Broughton v. Oregon-Washington Railroad & Navigation Co.

241 P. 963, 137 Wash. 135, 1925 Wash. LEXIS 1127

• Court: Washington Supreme Court
• Decided: December 28, 1925
• Docket: No. 19460. Department One.
• Status: Published

Opinion

Askren, J.

Appellants brought this action to recover for funeral and other expenses incurred in the burial of their adult son, whose death was alleged to have resulted from the wrongful act of respondent corporation. A demurrer was filed setting up several grounds, chief among which were that appellants had no capacity to sue, and that the action was brought under the Federal Employers ’ Liability Act, which did not permit a recovery. The trial court sustained the demurrer.

Appellant contends that, while the facts stated in the complaint were sufficient to bring it under the Federal Employers’ Liability Act, it states a cause of action under state laws, as well, and therefore the court erred.

If it be assumed that the action was brought under state statutes, we are of the opinion that the court’s decision was right upon the ground of the incapacity of appellants to bring the action. Section 183, Eem. Comp. Stat., provides that all actions for damages against a person causing the death of another shall be brought by the personal representative of the deceased. We have had occasion to construe this statute on many occasions to this effect. Machek v. Seattle, 118 Wash. 42, 203 Pac. 25; Howe v. Whitman County, 120 Wash. 247, 206 Pac. 968; Castner v. Tacoma Cas & Fuel Co., 123 Wash. 236, 212 Pac. 283.

Appellants contend, however, that this action may be brought under § 184, Eem. Comp. Stat., which is:

“A father, or in case of the death or desertion of his family, the mother may maintain an action as plaintiff for the injury or death of a child, and a guardian for the injury or death of his ward.”

This section has frequently been construed to mean that recovery thereunder may be had only for the injury or death of a minor child. Machek v. Seattle, supra. The son in this case was ah adult, and an action for damages must be brought by the personal representative.

The judgment of the trial court is right, and is hereby affirmed.

Tolman, C. J., Holcomb, Mackintosh, and Fullerton, JJ., concur.