Borland v. Pacific Meat & Packing Co.

• Decision Date: 08 July 1929
• Docket Number: 21782.
• Citation: 153 Wash. 14,279 P. 94
• Court: Washington Supreme Court
• Parties: BORLAND v. PACIFIC MEAT & PACKING CO. et al.

279 P. 94

153 Wash. 14

BORLAND v. PACIFIC MEAT & PACKING CO. et al.

No. 21782.

Supreme Court of Washington

July 8, 1929

Department 1.

Appeal from Superior Court, King County; Calvin S. Hall, Judge.

Action by William Borland against the Pacific Meat & Packing Company, a corporation, and others. From a judgment against named defendant, it appeals. Affirmed.

Poe, Falknor, Falknor & Emory, of Seattle, for appellant.

Vanderveer & Levinson, of Seattle, for respondent.

TOLMAN J.

This action was instituted by respondent, as plaintiff, to recover for personal injuries received as the result of a collision between a truck, owned and operated in the business of appellant, and an automobile, owned by the defendants Thompson; respondent himself occupying the position of an innocent bystander. The cause was tried to a jury resulting in a verdict in favor of defendants Thompson and against the appellant in the sum of $8,000. A judgment was entered on the verdict, and this appeal followed.

Appellant does not question the sufficiency of the evidence to sustain the verdict, nor the correctness of the instructions given to the jury. There are several minor assignments of error, based on the admission and exclusion of the evidence, but after careful examination we are satisfied that none of these is well taken. The principal assignments to go the admissibility of annuity tables, or the cost of an annuity, misconduct of counsel for respondent in his argument to the jury, and the amount of the verdict.

Respondent testified that he was 56 years of age, or perhaps 57, and there was evidence that he had told others that he was 66 years of age. There was also evidence from which the jury may have concluded that respondent was permanently injured and would be unable to ever again follow his usual occupation or any other gainful employment within his capacity. Life expectancy at the various ages referred to was shown by mortality tables. Thereupon a witness engaged in the business was called who explained what an annuity is and then testified that at established rates an annuity of $100 per month or $1,200 per year would cost at the age of 56, $15,004.20; at the age of 57, $14,638.20; and at the age of 66, $11,209.40.

No objection was made to the manner or form in which this proof was offered, but then and now appellant urges that any proof of the cost of an annuity is improper because the evidence tends to show that he was not a sound man prior to the injury; that his earning days might have been brief if no accident had intervened; and, if he lived out his expectancy there was no assurance that he could have continued to earn until his death and almost certainly not at the rate of $100 per month, which was approximately his earning capacity before the injury.

Such considerations are not peculiar to this particular case, but must inhere, more or less, in all personal injury cases.

Mortality tables, which are generally received in evidence, are based upon the law of averages, and like objections might be urged to them on the basis of the state of health of the particular person immediately before the injury. All such matters can be argued to the jury, and the true purpose for which such evidence is admitted can be and should be covered by instructions when requested. Upon this point appellant relies upon Rooney v. New York, New Hampshire & H. R. Co., 173 Mass. 222, 53 N.E. 435, where the reasons against the use of annuity tables are well stated as follows: 'The practical difficulty in using annuity tables in cases of this kind, and in making computations upon the principle on which annuity tables are founded, is that there are too many elements which are uncertain, and which cannot be reduced to any close approximation to certainty. These tables are usually computed on the probabilities for sound lives, while in the cases on trial there are often many circumstances which make the probabilities as to length of life different from those estimated in the tables. In estimating damages for personal injury, the amount to be allowed for loss of liability to earn money depends upon conditions which are not constant, but which vary from many causes. The physical condition of the plaintiff would very likely have changed from time to time from other causes, if there had been no accident. Her physical condition is usually likely to change as the years go on after the accident. The income to be obtained from labor or effort in any given calling is not a constant quantity from year to year as time goes on, but the ability to procure employment, and the prices paid for services, are likely to change.'

Also upon McCaffrey v. Schwartz, 285 Pa. 561, 132 A. 810 in which it is said: 'After taking into account the income itself, the circumstances under which it was earned by plaintiff, and all factors affecting the likelihood of its continuance, increase, or diminution, as unaffected by the accident, the jurors are to say what, in their opinion, is fair compensation for the...