Clark v. Icicle Irr. Dist.

• Decision Date: 13 October 1967
• Docket Number: No. 38899,38899
• Court: Washington Supreme Court
• Parties: Grayson CLARK, Jr., and Karen Clark, husband and wife, Respondents, v. ICICLE IRRIGATION DISTRICT, a corporation, Appellant.

Page 201

72 Wn.2d 201

432 P.2d 541

Grayson CLARK, Jr., and Karen Clark, husband and wife, Respondents, v. ICICLE IRRIGATION DISTRICT, a corporation, Appellant.

No. 38899.

Supreme Court of Washington, Department 1.

Oct. 13, 1967.

Hughes & Jeffers, Joseph L. Hughes, W. Gordon Kelley, Wenatchee, for appellant.

Charles W. Cone, Wenatchee, for respondents.

HILL, Judge.

On February 27, 1965, the bank of an irrigation ditch, owned and maintained by the defendant, had broken or washed out, sending a large volume of water and mud approximately a hundred yards down a steep hill and against and through the house in which Grayson Clark, Jr., his wife, and their 20-month-old son were sleeping. Clark and his wife escaped with their lives. The child was killed; the room he occupied being filled almost to the ceiling with mud, dirt and debris. Even trees in the path of the mud and water had been carried down the hill and into the house.

The Clarks brought this action against the Icicle Irrigation District to recover damages in the sum of $30,000 for the death of the child (divided $15,000 for the loss of companionship, and $15,000 for the loss of his services until he attained 21 years of age). Such an action by the parents for the death of a minor child is authorized by RCW 4.24.010. ¹ They also asked $4,839.87 for the loss of personal property (furniture, fixtures, appliances and clothes); $500 for injuries sustained by Mr. Clark, and $195 for the child's funeral expenses. They secured a judgment for $33,025, which was segregated by a special finding of the jury into $30,000 for the death of the child (which under the pleadings and the instructions must be divided $15,000 for the loss of companionship; $15,000 for the loss of services), together with $195 for the funeral expenses and $2,830 for property damage.

The issues raised on this appeal are: liability, and if there is liability, whether the $30,000 verdict for the death of the child is excessive.

The house occupied by the Clarks belonged to the irrigation district, which had employed Clark until the preceding November. At the time of the slide the season for irrigating was over and, supposedly, there was no water in the ditch except such as came from rain and snow melting under the rain and a warm Chinook wind.

No one could say with certainty what caused the section of the bank of the ditch on the downhill side to go out and come cascading down the hill against and through the house occupied by the Clarks. The jury may well have reached its decision concerning liability on the basis of the res ipsa loquitur instruction which read:

You are instructed that when a thing which causes an injury to another is shown to be under the management and control of the person charged with negligence in operation or maintenance of such thing, or in the failure to keep it in a reasonably safe condition, and if it (is) shown that an accident happened which, in the ordinary course of things, does not happen if those in charge of the management and maintenance of the thing exercise reasonable care, then the happening of the accident alone affords reasonable evidence in the absence of explanation by the person charged with negligence that the accident arose from the want of reasonable care on the part of such person. ² (Instruction No. 7)

Although the defendant excepted to the giving of any res ipsa loquitur instruction, no error is assigned on this appeal either to the giving of the instruction or to its wording.

Cases involving breaks in irrigation ditches seem particularly appropriate for a proper res ipsa loquitur instruction. This case involves such an occurrence as would not, in the course of ordinary experience, occur without negligence. Control and management of the ditch was in the defendant, and it had superior means of information concerning the circumstances surrounding the break. All the requisites for the application of res ipsa loquitur are present. We approved its use in the similar case of Dalton v. Selah Water Users' Ass'n, 67 Wash. 589, 122 P. 4 (1912).

The plaintiffs presented evidence of the defendant's failure to remove obstructions from the ditch and a spillway. That evidence failed, however, to establish that such failure was the cause of the damages sustained.

However, the fact that the plaintiffs may have attempted, but failed, to prove that certain specific claimed acts of negligence were the proximate cause of the break in the bank of the ditch, does not prevent the application of the doctrine of res ipsa loquitur. As we said in Vogreg v. Shepard Ambulance Service, Inc., 47 Wash.2d 659, 663, 289 P.2d 350, 352 (1955),

If the doctrine applies, * * * the plaintiffs are not to be penalized by an honest, but perhaps unsuccessful, effort to put in evidence whatever inadequate information they have concerning the happening.

