Cooper v. RunnelsCooper v. Runnels
Can a tort claim for damage to property be assigned?
Plaintiff’s complaint alleges:
“2. That between the 10th and 16th days of March, 1954, the Defendants were spray painting a large water tower and tank of the City of Toppenish, Washington, said Defendant Company having during all of said times exclusive control over all of said spray painting operations. That said sprаy painting operations were so negligently and carelessly conducted as to deposit paint on the hereinafter mentioned vehicle or vehicles.
“3. That by reason of said negligence and carelessness and as a proximate cause thereof, paint was at said time depositéd upon the automobile of Plaintiff; that as a result said automobile was damaged so that the reasonable market value thereof was $10.30 less immediately after the deposit of said spray paint than before, all to his damage in said amount.”
Plaintiff’s second through the ninety-second causes of action allege similar damage to one hundred thirty-seven automobiles owned by ninety-one different individuals. The alleged claims, totaling $3,978.55, were assigned to plaintiff.
The trial court sustained defendants’ demurrer to all of plaintiff’s causes of action except the first, on the ground that the alleged claims are nonassignable. Plaintiff appeals from a judgment dismissing all but his first cause of action.
We have concluded that a tort claim for damage to property is assignable under thе law of this state. Therefore, it was error to sustain the demurrer and to dismiss the causes of action to which the demurrer was directed.
The test of assignability is: Does the cause of action survive to the personal representative of the assignor? If it does, the cause of action is assignable.
Slauson.v. Schwabacher Bros. & Co.,
When property is damaged by a tort-feasor, and either or both the property owner and the tort-feasor die, three closely related questions may arise. First: Can the personal representative of the property owner maintain an action against the tort-feasor? Second: Can the property owner maintain an action against the personal representative of the tort-feasor? Third: Can the personal representative of the property owner maintain an action against the pérsonal representative of the tort-feasor?
The immediate problem before us is a narrow one. It is confined to the first situation, for, if the cause of action can be maintained against the tort-feasor by the personal representatives of the property owners, then their assignments to the plaintiff are valid.
At the early common law, a cause of action did not survive to the personal representative of the owner of damaged property; hence, it was not assignable by him during his lifetime.
At least two reasons have been advanced in support of this conclusion. In the Anglo-Saxon period, and for at least the first two and a half centuries after the Conquest, there was no such thing as a general representative of a deceased person. 3 Holdswоrth’s History of English Law (6th ed. Rev.) 572. Later, when executors were recognized, both the extent of their right to sue and the extent of their liability were affected by the maxim, “A personal action dies with the person.” (Actio personalis moritur cum persona.)
Professor Goudy said:
“Though this is one of the most familiar maxims of English law, the veil of obscurity covers nоt only its origin but its true import and significance.” Goudy, Essays in Legal History (1913) 216-227.
' The best conjecture on the subject is that it was. a result of the development of the tort remedy as an adjunct of
Gradually, the power of the executor was extended. From the reign of Edward I, the executor could sue in debt or detinue, the first action based upon contractual or quasi-contractual rights; the second, upon the theory оf unjust enrichment. Detinue could also be maintained against the executor of a deceased wrongdoer on the theory that an obligation to restore property did not die with the person.
In 1330, a statute was passed allowing the executor to sue for trespаsses done to the goods and chattels of his testator. It was known as the statute “de bonis asportatis in vita testatoris” and read as follows:
“Item, Whereas in Times past Executors have not had Actions for a Trespass done to their Testators, as of the Goods and Chattels of the same Testators carried away in their Life, and so such Trepasses have hitherto remained unpunished; (2) it is enacted, That the Executors in such Cases shall have an Action against the Trespassers, and recover their Damages in like Manner, as they, whose Executors they be, should have had if they were in Life.” 4 Edw. Ill, chapter 7 (1330).
Of this statute, Holdsworth said that it
“. . . eventually gave him [the executor] the right to bring either detinue, trespass, trespass on the case, or trover in appropriate cases in respect of different wrongs to these goods and chattels.” 3 Holdsworth’s History of English Law (6th ed. Rev.) 584.
