Heath v. Stephens

• Decision Date: 28 July 1927
• Docket Number: 20432.
• Parties: HEATH v. STEPHENS et ux.
• Court: Washington Supreme Court

258 P. 321

144 Wash. 440

HEATH v. STEPHENS et ux.

No. 20432.

Supreme Court of Washington

July 28, 1927

Department 2.

Appeal from Superior Court, Yakima County; V. O. Nichoson, Judge.

Action by Laura Heath, administratrix of the estate of Charles Heath, deceased, against E. W. Stephens and wife. Judgment for plaintiff, and defendants appeal. Affirmed.

Ralph S. Pierce, of Seattle, and McAulay & Freece of Yakima, for appellants.

Snively & Bounds, of Yakima, for respondent.

TOLMAN J.

Respondent as plaintiff, prosecuted this action to recover for the wrongful death of her decedent, killed in an automobile accident, for damages to his automobile, in which he was riding at the time, and for funeral expenses. The jury by its verdict allowed $7,500 for the death, $355 for the damage to the automobile, and $426 for funeral expenses. From a judgement on the verdict the defendants have appealed.

Appellants in due course, moved for a nonsuit, for an instructed verdict, and for judgment non obstante veredicto, and the denial of each of these motions is assigned as error. After a careful reading of all of the testimony, we are satisfied that this was a typical jury case and that there was no error in these rulings. A recital of the testimony and an analysis of the conflicting portions bearing on the main issues would add nothing to the value of this opinion as a precedent, and any attempt in that direction is therefore omitted.

It is strenuously argued that respondent's counsel improperly and purposely sought to inject the idea of insurance into the case, in defiance of the rule so often stated by this court and so well defined in Lucchesi v. Reynolds, 125 Wash. 352, 216 P. 12. During the examination of a juror he was asked if he had ever been in the insurance business. Objection was interposed, and some argument thereon was had in the presence of the prospective jurors in the box, but upon the first suggestion to that effect by counsel for appellants the remainder of the argument and reasons advanced by respondent's counsel for asking the question, the ruling of the court, and the other matters of similar import which followed, were had without the hearing of the prospective jurors. The reason given for the attempted examination was that counsel said he was advised that there were at least three insurance men on the panel; that he knew the defendants had indemnity insurance, and it was his endeavor to ascertain if any prospective juror was in any wise interested in the insurance company which might be liable. The trial court properly and wisely directed how the questions should be framed so as to protect respondent's rights with the least possible suggestion of there being any insurance company involved in the case, and, in the absence of any showing that respondent's counsel acted in bad faith, we cannot hold that error was committed.

The deceased was 62 years old at the time of his death. No proof of his life expectancy was offered, and except that he was a farmer by occupation and the nature and extent of his operations as such, there was no direct or exact proof as to his earning capacity; nor was there any exact proof as to the financial benefits flowing to the wife and infant child from him during his lifetime. Notwithstanding, the court gave the usual instruction, in which it was said:

'You have the right to take into consideration the age of deceased, his expectancy of life, his earning capacity, his probable earnings and the probable amount thereof his wife and children would have received. * * *'

From this premise it is argued that there was no basis upon which the verdict of $7,500 can rest, and also that the instruction from which we have quoted was erroneous. According to the weight of authority the courts will take judicial notice of the standard tables of mortality. Jones on Evidence, § 129; 19 R. C. L. 221. And therefore appellants might have had the jury instructed definitely as to the life expectancy of the deceased, had a request therefor been made. Failing such an instruction, we cannot say that the men and women of whom our juries are composed have not had the average and ordinary experiences of life and are not in a position to know that a man of 62, hale, strong, and hearty, had the expectancy of a number of years of usefulness before him, but...