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Opinion of the Court-WHITE, J.
visions were re-enacted in 1863 (Session Laws 1863, p. 85, §§ 16, 19, 22); were re-enacted in 1869 (Session Laws 1869, p. 8, §§ 25, 28, 32); were codified in the laws of 1881, §§ 25, 28 and 33, pp. 39, 40, and are §§ 4796, 4800 and 4805, Bal. Code.
It is a well known principle of law that when a statute is re-enacted it is but a continuance of the law as first enacted. Mudgett v. Liebes, 14 Wash. 482 (45 Pac. 19).
As early as 1854 the legislature had provided that for personal injuries occasioning the death of a husband and father, a right of action existed and might be commenced and prosecuted in favor of the wife and children. At the same time it was also provided that for any "injury to the person or rights of another" the action should be commenced within three years after the cause of action should have accrued. Section 7 of the act of 1854, providing a two years period for actions for relief not before provided for, had no relation to actions for an "injury to the person or rights of another," for that was a matter before provided for. As the mere re-enactment of these statutes is but a continuance of the law as it was when first enacted, it follows that § 4805, Bal. Code, has no relation to actions for injuries to the person or rights of another, provided for by § 4800; that section and § 4805 being but §§ 4 and 7 of the laws of 1854. The respondent says that the right of action for death by wrongful act was first given in 1869 (Laws 1869, § 658), and the appellants say that at the time of the enactment of the original statute of limitations in 1854 there existed no authority for bringing an action for death by wrongful act. Both respondent and appellants are in error, and seem to have overlooked § 495, p. 220, Laws 1854, which we think clearly gave a right of action for injuries occasioning death. This law was enacted simultaneously with, or
Opinion of the Court-WHITE, J.
prior to, the statute of limitations of 1854. By the death of the husband and father the plaintiffs in this action were injured in their rights. They had a right to look to the person killed by the accident for support and maintenance, and it was for this reason that the wife and children were given the right under § 495, p. 220, Laws 1854, to commence and prosecute an action after the death of the injured husband and father. We have heretofore held that,
"The sole object of such statutes is to give a right of action for damages in favor or for the benefit of those who may be deprived of support and maintenance by death caused by the wrongful act or omission of another." Dahl v. Tibbals, 5 Wash. 259 (31 Pac. 868).
Section 495, p. 220, Laws 1854, nowhere limits the injury to the person suing, and there is no reason for so limiting it. The words "injury to the person" apply as well to an injury to the deceased father and husband, for which the plaintiffs seek to recover, as an injury to the persons of the plaintiffs themselves. The action is not for an injury to the persons of the plaintiffs, but the gravamen of the action is negligence of the defendant causing the death of the deceased; or, in other words, "an injury to the person of another." One case comes as squarely within the terms of the statute as does the other. This section clearly means an injury to the person of another when that other is the plaintiff himself, or when that other is the injured party who has since died, and the action is being prosecuted by his widow and children. O'Kief v. Memphis & C. R. Co., 99 Ala. 524 (12 South. 454); Sheffield v. Harris, 112 Ala. 614 (20 South. 955). In 1869 (Laws 1869, p. 165, § 658), it was enacted: "When the death of a person is caused by the wrongful act or omission of another, the personal representatives
Opinion of the Court-WHITE, J.
of the former may maintain an action at law therefor against the latter, if the former might have maintained an action had he lived, against the latter, for an injury caused by the same act or omission. Such action shall be commenced within two years after the death, and the damages therein shall not exceed five thousand dollars, and the amount recovered, if any, shall be administered as other personal property of the deceased person."
It may be urged that this section effected a repeal of § 495, p. 220, Laws 1854, under the rule laid down in Graetz v. McKenzie, 3 Wash. 194 (28 Pac. 331). We held, however, in Noble v. Seattle, 19 Wash. 133 (52 Pac. 1013, 40 L. R. A. 822), that § 495, Laws 1854 (§ 4838, Bal. Code), is still in force. But, as we view the matter, the question of the repeal of § 495, Laws 1854, is immaterial, for the same right of action was given in 1875 without any change in the law limiting the time in which such action could be brought.
