Northern Pacific Railroad v. Ellison

The opinion of the court was delivered by

Anders, C. J.

This was an action brought by respondent as administrator to recover damages for the death of his intestate, alleged to have been caused by the negligence of appellant. Many interesting questions are presented in the record, and most ably and thoroughly discussed in the briefs of the learned counsel for the respective parties, but it is unnecessary for us to here determine them. As we view it, this case must be governed by the authority of Graetz v. McKenzie, ante, p. 194, decided at the present session of this court. That action was based upon § 8- of the Code of Washington, and the only question presented for our determination were whether or not §§ 8 and 717 of the code were irreconcilably repugnant to each other, and, if so, which of the two sections should prevail. And this court, after mature deliberation, held that the two sections could not be harmonized with each other; and, as neither of them as found in the code was a new enactment, but only a continuation of a previous provision, it further held that § 8, being the later of the original enactments, was the last declaration of the legislative will, and therefore repealed § 717, which relates to the same subject-matter. As asserted in the brief of counsel for respondent and evinced by the complaint itself, this action was brought under the latter section. But if it should be conceded that it was brought under § 8, then the complaint is obnoxious to the objection of appellant that it fails to allege the existence of any surviving heirs of the deceased who would be entitled to the benefit which might be realized by a recovery of damages. In either case the action must fail.

The judgment of the court below is therefore reversed, and the cause dismissed without prejudice to any new action that may be authorized by law.

Dunbab, Scott and Stiles, JJ., concur.

Hoyt, J., concurs in the result.