An action pursuant to the survival statute was brought against Howard Andrews and his wife in the name of the estate of John L. Criscuola. A judgment on a jury verdict for $32,000 was entered. The sole issue presented is whether a cause of action survives under our general survival statute when death is instantaneous. We hold that it does and affirm the verdict.
At the time of his death, John Criscuola was 21 years old and single. He died at the scene of the accident, left no surviving wife or children and had no parents, sisters or brothers dependent on him for support. Although there could be a question raised as to whether his death was instantaneous, we assume for purposes of this decision that it was.
Our decision in Hinzman v. Palmanteer, 81 Wn.2d 327, 501 P.2d 1228 (1972) reaffirmed the court's earlier holding in Warner v. McCaughan, 77 Wn.2d 178, 460 P.2d 272 (1969) that under the general survival statute, all tort causes of action, except claims for pain and suffering, survive the death of the injured party. In those cases we emphasized the distinction between the causes of action under the general survival statute which continue after death as an asset of the estate and those actions under the wrongful death statute which are new causes of action for the benefit of certain named parties and are premised on an alleged wrong to the statutory beneficiaries, not the estate.
We believe this conclusion is justified because it allows for concurrent remedies without duplicating damages, by not implying from the existence of a wrongful death act that all prospective losses were to be cut off in a survival action. Moreover, it is consistent with the rule that "all" personal injury causes of action survive, including the loss of prospective earnings, and that the loss of earnings may be prospective when death is caused by the injury. Finally, the injury to creditors and heirs or devisees in the loss of expected future earnings does not abate at decedent's death because their injury is included in decedent's cause of action which arose, even if only momentarily, before death. Martin, Measuring Damages in Survival Actions for Tortious Death, 47 Wash. L. Rev. 609, 624-25 (1972).
Our current holdings do not require a contrary approach. We addressed ourselves in Hinzman to the question of what rule should be chosen to measure prospective lost wages in a survival action. In that case, we indicated under those
We hold that when there is an instantaneous death, a cause of action still exists under the Washington survival statute.
FINLEY, ROSELLINI, HUNTER, HAMILTON, STAFFORD, and WRIGHT, JJ., concur.
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?
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-feasor. 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
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. Palmanteer, 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.