And in Kemalyan v. Henderson, 45 Wash.2d 693, 706, 277 P.2d 372, 379 (1954), it was pointed out that this court has held:

(T)hat a plaintiff can allege and attempt to prove specific acts of negligence on the part of defendant and still rely on Res ipsa loquitur * * *.

Still more recent support for such a holding is found in Bolander v. Northern Pacific Ry. Co., 63 Wash.2d 659, 662, 388 P.2d 729 (1964).

The defendant attempted to meet the inference of negligence permitted by res ipsa loquitur by evidence that the cause of the damages sustained by the plaintiffs was an 'Act of God.' The jury was instructed that if the cause of the slide was an 'Act of God,' it was a complete defense 'regardless of any duty that might have been placed on the defendant in the operation of its ditch.' By its verdict, the jury clearly rejected that defense, and its determination of liability can be upheld on the basis of res ipsa loquitur.

Having concluded that the jury's verdict and the judgment based thereon could be sustained on the issue of liability, we come to the consideration of the defendant's contention that the verdict of $33,025 and the judgment based thereon is excessive.

There was an express finding by the jury that the verdict was allocated $30,000 for the death of the child; $2,830 for the damage to personal property; and $195 for the funeral expenses of the child. The claim that the damages are excessive is limited to the $30,000 item.

The plaintiffs, in their complaint, asked for $15,000 for the loss of companionship of their child and $15,000 for the loss of his services and earnings; and the jury was so instructed. ³

Not until April of 1967, in the case of Lockhart v. Besel, 71 W.D.2d 109, 426 P.2d 605, did we recognize that the measure of damages allowable in an action by parents for the wrongful death of a minor child could include--in addition to the value of the child's services during his minority--the loss of companionship during the child's minority.

In that case we granted a new trial in order that the loss of companionship during the child's minority might be included in the measure of damages submitted to the jury. We there said (p. 114, 426 P.2d p. 609) We hold that the measure of damages under RCW 4.24.010, * * * should be extended to include the loss of companionship of a minor child during his minority without giving any consideration for grief, mental anguish or suffering of the parents by reason of such child's wrongful death. This rule is consistent with the better reasoned cases and the modern trend in other jurisdictions of this country. (citing cases) * * *

The reason for this extension of the measure of damages in actions for damages for the wrongful death of a child is stated at some length in Lockhart v. Besel, supra, and need not be repeated here. In summary, it was that the measure of damages to which we had been limited, i.e., the value of the services of the child from the date of death until he would have attained the age of majority, less the cost to his parents of his support and maintenance during this interval, was unjust and archaic. In most instances it was impossible to apply that rule honestly and find any net pecuniary value to the parents from the services of his minor child. Actually, very few people raise children with any expectation of economic gain.

We have adopted loss of companionship as a proper element of damages in an action for the wrongful death of a child, but with no intent to eliminate the loss of services since there are some instances where the services of a child do have a net pecuniary value to a parent under the instruction given by the trial court, ⁴ which has been frequently approved. This element of damages should be retained, but applied with a measure of intellectual honesty.

We must in this case, as heretofore indicated, divide the $30,000 verdict for the death of the child, $15,000 for loss of companionship, and $15,000 for loss of services. This was the plaintiffs' purpose and intention, and these were the exact amounts which the plaintiffs requested for each item of damage in their complaint.

We will consider first the damages claimed and awarded for the loss of companionship. One of the relatively few attempts to define companionship is found in Wycko v. Gnodtke, 361 Mich. 331, 339, 105 N.W.2d 118, 122 (1960): ⁵

(J)ust as an item of machinery forming part of a functioning industrial plant has a value over and above that of a similar item in a showroom, awaiting purchase, so an individual member of a family has a value to others as part of a functioning social and economic unit. This value is the value of mutual society and protection, in a word, companionship. * * *

California has upheld an award of $15,000 general damages for the death of a 10-month-old infant. Couch v. Pacific Gas & Electric Co., 80 Cal.App.2d 857, 183 P.2d 91 (1947). There had been a reduction by the trial judge of a verdict for $27,500. In Tyson v. Romey, 88 C.A.2d 752, 756, 199 P.2d 721 (1948), an award of $18,500 for the death of a 5-year-old child was approved. This had...