Brodie v. Washington Water Power Co. , 92 Wash. 574 ( 1916 )

Per Curiam.

On November 28, 1909, A. C. Brodie, while a passenger on a street car of the Washington Water Power Company, was injured as the result of a collision occurring between the car upon which he was riding and another car of the company. Later on he made a claim upon the company for damages based on the injuries received. The company thereafter settled with him, paying him $2,500, and taking a release .from him in which he acknowledged full payment and satisfaction of any and all claims and demands which he then had against the company, or which he might thereafter have, by reason of the injuries received by him in the collision. On December 31, 1910, Brodie died, and the present action was instituted by his widow and children to recover for his death. In the complaint it was alleged that the death was the result of the injuries received in the collision, and that the collision was caused by the negligence of the company. To the complaint, the company set up the settlement and satisfaction as an affirmative defense. A demurrer was interposed to the defense, which the trial court overruled. The plaintiffs thereupon elected to stand upon the demurrer and refused to plead further, whereupon the court entered judgment to the effect that the plaintiffs take nothing by their action. This is an appeal from the judgment entered.

The statutes of this state relating to actions for death by wrongful or negligent act provide for two causes of action. By § 194 of the Code (Rem. 1915 Code), it is provided:

“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, . . . but such action may be prosecuted, or commenced and prosecuted, in favor of such wife or in favor of the wife and children, . . .”

By § 183 it is provided:

“When the death of a person is caused by the wrongful act or neglect of another, his heirs or representatives may maintain an action for damages against the person causing the death. ... In every such action the jury may give such damages, as under all circumstances of the case may to them seem just.”

The statutes were enacted to overcome defects thought to exist in the common law. By the common law no person had the right to recover for the death of another, no matter how wrongfully or negligently caused, and the right of action possessed by a person injured did not survive his own life. The first section of the statute cited is plainly a survival statute. Its purpose is to preserve in the beneficiaries named therein such right of action as the injured person himself had because of the wrongful or negligent act causing the injury, and is confined to such personal loss as the injured person sustained. The second, although originating in the same wrongful act or neglect, begins where the other ends and is confined to such loss and damage as the beneficiaries named have suffered by the death of the person injured. Swanson v. Pacific Shipping Co., 60 Wash. 87, 110 Pac. 795; Thompson v. Seattle, Renton & S. R. Co., 71 Wash. 436, 128 Pac. 1070.

But notwithstanding the seeming separate nature of the two causes of action, the courts hold with substantial unanimity that a release and satisfaction by the person injured of his right of action for the injury bars the right in the beneficiaries to maintain an action for his death occasioned by the injury. Thus Tiffany, in his work, Death by Wrongful Act (2d ed.), § 124, states the prevailing rule as follows:

“If the deceased, in his lifetime, has done anything that would operate as a bar to recovery by him of damages for the personal injury, this will operate equally as a bar in an action by his personal representatives for his death. Thus, a release by the party injured of his right of action, or a recovery of damages by him for the injury, is a complete defense in the statutory action.”

The cases, however, are not unanimous. The contrary view has been maintained with great force, and seemingly with much logic, especially under statutes like our own which create two separate causes of action.

But we need not pursue the inquiry. The arguments for and against the proposition, with a collation of the authorities, will be found in the opinions of the court and in the opinions of the dissenting judges in the cases of Southern Bell Tel. & Tel. Co. v. Cassin, 111 Ga. 575, 36 S. E. 881, 50 L. R. A. 694, and Rowe v. Richards, 35 S. D. 201, 151 N. W. 1001, the first of which maintains, and the second of which denies, the rule.

It is the opinion of the majority of this court that the better reason is with the cases holding with the affirmative. This view requires an affirmance of the judgment of the court below, and it is so ordered.