Criscuola v. Andrews , 82 Wash. 2d 68 ( 1973 )

Hale, C.J.

(dissenting) — The court compounds an error which I think it made in Hinzman v. Palmanteer, 81 Wn.2d 327, 501 P.2d 1228 (1972). It treats the statute not as one to preserve or provide survival for existing causes of action but as one creating new causes of action among classes of persons whom, I think, the legislature never intended to benefit, i.e., creditors, distant relatives, nondependents and, quite possibly, under the court’s construction, with parties simply under contract with or to the deceased. As the court makes clear, John Criscuola was 21 years old at the time of his death; he was unmarried and had no children; he had no parents, no brothers or sisters, dependent upon him for support. For whose benefit then does the action survive? Did the legislature intend, in enacting RCW 4.20.046, to give a cause of action to his distant relatives, his creditors —and perhaps those with whom he had contracted to perform services or make purchases — for the loss of their profits or his particular talents?

RCW 4.20.046 reads:

(1) All causes of action by a person or persons against another person or persons shall survive to the personal representatives of the former and against the personal representatives of the latter, whether such actions arise on contract or otherwise, and whether or not such actions would have survived at the common law or prior to the date of enactment of this section: Provided, however, That no personal representative shall be entitled to recover damages for pain and suffering, anxiety, emotional distress, or humiliation personal to and suffered by a deceased. The liability of property of a husband and wife held by them as community property to execution in satisfaction of a claim enforceable against such property so held shall not be affected by the death of either or both spouses; and a cause of action shall remain an asset as though both claiming spouses continued to live despite the death of either or both claiming spouses.

(2) Where death or an injury to person or property, resulting from a wrongful act, neglect or default, occurs simultaneously with or after the death of a person who would have been liable therefor if his death had not occurred simultaneously with such death or injury or had not intervened between the wrongful act, neglect or default and the resulting death or injury, an action to recover damages for such death or injury may be maintained against the personal representative of such person.

The legislature, in enacting RCW 4.20.046, assuredly did not intend to create causes of action in the decedent’s estate where there had been no cause of action before death. That statute must be construed in pari materia with RCW 4.20.010 which provides that, where the death of another is caused by a wrongful act, the personal representative of the decedent may maintain an action against the tort-fea-sor. But it was unequivocally declared in the statutes, however, that every such action shall be for the benefit of certain named classes of beneficiaries: family members or dependent relatives of certain classes. No other class of beneficiary is specified. RCW 4.20.020.

Whatever the legislature intended by its enactment in RCW 4.20.046, it did not intend as the court now does to enlarge this restrictive and specific section by means of a broad and genéral pronouncement to allow the estate per se to recover for losses it never suffered.

Statutes on the same subject are to be construed together so as to avoid a conflict. Silvernail v. County of Pierce, 80 Wn.2d 173, 492 P.2d 1024 (1972). Generally speaking, where there is a conflict, the specific statute controls the general. Mercer Island v. Walker, 76 Wn.2d 607, 458 P.2d 274 (1969). Here, reading the two statutes in pari materia, the specific language of the earlier would limit the general terms of the later to resolve a potential conflict. If that conflict is in fact seen after the limiting construction, then the specific section should be seen to control over the general.

Limiting the survival of actions, as I believe the statutory scheme directs, will prevent what I see as a very real threat inherent in the majority opinion. Distant relatives, creditors and nondependents have never been held to have an economic interest in one’s survival, nor has the state under its escheat powers. The court now gives all of them a pecuniary interest in the lifetime earnings of one killed in an accident. It creates a windfall in one’s death to a class which in justice has heretofore never been permitted any interest whatever.

Many of the same flaws are here apparent as were apparent in this court’s recent decision in Hinzman v. Palman-teer, supra. A great potential for double recovery and the uncertainty of measuring lifelong earnings and expenses of living are apparent in this case, maintained by the estate per se ostensibly for losses suffered by the estate per se.

In my opinion, the legislature never intended to create causes of action for the benefit of legal strangers to the deceased, nor give his creditors a stake in his predicated fictitious net worth, nor give the state a survivor’s claim in escheat, nor allow distant relatives a tort claim for his demise. Accordingly, I dissent to the majority’s interpretation of what I perceive to be a clear and well-limited statutory scheme. .