Walton v. Absher Const. Co., Inc.

• Decision Date: 16 February 1984
• Docket Number: No. 49771-1,49771-1
• Court: Washington Supreme Court
• Parties: Velma Jane WALTON, as Personal Representative of the Estate of Charles W. Walton, Sr., Appellant, v. ABSHER CONSTRUCTION CO., INC., Respondent, and McKinstry Co., Inc., Defendant, and ABSHER CONSTRUCTION CO., INC., Third-Party Plaintiff, v. CROWN ROOFING & SHEET METAL, INC., and Tahoma Roofing Co., Inc., Third-Party Defendants.

Page 238

101 Wn.2d 238

676 P.2d 1002

Velma Jane WALTON, as Personal Representative of the Estate

of Charles W. Walton, Sr., Appellant, v. ABSHER CONSTRUCTION CO., INC., Respondent, and McKinstry Co., Inc., Defendant, and ABSHER CONSTRUCTION CO., INC., Third-Party Plaintiff, v. CROWN ROOFING & SHEET METAL, INC., and Tahoma Roofing Co., Inc., Third-Party Defendants.

No. 49771-1.

Supreme Court of Washington,

En Banc.

Feb. 16, 1984.

Dolack, Hansler, Hulscher, Burrows, Dayhoff & Barline, Gerald Hulscher, Tacoma, Miracle, Pruzan & Nelson, Howard Pruzan, Seattle, for appellant.

Burgess, Kennedy & Fitzer, P.S., F. Ross Burgess, Tacoma, for respondent.

Bryan Harnetiaux, Winston & Cashatt, Robert Whaley, Spokane, amicus curiae for appellant.

Halverson, Applegate & McDonald, Bryan Evenson, Yakima, amicus curiae for respondent.

DORE, Justice.

Plaintiff in a wrongful death/survival action appeals the trial court's partial summary judgment dismissing her claim for damages for decedent's pain and suffering between the time of injury and the time of death. The issue is: Are the decedent's pain and suffering recoverable elements of damages under the special survival statute, RCW 4.20.060.

Charles H. Walton died from injuries received in a fall at a construction site where he was employed. Petitioner, Velma Jane Walton, brought this action on behalf of herself, the estate, and the Walton children, seeking damages from respondent Absher Construction Company under the wrongful death statutes, RCW 4.20.010 and RCW 4.20.020, and survival statutes, RCW 4.20.046 and RCW 4.20.060. The complaint alleged:

As a proximate result of the above described wrongful acts of the defendants, decedent suffered several multiple injuries, which caused his death on October 17, 1980. From the time of decedent's injury at 10:15 a.m. on October 17, 1980, until his death at 12:35 p.m. on the same day, decedent suffered great physical and mental pain, disability, shock, and agony, all to his damage in an amount to be proven at the time of trial. In addition thereto, decedent's death resulted in damages for shortened life expectancy and impaired earning capacity.

Clerk's Papers, at 3.

Respondent, Absher Construction Company, moved for partial summary judgment, contending that the complaint basically claimed damages for decedent's pain and suffering. Respondent argued that RCW 4.20.046 precludes such a recovery in all survival actions. The trial court granted the motion and dismissed all damage claims for decedent's pain and suffering. We hold that the decedent's pain and suffering are recoverable elements of damage under the special survival statute, RCW 4.20.060, and reverse the trial court.

RCW 4.20.060 provides:

No action for a personal injury to any person occasioning death shall abate, nor shall such right of action determine, by reason of such death, if such person has a surviving spouse or child living, or leaving no surviving spouse or issue, if there is dependent upon the deceased for support and resident within the United States at the time of decedent's death, parents, sisters or brothers; but such action may be prosecuted, or commenced and prosecuted, by the executor or administrator of the deceased, in favor of such surviving spouse, or in favor of the surviving spouse and children, or if no surviving spouse, in favor of such child or children, or if no surviving spouse or child or children, then in favor of the decedent's parents, sisters or brothers who may be dependent upon such person for support, and resident in the United States at the time of decedent's death.

This special survival or "death by personal injury" statute was originally enacted in 1854, and enacted in its present form in 1927. Laws of 1927, ch. 156, § 1, p. 143. It gives a cause of action only to certain beneficiaries who were dependent upon the deceased. See generally, Martin, Measuring Damages in Survival Actions for Tortious Death, 47 Wash.L.Rev. 609 (1972). The Legislature amended the statute in 1973, changing prior references to a surviving "wife" to refer to a surviving "spouse". Laws of 1st Ex.Sess.1973, ch. 154, § 3, p. 1124. The substance of the statute has remained essentially the same since its original enactment. Our court has consistently held that, where qualifying statutory beneficiaries exist, damages may be recovered under RCW 4.20.060 for the pain and suffering of the decedent. Orcutt v. Spokane Cy., 58 Wash.2d 846, 364 P.2d 1102 (1961); Machek v. Seattle, 118 Wash. 42, 203 P. 25 (1921); Thompson v. Seattle, Renton & S. Ry. Co., 71 Wash. 436, 128 P 1070 (1912).

