Manning v. Tacoma Railway & Power Co., 34 Wash. 406

Manning v. Tacoma Railway & Power Co.

34 Wash. 406 | Wash. | 1904

Hadley, J.

This action was brought by appellant to recover damages on account of the death of her son. The complaint avers that the death was due to the negligence of the respondent railway company, and of its co-respondent, who was the motorman of one of its oars at the time of the accident which resulted in said death. It is also alleged, that the deceased was an unmarried man, of the age of twenty-seven years, and in good health; that he was able to earn, and did earn, $75 per month at his occupation of hotel clerk; that there has been no administration of his estate, and that the plaintiff is his sole heir, his father *407having died before him; that plaintiff is fifty-three years of age, and has not sufficient means for her support; that she is, and for a long time has been, dependent upon her sons, of whom she had three, for her support and maintenance; that said deceased son contributed largely to her support, and would have continued so to do while he and plaintiff both lived. Separate demurrers to the complaint were interposed by the defendants in the action. One of the stated grounds of demurrer is that the complaint does not state facts sufficient to constitute a cause of action. The demurrers were sustained. The plaintiff elected to stand upon her complaint, and refused to plead further. Judgment was thereupon entered dismissing the action. The plaintiff has appealed.

It is conceded by counsel that the court below sustained the demurrers on the authority of Noble v. Seattle, 19 Wash. 133, 52 Pac. 1013, 40 L. R. A. 822, in which this court held that no action lies for the death of an adult unmarried person. It is frankly stated that this appeal is prosecuted with the purpose of asking a reinvestigation of the question decided in the above-named case, to the end that the same may be overruled. Ho right of recovery in the premises exists at common law, and, if there be such right, it must be by virtue of a statute. Different statutory provisions bearing upon this subject were collected together and placed in one section in the Code of 1881, as section 8 thereof, and the same also appears in § 4828, Bal. Code. In the case above cited it was held that the word “heirs,” as used in said section, does not include parents or collateral relatives, but includes only the widow and children of the person whose death is caused by the wrongful act of another.

Oounsel for appellant in this case ably review the history of these statutes, and earnestly insist that the construction *408announced in Noble v. Seattle was erroneous, and should he overruled. It is also contended that this court had recoguized a different rule in prior eases. However that may have been, a direct and unmistakable construction was adopted in that case. The opinion was filed March 24, 1898. It has for six years stood as the adopted construction, and as the rule of decision upon the subject in this state. A little more than two years later, on May 24, 1900, the same question was again decided in Nesbitt v. Northern Pac. B. Co., 22 Wash. 698, 61 Pac. 141. But little is said in that opinion, yet the question presented was identical with that in Noble v. Seattle. We have examined the appellant’s briefs in that appeal, and find that able counsel elaborately and comprehensively covered the same ground as to our statutory history, and the Kentucky statutes and decisions, and otherwise carefully placed before this court the same argument that is now also skillfully and vigorously invoked by counsel for this appellant. Notwithstanding the earnest and forceful argument in that case, the court deemed it unnecessary to discuss the subject further than to say that it adhered to the ruling in Noble v. Seattle. In view of the fact that the court then declined to reopen the subject, and that the criticized construction has stood for six years as a rule of decision, we think we should not now disturb it. It is furthermore a fact that, since the construction was first announced, three regular sessions of the state legislature have been convened, and no change in the statute has been made. It may be reasonably assumed that the legislative department has acquiesced in the construction of the statute as being correct, or it would have made its meaning known by more definite and unmistakable expression.

We think it proper to say that, as this court is now constituted, if the question were now here as one of original *409statutory construction, it is not improbable that a different construction would be adopted. But a mere change in the personnel of the court should not be treated as justification for overruling former decisions, even though the individual judges may think that they were erroneous. Such a course would lead to the expression of mere opinionated, individual views, whereas the decisions of an appellate tribunal, which have been long followed and regarded as establishing rules governing property and personal rights, concern the people of an entire state, and should not ordinarily be subject to disturbance by either a change in the membership of the court, or by change of individual views. We believe, therefore, that the subject urged upon this appeal should now be considered as at rest, unless the legislative department shall clearly express a different rule.

The judgment is affirmed.

Fullerton, C. J., and Dunbar, Mount, and Anders, JJ., concur.