Whittlesey v. City of Seattle

• Decision Date: 16 February 1917
• Docket Number: 13447.
• Citation: 163 P. 193,94 Wash. 645
• Court: Washington Supreme Court
• Parties: WHITTLESEY et al. v. CITY OF SEATTLE.

163 P. 193

94 Wash. 645

WHITTLESEY et al. v. CITY OF SEATTLE.

No. 13447.

Supreme Court of Washington, En Banc.

February 16, 1917

Appeal from Superior Court, King County; John S. Jurey, Judge.

Action by Cedric Whittlesey and others against the City of Seattle. From a judgment for plaintiffs, defendant appeals. Reversed and remanded, with directions to dismiss.

James E. Bradford, Howard M. Findley, Hugh M Caldwell, and Walter F. Meier, all of Seattle, for appellant.

Beeler & Sulivan, of Seattle, for respondents.

S. A Keenan, of Seattle, amicus curiae.

CHADWICK J.

This action was brought by the surviving children of Lillian Bell Whittlesey who met instant death in an automobile accident occurring in the city of Seattle on the 30th day of March 1913. The case was tried below upon issues of both law and fact, all of which were decided in favor of respondents. The city has appealed.

The contributory negligence of respondents is urged, but finding ourselves compelled to the conclusion that respondents have no right of action, we shall not discuss the facts. Those interested in this phase of the case will find them sufficiently set forth in the opinion filed in the case of Haynes v. Seattle, 83 Wash, 51, 145 P. 73.

It is conceded that the common law gave no remedy for the wrongful death of a person, and that the action must be sustained, if sustained at all, under section 183 of the Code. Whether a child can recover for the wrongful death of its mother is the concrete question presented for our decision.

Some courts have held the Wrongful Death Act, which, in some form is common to all the states (3 Shearman & Redfield on Negligence, Appendix, p. 2051 et seq.), to be in derogation of the common law, and therefore to be construed strictly. Others have held the act to be remedial, and have construed it liberally. But, having in mind our own decisions, we agree with Judge Cooley, who suggests the correct rule:

'That such statutes should receive a strict construction in determining the persons or classes of persons who are entitled to their benefit, and a liberal construction in applying the statute in their favor.' 1 Cooley on Torts (3d Ed.) p. 553.

The first territorial Legislature passed an act giving a right of action to 'the widow, or widow or children, or child or children, if no widow, of a man killed in a duel.' The scope of the law was extended, by amendment, in 1875 and in 1909. The act as it now appears (the act of 1854 in lower case type, the act of 1875 in upper case type, and the act of 1909 in italics) is as follows:

'Sec. 183. WHEN SURVIVORS' HEIRS OR REPRESENTATIVES MAY SUE.--The widow, or widow and her children, or child or children if no widow, of a man killed in a duel, shall have a right of action against the person killing him, and against the seconds and all aiders and abettors. WHEN THE DEATH OF A PERSON 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. If the deceased leave no widow or issue, then his parents, sisters or minor brothers who may be dependent upon him for support and who are resident within the United States at the time of his death, may maintain said action. WHEN THE DEATH OF A PERSON IS CAUSED BY AN INJURY RECEIVED IN FALLING THROUGH ANY OPENING OR DEFECTIVE PLACE IN ANY SIDEWALK, STREET, ALLEY, SQUARE OR WHARF, HIS HEIRS OR PERSONAL REPRESENTATIVES, or if deceased leaves no widow or issue, then his parents, sisters or minor brothers who may be dependent upon him for support, and who are resident within the United States at the time of his death, MAY MAINTAIN AN ACTION FOR DAMAGES AGAINST THE PERSON WHOSE DUTY IT WAS, AT THE TIME OF THE INJURY, TO HAVE KEPT IN REPAIR SUCH SIDEWALK OR OTHER PLACE. IN EVERY SUCH ACTION THE JURY MAY GIVE SUCH DAMAGES, AS UNDER ALL CIRCUMSTANCES OF THE CASE MAY TO THEM SEEM JUST. [L. '09, p. 425, § 1. Cf. L. '54, p. 220, § 496; L. '75, p. 4, § 4; Cd. '81, § 8; 2 H. C., § 138.]' Rem. Code, § 183.

