Clason v. Velguth

• Decision Date: 17 May 1932
• Docket Number: 23477.
• Citation: 11 P.2d 249,168 Wash. 242
• Parties: CLASON v. VELGUTH.
• Court: Washington Supreme Court

11 P.2d 249

168 Wash. 242

CLASON v. VELGUTH.

No. 23477.

Supreme Court of Washington

May 17, 1932

Department 1.

Appeal from Superior Court, Spokane County; Fred H. Witt, Judge.

Action by Louise Clason, as administratrix of the estate of George W. Clason, deceased, against Arthur Velguth. Judgment for plaintiff, and defendant appeals.

Reversed with directions.

O. C Moore, of Spokane, for appellant.

Hamblen & Gilbert and H. M. Hamblen, all of Spokane, for respondent.

MITCHELL J.

This action arose out of a collision of automobiles in the intersection of Monroe street and Knox avenue in Spokane shortly after dark. Monroe street is a north and south arterial highway upon which is operated a double-track street car line. Knox avenue runs east and west crossing Monroe street. The deceased, George W. Clason, was driving westward along the north side of Knox avenue, while Arthur Velguth the defendant, was driving south along the west side of Monroe street. The collision occurred at the crossing of these two lines of travel, about four feet west of the west street car track. It was alleged in the complaint that the collision was caused by the negligence of the defendant on account of his excessive speed and reckless driving while intoxicated, and that without looking, warning, or attempting to slow down, the defendant drove his car against the right side of decedent's car and caused injuries to the decedent from which he died, and damaged decedent's car.

The action was brought by Louise Clason, as administratrix of the estate of George W. Clason, deceased, under sections 183 and 183-1, Rem. Comp. Stat. She sued for the benefit of herself as surviving wife and for the benefit of the children of the decedent and herself, and also to recover for necessary expenditures for physicians, nurses, and hospital fees, and also for damages to the automobile.

The defendant denied all charges of negligence and alleged that the decedent was guilty of contributory negligence that barred recovery, in that he violated the provisions of an ordinance under which markers had been placed on Knox avenue at Monroe street, an arterial highway, by negligently failing to bring his automobile to a stop at the markers and thereafter failed to proceed with caution and yield the right of way to appellant's car. The allegations of contributory negligence were denied by a reply.

The trial resulted in a verdict for the plaintiff. The defendant has appealed from a judgment on the verdict.

First, it is claimed the court erred in overruling a general demurrer to the complaint for failure to specify 'approximately the speed at which the defendant is alleged to have driven and exactly the lawful speed at the time and place of the alleged offense,' as required by subdivision (c) of section 3, chapter 309, p. 772, Laws of 1927, Rem. Comp. Stat. Supp. 1927, § 6362-3. Respondent contends that the provision referred to applies only to criminal actions. The general demurrer goes to the whole complaint, and under the rule of liberal construction to be given a complaint as against a general demurrer, it appears that there is sufficient in the complaint to sustain it outside of specifying the approximate speed and exactly the lawful speed of appellant's car at the time and place in question.

It is claimed the court erred in permitting Louise Clason to testify that she was without means, had never learned or qualified to do work of any kind, and did not know what she was 'going to have to do.'

Section 183, Rem. Comp. Stat., gives a right of action when the death of a person is caused by the wrongful act of another, to be maintained by the personal representative of the deceased against the one causing the death.

Section 183-1, provides: 'Every such action shall be for the benefit of the wife, husband, child or children of the person whose death shall have been so caused. If there be no wife or husband or child or children, such action may be maintained for the benefit of the parents, sisters or minor brothers, who may be dependent upon the deceased person for support, and who are resident within the United States at the time of his death. In every such action the jury may give such damages as, under all circumstances of the case, may to them seem just.'

