Erhardt v. Havens, Inc.

• Citation: 53 Wn.2d 103,330 P.2d 1010
• Decision Date: 30 October 1958
• Docket Number: No. 34629,34629
• Court: Washington Supreme Court
• Parties: Randy Lee ERHARDT, a Minor, and Bonnie Joyce Erhardt, a Minor, by their Guardian ad litem, Pete V. Erhardt, Appellants, v. HAVENS, INC., a corporation, d/b/a Jane O'Brien Hospital, Respondent.

Page 103

53 Wn.2d 103

330 P.2d 1010

Randy Lee ERHARDT, a Minor, and Bonnie Joyce Erhardt, a

Minor, by their Guardian ad litem, Pete V.

Erhardt, Appellants, v. HAVENS, INC., a corporation, d/b/a Jane O'Brien Hospital, Respondent.

No. 34629.

Supreme Court of Washington, Department 2.

Oct. 30, 1958.

Keogan & Kinnie, Spokane, for appellants.

MacGillivray, Jones, Clark & Jones, Spokane, for respondent.

FOSTER, Justice.

The infant appellants, plaintiffs below, by their father as guardian, sued the respondent hospital for their own loss in consequence of the alleged negligent injury to their mother. A demurrer to the complaint was sustained and thereafter a final judgment dismissing the action was entered, from which this appeal is taken.

The gist of the complaint is that the appellant minor children were damaged by the negligent injury of their mother. It is alleged that the mother was a paying patient in the respondent hospital, that as a result of the hospital's negligence the mother is permanently paralyzed so that all of her wants must be supplied through the efforts of others, and that she has lost all of her mental powers so that she is unable to recognize her children. It is further alleged that there is no hope of recovery and that, consequently, the children are damaged to the same extent as if their mother were dead.

Respondent hospital contends that in an action by the mother for her own injury, the damages here claimed by the children would be a proper item to be considered by the jury in assessing the damage, and that the law does not sanction an action by one person for injuries to another except in wrongful death actions. Respondent, in words, concedes that the items of damage complained by the children would be proper in an action by their mother. This concession is:

'If, in the instant case, the injury was such as to disable the mother from supporting and providing care, training and education for her minor children, certainly such elements of damage would be sought, and to the extent provable, would be recoverable in an action maintained by the mother. * * *'

We are not advised nor permitted to speculate why the father, who is the guardian of the infant plaintiffs and the husband of their mother, did not bring the action in his own name; nor need we stop to consider whether the respondent, as a result of its concession here respecting the item of damage alluded to, would be estopped to deny it in an action by the father. ¹

The cause of action for personal injuries to a married woman living with her husband is community personal property, and must be brought in the name of the husband who has the management and control of the personal property (Hawkins v. Front Street Cable Ry. Co., 3 Wash. 592, 28 P. 1021, 16 L.R.A. 808), and, although the wife is a proper party in such an action, she is not a necessary one and can sue in her own name only when living separate and apart from her husband. RCW 26.16.130; Clark v. Beggs, 138 Wash. 62, 244 P. 121; Hynes v. Colman Dock Co., 108 Wash. 642, 185 P. 617; Hammond v. Jackson, 89 Wash. 510, 154 P. 1106; Schneider v. Biberger, 76 Wash. 504, 136 P. 701, 6 A.L.R. 1056. But here the question is: Can the children sue by their guardian for their own damage in consequence of an injury to the mother? The trial court, in dismissing the action, held that the children had no such right. The reported cases, with one exception presently noticed, are unanimous that such an action does not exist. Halberg v. Young, 1957, 41 Hawaii 634; Gibson v. Johnston, Ohio App., 144 N.E.2d 310; Jeune v. Del E. Webb Const. Co., 77 Ariz. 226, 267 P.2d 723; Eschenbach v. Benjamin, 195 Minn. 378, 263 N.W. 154. There are three diversity cases: Meredith v. Scruggs, 9 Cir., 1957, 244 F.2d 604; Turner v. Atlantic Coast Line R. Co., D.C.Ga.1958, 159 F.Supp. 590; Hill v. Sibley Memorial Hospital, D.C.D.C.1952, 108 F.Supp. 739. In the one exception, which is a diversity case, Scruggs v. Meredith, D.C.Hawaii 1955, 134 F.Supp. 868, the Federal trial court judge held that there was such an action under the common law of the Territory of Hawaii. This decision provoked a veritable flood of case notes in the nation's law reviews. ²

But as United States courts in diversity cases sit only as another state court applying state law (Erie R. Co. v. Tompkins 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188), the court of appeals for the ninth circuit reversed Meredith v. Scruggs, 9 Cir., 244 F.2d 604, because of the adverse decision of the territorial supreme court. Halberg v. Young, supra.

Appellants make a very strong argument based primarily upon the analogy of the wrongful death action that the children's damage is equivalent to that which they would sustain in their mother's death, and upon the cases holding that a child may recover for the intentional tort of alienating the affections of a parent. Prosser tells us that, at the time of the second edition of his text on torts (1955), ³ in ten states by decisional law, a child has no such right of action and that four other states sustain the right of action. It is sufficient for present purposes to say that such torts are intentional and that the erring parent may not maintain the action. ⁴

Here, on the other hand, the father can maintain the action without the...