The object of the statute is well stated in Hedrick v. Ilwaco R. & N. Co., 4 Wash. 400, 30 P. 714:

'It is settled beyond controversy that, at common law, no civil action could be maintained for damages resulting from the death of a human being. But that defect of the common law has been obviated by statute in the several states analogous to the English statute, commonly known as Lord Campbell's act (9 and 10 Vic. c. 93) though often varying more or less from its provisions, especially as to the party entitled to maintain the action. The object and purpose of these statutes is to provide a remedy whereby the family or relatives of the deceased, who might naturally have expected maintenance or assistance from the deceased, had he lived, may recover compensation from the wrongdoer commensurate with the loss sustained.'

The first case bearing on the question now to be decided is that of Noble v. Seattle, 19 Wash. 133, 52 P. 1013, 40 L. R. A. 822. In that case, the father and mother brought suit to recover for the death of a son, claiming to be 'heirs' within the meaning of the statute. The objection that the word 'heirs' does not include parents and collateral relatives was successfully urged. The court refused to take the word 'heirs' from its setting, saying:

'While in general the term 'heirs' includes collateral kindred and those who take under the statute of distribution we think that in view of the entire legislation upon the subject it never was intended that parents or remote ancestors might maintain actions like the present, and that the word 'heirs' as used in section 138 should be held to include only those persons who are thereinbefore specifically mentioned, viz.: 'The widow, or widow and her children, or child or children if no widow.''

The case was directly challenged, but was passed as the settled law in Nesbitt v. Northern P. Ry. Co., 22 Wash. 698, 61 P. 141, and Copeland v. Seattle, 33 Wash. 415, 74 P. 582, 65 L. R. A. 333. It was suggested in each case that the court, as then constituted, might decide otherwise if it were an original question, but the Noble Case was adhered to under the doctrine of stare decisis. The next case of interest is that of Johnson v. Seattle Electric Co., 39 Wash. 211, 81 P. 705. It was alleged that Mattie Johnson, the wife of Christian Johnson and mother of Merinus Colmer Johnson, one of the plaintiffs, had met her death by reason of the negligence of the defendant. The surviving husband and children joined in an action to recover damages. The defendant demurred upon two grounds: (1) That several causes of action were improperly joined; (2) that the complaint did not state a cause of action as to Christian Johnson. The trial judge dismissed the action. This court, adhering to the doctrine of the Noble Case and those following it, held squarely that the right of either husband or wife to sue for the death of the other depended entirely upon legislation, and that a statute giving a right of action that did not theretofore exist would not be extended by construction beyond the class or classes specifically mentioned therein. The court said:

'With the construction already given this statute by this court, it cannot be held that the Legislature intended to confer a right of action upon a surviving husband. If it had intended to confer so valuable a right upon a widower in his own behalf, it would doubtless have so said in express terms.'

A right of recovery was denied the husband, although the merit of the argument, and it was most ably presented in the briefs of the plaintiffs that the loss of a wife to a husband was as great as the loss of a husband to the wife, was not denied. The argument was rejected as a matter for the Legislature. In passing upon the right of the child to recover, it was said:

'It is urged that the cause of action in favor of the minor son for the loss of his mother should have been permitted to stand. It was, however, improperly joined with another. This is a statutory ground of demurrer, and the demurrer was properly sustained upon that ground. The order sustaining the demurrer gave leave to amend, so that the son might have separately stated his cause of action. He declined to amend, and there remained nothing for the court to do but render judgment for the respondent.'

From this it is insisted that, granting that a surviving husband has no right of action for the death of a wife, the Johnson Case does not stand as an authority against the right of a child to sue for the death of a mother; and that by the use of the words 'so that the son might have separately stated his cause of action' the court actually held that the son had a cause of action. Looking to the face of the opinion and to that alone this might seem to be so, but a resort to the record and the briefs of counsel convince us that the case decided against the child did not depend alone upon the question of misjoinder. In the beginning it was the evident purpose of the trial judge and of counsel to submit that question to the court. When the demurrer was sustained leave was granted to amend. Plaintiffs refused to amend, and the right of the child to maintain the action, although the father was dismissed out of the case, was contended for by plaintiffs in their briefs. Now it would follow that the dismissal of the father's right of action would not operate as a dismissal of the right of the son to maintain the action if he could in fact state a cause of action. In this we find the only legal reason for the further observation of the court:

'He declined to amend, and there remained nothing for the court to do but render judgment for the respondent.'

The opinion operates either as a denial of the right by the...