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

• Decision Date: 27 December 1912
• Citation: 128 P. 1070,71 Wash. 436
• Court: Washington Supreme Court
• Parties: THOMPSON et al. v. SEATTLE, R. & S. RY. CO.

128 P. 1070

71 Wash. 436

THOMPSON et al. v. SEATTLE, R. & S. RY. CO.

Supreme Court of Washington

December 27, 1912

Department 2. Appeal from Superior Court, King County; R. B. Albertson Judge.

Action by Phil D. Thompson and others against the Seattle, Renton &amp Southern Railway Company, a corporation. From judgment for plaintiffs, defendant appeals. Affirmed on condition of remittitur.

Kerr &amp McCord, of Seattle, for appellant.

Peters & Powell, of Seattle, for respondents.

FULLERTON J.

The appellant owns and operates a street and interurban railway system in the city of Seattle and territory adjacent thereto, and is a common carrier of passengers for hire. On April 30, 1910, one Elizabeth Bell, while a passenger on the appellant's railway, was injured in a collision occurring thereon, and thereafter commenced this action to recover for the injuries suffered. After commencing the action, and some nine months after receiving the injury, Mrs. Bell died, leaving surviving her as her sole heirs at law an adult daughter and two minor sons. Thereafter these heirs, the minors appearing by a guardian ad litem, applied to the court through their counsel for leave to prosecute the action to final judgment. The court granted the application over the objection of the appellant, and thereupon the applicants filed an amended and supplemental complaint, repeating the allegations of the original complaint filed by their mother, and alleging, in addition thereto, the fact of her death, their relationship to her, and that her death was occasioned by the injuries she received in the collision. A demurrer was interposed to the complaint, which the trial court overruled. An answer was thereupon filed which put in issue the material allegations of the complaint, and on the issues thus joined a trial was had to a jury which resulted in a verdict and judgment for the respondents in the sum of $10,000. This appeal is taken from the judgment entered.

The first assignments of error relied upon by the appellant challenge the right of the respondents to prosecute the action to judgment. It is contended that, since an action in tort for personal injuries at common law did not survive the death of the complainant, it is essential that some statutory authority authorizing such prosecution be found before it can be said that the right exists, and that in this state there is no such statute. The trial court found this authorization in that section of the Code (Rem. & Bal.) relating to the survival of actions, which reads as follows: 'Section 194. No action for a personal injury to any person occasioning his death shall abate, nor shall such right of action determine, by reason of such death, if he have a wife or child living, or leaving no wife or issue, if he have dependent upon him for support and resident within the United States at the time of his death, parents, sisters or minor brothers; but such action may be prosecuted, or commenced and prosecuted, in favor of such wife or in favor of the wife and children, or if no wife, in favor of such child or children, or if no wife or child or children, then in favor of his parents, sisters or minor brothers who may be dependent upon him for support, and resident in the United States at the time of his death.' It is insisted by the appellant, however, that this section has no reference to an action a female person may have begun for a personal injury, or a right of action she may have for such an injury, but refers solely to such rights as may pertain to a male person. It is argued that this is evidenced not only by the literal wording of the statute, since the masculine pronoun alone is used, but by its evident meaning, as its purpose was to provide for those dependent upon the injured person for support, and this duty usually devolves upon a male person. But we cannot accept this as a correct interpretation of the statute. That the use of the masculine pronoun was not intended to confine the right of survivorship to actions accruing to male persons alone is made clear by reference to the contemporaneous statutes relating to the civil and criminal procedure of which this section forms a part. By section 144, as it is numbered in Remington & Ballinger's Code, it is provided that the provisions of the Code shall be liberally construed, and shall not be limited by any rule of strict construction, and by section 148 it is provided that 'words importing the masculine gender may be extended to females also.' And other sections--for example sections 193, 198, 199, 200, 201, 203, 208, 211, 224, 238, 241, 247, and many more which only a casual reading will disclose--use the masculine pronoun to designate the persons affected by their provisions, when it is manifest by the context that persons of both sexes are included. These considerations make it clear that the mere use of the masculine pronoun in the section in question does not evidence an intent on the part of the Legislature to confine its provisions to male persons alone. The second reason suggested seems to us also to be without force. If the purpose of the statute is the protection of the children and the dependent collateral relatives of the injured person, this purpose is not accomplished by confining its provisions to children and dependent relatives of male persons alone. In this state as elsewhere, as it is well known, there are many dependent minor children whose sole support is a widowed mother, and who would be left to be cared for by charity or the bounty of the state if deprived of such support. It cannot be that the Legislature intended to leave children in this situation unprotected when legislating in behalf of dependent children generally. On the contrary, we would expect such to be the first to receive consideration rather than to be wholly neglected. We conclude, therefore, that the court did not err in allowing the action to be prosecuted to judgment by the respondents.

The appellant next contends that the evidence was insufficient to make a case for the jury on the issue that Mrs. Bell's death was caused by the injuries which she sustained in the accident. It was given in evidence and apparently conceded that the immediate cause of her death was pleurisy with effusion, and the appellant apparently argues that this was the proximate cause of her death. But clearly the proximate cause of her death was the cause that produced the pleurisy with effusion; that is to say, whether the pleurisy with effusion was or was not the result of the accident. On this question the most that can be said is that the evidence was conflicting. Being so, it was of course a question of fact for the jury and not one of law for the court. But it will serve no useful purpose to review the evidence. Our perusal of it has convinced us that there was evidence sufficient to sustain the verdict, and this is as far as we have a right to inquire.

Elizabeth Bell died in the state of Kentucky....