Two classes of persons are thus mentioned as beneficiaries: (1) Wife, husband, child, or children without reference to their financial condition; (2) if there are none of the first class, then the action may be maintained for the benefit of the parents, sisters or minor brothers who may be dependent upon the deceased person for support, etc. In the second class, dependence has to be shown as a prerequisite to the right of recovery, but not so as to the first class who are entitled to recover at all events, in this regard. And, although the statutory rule that 'in every such action the jury may give such damages as, under all circumstances of the case, may to them seem just,' is a liberal rule, it is not intended thereby to alter or destroy the commonly accepted province of the jury to be judges of the character and weight of the testimony, such judgment to be exercised under some rule so that any abuse of discretion could be avoided or ascertained and corrected. Nor is it meant to leave the question of damages to the unguided judgment of a jury, nor to set at naught those rules of evidence which properly condemn irrelevant and prejudicial testimony. As mentioned in Walker v. McNeill, 17 Wash. 582, 50 P. 518, 522, the statute at that time allowed the giving of 'pecuniary or exemplary' damages. In the present statute, however, enacted in 1917, those words are omitted. The word 'pecuniary' was omitted manifestly because in Walker v. McNeill it was held that the word should not be construed in a strict sense; that, 'it will not exclude the loss of nurture, of the intellectual, moral, and physical training which only a parent can give to children, nor is the same certainty of loss required to be established as in ordinary actions.'

The word 'exemplary' was omitted obviously because as early as 1891 in the case of Spokane Truck & Dray Co. v. Hoefer, 2 Wash. 45, 25 P. 1072, 1073, 11 L. R. A. 689, 26 Am. St. Rep. 842, this court adopted the rule, consistently followed since that time, in the absence of specific statute to the contrary, that: 'Damages are given as a compensation or satisfaction to the plaintiff for an injury actually sustained by him from the defendant. They should be precisely commensurate with the injury, neither more nor less; and this whether it be to his person or his estate.'

The question perplexing us relates to a loss sustained and to damages as compensation to the plaintiff for an injury received from the defendant, and in connection therewith the question of the proper kind of evidence admissible in such cases. In this connection it is difficult to see how one wrongfully causing the death of another can be called upon to pay under a rule in any way fixed by the financial or pecuniary ability, or the earning capacity, or lack of it, of the beneficiary, in no way traceable to the person required to pay.

There appears to be a conflict in the authorities on this point, as suggested in 17 C.J. 1362, § 253, and cases cited. Some of the apparent conflict will be found to arise because of different statutes with reference to whether there is a necessity of showing dependence of the beneficiaries in order to recover, and also because of the character of the proof as to whether it relates to the loss to or the necessities of the beneficiary. The question is a new one in this state and in considering authorities from other states that are cited by counsel, we feel free to accept the reasoning of those courts which more strongly appeal to our judgment as applicable to this case.

Under a similar statute in California (Code Civ. Proc. § 377), which provided 'such damages may be given as under all the circumstances of the case, may be just,' the Supreme Court of that state in Green v. Southern Pacific Co., 122 Cal. 563, 55 P. 577, held it was reversible error to allow a beneficiary to testify she had no property of her own upon which to maintain herself. The court said: 'This evidence had no pertinent or competent bearing upon the extent of injury suffered by plaintiffs, for which defendant could be held responsible; and its only effect and inevitable tendency was undoubtedly to excite the sympathies of the jury, and improperly influence their finding upon the question of damages. Such evidence is never admissible in a case of this character, for the very simple reason that the extent of a defendant's responsibility for the results of his negligence is not to be measured by the condition, as to affluence or poverty, of the injured party at the time of suffering the injury, since that is a condition for which the defendant is in no way responsible; and as suggested by this court in Mahoney v. Railway Co., 110 Cal. 471, 476, 42 P. 968 , in discussing the same question, 'Such testimony could have been offered for no other purpose than to create prejudice, and should have been excluded.' See, also, Malone v. Hawley, 46 Cal. 409; [C., B. & Q.] Railway Co. v. Johnson, 103 Ill. 512; Pennsylvania Co. v. Roy, 102 U.S. 451 ; Railway Co. v. Moore,

61 Ga. 151.' See, also, 8 California Jurisprudence, 952, § 15.

In Preble v. Wabash R. Co., 243 Ill. 340, 90 N.E. 716 717, the Supreme Court said: 'It was proper to prove that John E. Aiten was the sole support of his widow at the time of his death, and that was the effect of the statement that the widow was dependent upon her husband for support. Pennsylvania Co. v. Keane, 143 Ill. 172, 32 N.E. 260; Swift & Co. v. Foster, 163 Ill. 50, 44 N.E. 837; St....