In
Wilson v. Knubley,
7 East 128, 103 Eng. Rep. 49 (1806),
“It speaks of a trespass as of a wrong generally; and it enacts, that the executors shall have an action, not saying what form of action, against the trespassers, meaning thereby wrong-doers.” (Italics ours.) (p. 52)
The common law of England, including the English statutes in force at the date of thе Declaration of Independence, continues to be the law of this state except as it is inconsistent with state and Federal constitutions, or incompatible with the institutions and society of this state, or modified by statute.
In order to determine whether the common law has been modified in this jurisdiction, we turn to our statutes.
“All causes of action other than those enumerated inRCW 4.20.010 [involving right of action for wrongful death], by one person against another, whether arising on contract or otherwise, survive to the personal representatives of the former and against the personal representativеs of the latter. Where the cause of action survives, as herein provided, the executors or administrators may maintain an action at law thereon against the party against whom the cause of action accrued, or after his death, against his personal representatives.”
Defendants in the instant case argue that this statute, passed in 1869 (Laws of 1869, § 659, p. 165), limits survival of causes of action to those whose survival had already been defined by previous statutes of this state.
We cannot agree. On several occasions, we have pointed out that this statutе (now designated as
Consideration of these decisions leads us to conclude that those causes of action which survive at common law survive in this jurisdiction, unless prohibited by statute.
Warner v. Benham,
“Executors and administrators may maintain actions against any person who has [shall have] wasted, destroyed, taken, carried away, or converted to his own use the goods оf their testator or intestate in his lifetime. They may also maintain actions for trespass committed on the estate of the deceased during his lifetime.” (Bracketed words omitted and italicized words inserted by codifiers; cf. Laws of 1917, chapter 156, § 149; Code of 1881, § 1530.)
In several of our former decisions, we have alluded to the.precise problem we are now considering — the right to assign a cause of action for damage to property, or the parallel question of whether a right of action for damage to property survives to the personal representative of the property owner.
In
Slauson v. Schwabacher Bros. & Co.,
In
Jordan v. Welch,
Relying upon the discussion of this problem in the Slauson case, supra, but without referring to the statute involved, this court said:
“It would hardly be contended that the cause of action for damage to the Taylor lands did not survive. It was, therefore, a proper assignment, and it was not error to so hold.”
In
Seward v. Spokane, Portland & Seattle R. Co.,
In
Polk v. Spokane Interstate Fair,
In
Yamamoto v. Puget Sound Lbr. Co.,
In
Boyd v. Sibold,
7 Wn. (2d) 279,
This court affirmed the trial court on the grounds that plaintiff’s claim, except for damage to the automobile, neither survived to his executrix at the common law nor survived by reason of
“. . . that the only. recovery to which apрellant is entitled, is for the damage to the automobile of the deceased; in other words, that, being a direct damage to personal property of the estate, constituted a trespass committed on the estate of Mr. Boyd during his lifetime.” (p. 292)
Defendants argue that the portion of the Boyd case, supra, which holds that the cаuse of action survives for damage to the automobile is dictum. If such it be, we now adopt the reasoning of the Boyd case as the reasoning of our decision in the instant case.
The many cases which defendants (respondents) cite in support of the judgment of the trial court are distinguished by the fact that they do not treat with “actions for trespass committed on the estate of the deceased during his lifetime.” They treat with purely personal wrongs which survive neither by reason of the statute nor at common law.
“Any person, or his personal representatives, shall .have an action against the executor or administrator of any estate or intestatе who in his lifetime wasted, destroyed, took, or carried away, or converted to his own use, the goods and chattels of any such person, or committed any trespass on the real estate of such person.”
It will be noted that the only substantial difference between
We do not agree that we should construe the word “real” into
“. . . that ‘estate’ refers to real, and personal property having a physical objective existence.” (Italics ours.) (p. 288)
It was pointed out in 1941 by the author of the dissenting opinion in
Boyd v. Sibold, supra,
that
Defendants (respondents) cite
Barnum v. Jackson,
Neither of the cited cases are apposite to the instant case. Both present the question of the extent of recovery
against
a personal representative of a deceased tort-feasor and are based upon an interpretation of
Defendants’ contention that there is a misjoinder of causes of action is not well taken.
The judgment of dismissal is reversed with instructions to enter an order overruling defendants’ demurrer. Costs of this appeal shall abide the final disposition of this action.