225 F. 441 | W.D. Wash. | 1915
This is an action commenced by Anna. F. Frescoln, widow of J. W. Frescoln, to recover $25,000 for the death of her husband. It is alleged that on the 22d day of November, 1913,
“That all of said matter is irrelevant and has nothing to do with the action brought under the above title, and for the further reason that the action referred to in said matter was brought and maintained under a different provision of the law and statute of the state of Washington.”
“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. * * * ”.
The plaintiff in this case seeks to recover damages because of injuries sustained by her personally, such as loss of affection and companionship, and loss of support which would be occasioned by reason of her husband’s death, and this action is based upon section 183, Rem. & Bal. Code Wash., which provides:
“ * * * 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. * * * ”
“It would be an anomalous situation if tile language used in our statute could be so construed that after a court of competent jurisdiction has ascertained, in a suit brought by a party himself, that the wrongful acts which constitute the sole foundation of any recovery against the defendant are not of actionable character, and that the injured person is not entitled to maintain an action by reason of them, or to recover damages on their account, other parties, in another and subsequent proceeding, may proceed to show, in an action for their benefit, founded upon the same alleged'acts of the defendant, that at the time of the intestate’s death lie was as a matter of fact, the judgment of the court to the. contrary notwithstanding, entitled to maintain an action against the defendant company and to recover damages for ihe very acts in respect of which recovery was denied the very man who suffered the injuries which resulted in his death.”
The Supreme Court of the United States, in Southern Pacific Ry. Co. v. U. S., 168 U. S. 1, 18 Sup. Ct. 18, 42 L. Ed. 355, holds to the
Plaintiff’s right of recovery in this case is based upon the assumption that the defendant was negligent. A competent court having adjudicated in favor of the defendant with relation to the negligent acts relied upon, the foundation of the plaintiff’s right of recovery is removed, and, until that judgment is reversed, the plaintiff’s complaint can have no standing in this court.
The motion to strike is therefore denied.