma (Dec'd) C-405208-3

Date: April 17, 1957

Office: Olympia

'A review has been made of the subject claim file regarding the claim for a widow's pension by Ruth L. Thoma, surviving spouse of the deceased workman.

'It appears clear from the statements of Dick Kimball, Safety Engineer, and Ray Sutherland, Business Representative, Laborers Local No. 348, that under the labor agreement, the workmen are paid for their lunch period and this fact would render such workmen in the course and scope of their employment for the entire working shift.

'It is, therefore, recommended that the claim for a widow's pension be allowed. The file is returned herewith.

'BAJ:J

'Very truly yours,

Bernard A. Johnson [s]

Bernard A. Johnson

Legal Division.'

There is a very substantial conflict in the conclusions in this informal memorandum with our noon-hour cases, D'Amico v. Conguista, 24 Wash.2d 674, 167 P.2d 157, and Young v. Department of Labor & Industries, 200 Wash. 138, 93 P.2d 337, 123 A.L.R. 1171.

Eighteen days after the death the widow's claim was allowed, and on April 24, 1957, warrants were mailed to her covering the initial industrial insurance benefits. Thereafter, upon being advised of the institution of this action, the department of labor and industries suspended the allowance of the claim by order dated May 6, 1957, which order, omitting formal parts, is as follows:

'Whereas this claim was allowed and approved for payment by order dated April 17, 1957, and

'Whereas the surviving widow is alleging that the deceased was not in the course of employment at the time of his death and that his death was due to wrongful neglect and, therefore, is instituting civil action for recovery;

'It is therefore ordered that the aforesaid order be held in abeyance pending the decision of the court.'

Such order was within the sixty days allowed by law for the taking of an appeal.

The action was abated without evidence and without opportunity on the part of the plaintiff to present the facts.

Such matters if pleaded by the plaintiff in reply, as is her right, would raise an issue of fact in addition to the issue of law. The facts urged in support of the special plea in abatement can be brought before the court only by answer, and the only manner in which issue may be joined is by reply.

RCW 4.32.210 is as follows:

'When the answer contains new matter, constituting a defense or counterclaim, the plaintiff may reply to such new matter, denying generally or specifically each allegation controverted by him, or any knowledge or information thereof sufficient to form a belief; and he may allege in ordinary and concise language, without repetition, any new matter not inconsistent with the complaint, constituting a defense to such new matter in the answer.'

Common-law pleading never existed in the territory of Washington. It was abolished by the first territorial legislature. Laws of 1854, chapter 5, § 36, p. 138; Rem.Rev.Stat. § 255; RCW 4.32.010. The separate plea in abatement does not and never did exist in Washington. Wallin v. Massachusetts Bonding & Ins. Co., 152 Wash. 272, 277 P. 999. Such matters must be raised by answer. Wallin v. Massachusetts Bonding & Ins. Co., supra.

Under the Field code, which is the only form of pleading ever known in either the territory or the state of Washington, the only pleadings upon the part of a defendant are (1) the demurrer, and (2) the answer. RCW 4.32.020; Laws of 1854, § 37, p. 139.

RCW 4.32.080 (Laws of 1854, § 44, p. 139) provides that the answer must contain (1) a general or specific denial, and (2) a statement of any new matter constituting a defense or counterclaim.

Judge Clark (Clark on Code Pleading, 2d Ed., pp. 601-603) declares that the common-law plea in abatement was abolished by the Field code and survives in only two code states, Connecticut and Indiana. Such is the substance of our decision in Wallin v. Massachusetts Bonding & Ins. Co., supra.

Defendants moved for summary judgment, and both parties filed affidavits concerning their respective contentions. The summary judgment procedure authorizes a speaking motion for the purpose of such motion only. Rule of Pleading, Practice and Procedure 19, 34A Wash.2d 81 as amended, effective November 1, 1955. Otherwise, our procedure abhors speaking motions and demurrers. Defects not appearing upon the face of a pleading may not be raised by motion or demurrer but must be pleaded by answer or reply according to the circumstance. Affidavist in support of, or in opposition to, a plea in abatement are unauthorized.

The summary judgment device may not be used to try a question of fact but is limited to those instances in which there is no genuine dispute of fact. Moore declares:

'The function of the summary judgment is to avoid a useless trial; and a trial is not only not...

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