Balmer v. Dilley

• Citation: 502 P.2d 456,81 Wn.2d 367
• Decision Date: 02 November 1972
• Docket Number: No. 41979,41979
• Parties: Charles R. BALMER, Personal Representative of the Estate of David Balmer, et al., Appellants, v. Howard L. DILLEY et al., Respondents. Thad TAYLOR, Sr., Administrator of the Estate of Thad Taylor, Jr., Appellant, v. Howard L. DILLEY et al., Respondents.
• Court: United States State Supreme Court of Washington

Page 367

81 Wn.2d 367

502 P.2d 456

Charles R. BALMER, Personal Representative of the Estate of David Balmer, et al., Appellants, v. Howard L. DILLEY et al., Respondents.

Thad TAYLOR, Sr., Administrator of the Estate of Thad

Taylor, Jr., Appellant, v. Howard L. DILLEY et al., Respondents.

No. 41979.

Supreme Court of Washington, En banc.

Nov. 2, 1972.

Bianchi & Tobin, Gordon R. Tobin, Seattle, K. D. Peterson, Ephrata, for appellants.

Nashem, Prediletto & Brooks, Norman R. Nashem, Jr., Yakima, for respondents.

HUNTER, Associate Justice.

On December 16, 1969, a one-car accident occurred near Vantage, Washington on Highway 90 at about 8 p.m. Thad Taylor, Jr. and David Balmer were killed.

Several days before the accident the two boys and the defendant (respondent), Steven H. Dilley, had formed a plan to go to Wenatchee to visit mutual friends. All of the boys lived in or near Royal City.

On the evening of the accident they met about 6 p.m. at the Taylor residence. Soon thereafter they purchased some rims in order to put snow tires on the defendant's automobile. Each of the two boys, now deceased, also bought $3 worth of gasoline for the defendant's automobile. They then went to Vantage where the two boys worked in a service station. The tires were mounted on the rims which they had purchased, but it was found that the rims would not fit the car. Consequently, they put the worn rear tires back on the automobile and started toward Wenatchee. The vehicle was then equipped with two front tires which were good and two rear tires which were worn.

The car had crossed the Vantage bridge going to the service station, and then crossed again in starting toward Wenatchee. They went up a long hill easterly from the bridge. The accident scene was a short distance after they had passed the crest of the hill.

The speed of the vehicle was in dispute. None of the boys had been drinking. The defendant was starting to pass a large truck when he lost control and went into a guard rail producing the fatal accident.

This action was instituted by the parents of both deceased boys under RCW 4.24.010 (known as the wrongful death statute), and by the personal representatives under RCW 4.20.046 (known as the survival statute). The matter was tried to a jury, whereupon a verdict was returned for the defendant. After motions for judgment notwithstanding the verdict and for new trial were overruled, the judgment was entered dismissing the action with prejudice. The plaintiffs appealed. The Balmer action was subsequently settled and we are only concerned with the Taylor action. Thad Taylor, Sr., as administrator of the estate of Thad Taylor, Jr., and Thad Taylor, Sr. and Sylvia Taylor, husband and wife, as parents, are the plaintiffs (appellants).

The plaintiffs contend the trial court erred in giving the instruction on contributory negligence of the boys, the deceased passengers in the car. We agree. The record shows it had snowed earlier in the day of the accident. While the highway from Royal City to Vantage was free of snow, there was snow and slush on the Vantage bridge which the boys crossed before going to the service station in Vantage, and they were aware of the desirability of having snow tires for the trip.

This record, however, does not show beyond speculation that the accident which subsequently ensued was proximately caused by the worn tires. There was evidence that the car skidded and veered into a guard rail; also, that in starting to pass a large truck, slushy snow was thrown upon the windshield of the death car in such quantity as to have temporarily blinded the driver, causing him to lose control. The driver could have placed his brakes on with such suddenness that the car would have veered into the guard rail irrespective of the worn tires, particularly if traveling at an unusual speed. We believe that to say the worn tires were the proximate cause of the accident would be resorting to speculation under this record. Moreover, the act of the boys riding in a car with worn tires on slushy snow roads does not in itself constitute contributory negligence. As passengers they were entitled to rely upon the driver to operate his car with a higher degree of care, in a more cautious manner, knowing that he knew the rear tires were worn and that he was aware of the hazards of the slush and snow on the roadway. Moreover, no rule of the road has been cited to have been violated by the operation of a car with worn tires under these circumstances.

The judgment entered upon the jury verdict for the defendant should therefore be reversed and a new trial granted the plaintiffs.

For the guidance of the court and counsel upon the retrial of the case, we will consider the plaintiffs' remaining assignments of error.

The plaintiffs contend the trial court erred in failing to instruct the jury in the survival action on damages as to evidence of loss of future earnings.

We discussed the right of the jury to consider this element of damages in Warner v. McCaughan, 77 Wash.2d 178, 460 P.2d 272 (1969), and there considered the elements of damages available under the survival statute, RCW 4.20.046:

(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. . . .

We there held that under this statute all causes of action of a deceased survive, and are assignable, which include all elements of damage except those enumerated in the proviso of the statute, 'pain and suffering, anxiety, emotional distress, or humiliation personal to and suffered by a deceased.' We cited with approval Hudson v. Lazarus, 95 U.S.App.D.C. 16, 217 F.2d 344, 348 (1954), quoting therefrom the following:

We think a disability is not, in itself, 'pain and suffering'. It is not within the ordinary meaning of those words and we see no reason to think Congress used the words in a special sense. A disabled man may or may not suffer pain. Even if he does, after his death his administrator cannot recover for his pain and suffering. But in our opinion his administrator may recover for his disabilities.

(3) Permanent loss of earning power is usually the chief economic harm caused by a permanent injury. If Hudson in his lifetime had recovered judgment in this action, his damages would have included an allowance for prospective loss of earnings during his normal life expectancy, discounted to present worth, and with such other adjustments as the facts may require. When he died his right to these damages passed under the Survival Act to his administratrix, the present appellant, for the Act provides that the injured person's right of action for physical injury 'shall survive * * * except for pain and suffering'.

(Italics ours.)

In this state, were the decedent theoretically able to bring the action, he would have been entitled to recover damages for loss of future earnings during his normal life...