Section 658, Laws 1869, supra, gave to the personal representative a right to maintain an action where the death of a person is occasioned by the wrongful act or omission of another, and limited the recovery to not to exceed $5,000, and provided that such action should be commenced within two years after the death. The limitation provided in this section was special, and applied only to actions in favor of the personal representative. In 1875 (Laws 1875, p. 4, § 4; § 4828, Bal. Code), the legislature, in amending the law of 1873, relating to the practice and proceedings in civil actions, declared:
"Sec. 4. The following additional section shall follow section 8 as a new section in the chapter of said act of which this is amendatory, relating to parties to actions; that is to say, Section When the death of a person is caused by the wrongful act or neglect of another, his heirs or personal representatives may maintain an action
Opinion of the Court-WHITE, J.
for damages against the person causing death or, when the death of a person is caused by an injury received in falling through any opening or defective place in any sidewalk, street, alley, square or wharf, his heirs or personal representatives may maintain an action for damages against the person whose duty it was at the time of the injury to have kept in repair such sidewalk or place. In every such action the jury may give damages, pecuniary or exemplary, as under all the circumstances of the case may to them seem just."
We have held that this act repealed § 658, Laws 1869, supra. Graetz v. McKenzie, supra; Northern Pacific R. R. Co. v. Ellison, 3 Wash. 225 (28 Pac. 333); Dahl v. Tibbals, supra.
We think this repeal went to the entire section, and we so held in Northern Pacific R. R. Co. v. Ellison, supra. This repeal included the two years limitation because the limitation provided in this section was not a general limitation but applied only to the action mentioned in the section repealed. We have also held that the word "heirs" in the act of 1875, repealing the act of 1869, must be restricted to mean only "widow," or "widow and her children," or "child or children," if no widow; that the word "heirs" has the same meaning as in § 495, Laws 1854, supra (§ 4838, Bal. Code). Noble v. Seattle, supra.
This being the case, the statute of limitations applying to actions in favor of the widow and children for injuries to the person of another or the rights of another, is the same when an action is waged under § 4828, Bal. Code, as it originally was under § 4838, Id. Under § 4, Laws 1854, p. 363 (§ 4800, Bal. Code), the time in which such actions could be brought was limited to three years from the injury. The injury alleged in the complaint occurred on the 27th of July, 1898, and the complaint was filed on August 9, 1900,-less than three years from the time of
Dec. 1901.] Opinion of the Court-DUNBAR, J.
the injury and therefore within the time prescribed by law.
The judgment of the court below is reversed, and this cause is remanded for further proceedings. The appellants to recover their costs on this appeal.
REAVIS, C. J., and FULLERTON, DUNBAR, ANDERS, MOUNT and HADLEY, JJ., concur.
[No. 4008. Decided December 6, 1901.]
W. E. MEEK, Respondent, v. HARRY WHITE, Appellant. 8701
LIMITATION OF ACTIONS
ABSENCE FROM STATE- PLEADING.
Under Bal. Code, § 4808, which suspends the running of the statute of limitations during defendant's absence from the state, where an allegation of non-residence of the defendant is denied in the answer and an affirmative defense set up that defendant was a resident during all the time from the incurring of liability up to the commencement of the action, an issue of fact is raised by such answer, and the sustaining of a demurrer thereto is erroneous.
Appeal from Superior Court, King County.-Hon. FRANK H. RUDKIN, Judge. Reversed.
John E. Humphries and Harrison Bostwick, for appellant.
Lee De Vries, for respondent.
The opinion of the court was delivered by
DUNBAR, J.-The complaint alleges that on the 6th day of October, 1893, plaintiff's assignor recovered judgment against the defendant for the sum of $1,443.77 and costs. Other sufficient allegations were made, and subdivision 3 of the complaint alleged "that for more than three years last past the said defendant, Harry White,