The Legislature, in 1961, enacted the general survival statute, RCW 4.20.046.

All causes of action by a person or persons against another person or persons shall survive to the personal representatives of the former and against the personal representatives of the latter, whether such actions arise on contract or otherwise, and whether or not such actions would have survived at the common law or prior to the date of enactment of this section: Provided, however, That no personal representative shall be entitled to recover damages for pain and suffering, anxiety, emotional distress, or humiliation personal to and suffered by a deceased.

(Italics ours.) Respondent cites our decisions in Wooldridge v. Woolett, 96 Wash.2d 659, 638 P.2d 566 (1981), and Warner v. McCaughan, 77 Wash.2d 178, 460 P.2d 272 (1969), for the proposition that this general survival statute now precludes damages for a decedent's pain and suffering in all survival actions. We disagree.

Neither Wooldridge nor Warner involved survival actions brought by the statutory beneficiaries designated in the special statute, RCW 4.20.060. In Wooldridge, the decedent was a 22-year-old unmarried man who died intestate in an automobile accident, leaving no dependents. The father of the decedent brought a survival action for the benefit of the estate under RCW 4.20.046. We held that damages for shortened life expectancy were essentially components of pain and suffering and, thus, explicitly precluded by the general survival statute.

Similarly, Warner v. McCaughan, supra involved an action for damages arising out of the death of a 21-year-old woman who died intestate, leaving no dependents. Again, no statutory beneficiaries existed warranting an action under the special statute. The decedent's father brought the action under RCW 4.20.046 for the benefit of the estate. Because the injuries which gave rise to the suit caused the death of decedent, the court was concerned with the effect of RCW 4.20.060 on the general survival statute:

When projected against this backdrop, we believe it apparent that RCW 4.20.060 does not impair the efficacy of RCW 4.20.046; for we are convinced that the "legislature was intent in preserving causes of action, rather than pleas of abatement" when it adopted RCW 4.20.046 in 1961.

Warner, at 184, 460 P.2d 272.

The present case presents the flip side of the issue before the Warner court. Does RCW 4.20.046 impair the efficacy of RCW 4.20.060 relative to recovery of damages for a decedent's pain and suffering?

Respondent contends that RCW 4.20.046 repeals by implication any award for pain and suffering of the decedent formerly available under the special statute. Jenkins v. State, 85 Wash.2d 883, 540 P.2d 1363 (1975). This argument is not persuasive. The principles of repeal by implication were set forth in U.S. Oil & Ref. Co. v. Department of Ecology, 96 Wash.2d 85, 88, 633 P.2d 1329 (1981):

Implied repeals are disfavored. Jenkins v. State, 85 Wn.2d 883, 540 P.2d 1363 (1975). Ordinarily, a general statute does not repeal an earlier special statute by implication. Herrett Trucking Co. v. State Pub. Serv. Comm'n, 58 Wn.2d 542, 364 P.2d 505 (1961). However, an implied repeal will be found where:

(1) the later act covers the entire subject matter of the earlier legislation, is complete in itself, and is evidently intended to supercede prior legislation on the subject; or

(2) the two acts are so clearly inconsistent with, and repugnant to, each other that they cannot be reconciled and both given effect by a fair and reasonable construction.

In re Chi-Dooh Li, 79 Wash.2d 561, 563, 488 P.2d 259 (1971).

These two statutes, RCW 4.20.046 and RCW 4.20.060, can be harmonized. The special statute, RCW 4.20.060, gives a cause of action to certain designated beneficiaries; i.e., the dependents of the decedent, for personal injuries suffered by the deceased which caused his death. Where the personal injuries cause death, it is reasonable that the Legislature would provide the dependents of the decedent pain and suffering damages otherwise unavailable in actions brought for the benefit of the estate and its creditors. Martin, at 616-17.

Our research into the legislative history of survival statutes confirms that the Legislature did not intend to preclude recovery for the decedent's pain and suffering under the death-by-personal-injury statute, RCW 4.20.060. In 1953, the Legislature enacted RCW 4.20.045 which provided that no cause of action in tort would abate upon the death of the tort-feasor. Laws of 1953, ch. 73, § 1, p. 111-12:

No claim for damages for bodily injuries, property damage, or wrongful death shall abate by reason of the death of the tort feasor or of any other person liable for damages for such bodily injury, property damage or wrongful death: Provided, however, That the plaintiff shall not recover judgment except upon competent evidence other than the testimony of said injured person or persons and the testimony of the injured person or persons, by itself, shall not be sufficient to overcome the presumption of due care on the part of the deceased tort feasor.

The...