Hinzman v. Palmanteer, 42195

• Decision Date: 19 October 1972
• Docket Number: No. 42195,42195
• Parties: Lee Ann HINZMAN, as the administratrix of the Estate of Lauretta Lee Hinzman, deceased, et al., Respondents, v. Gene A. PALMANTEER et al., Appellants.
• Court: Washington Supreme Court

Page 327

81 Wn.2d 327

501 P.2d 1228

Lee Ann HINZMAN, as the administratrix of the Estate of Lauretta Lee Hinzman, deceased, et al., Respondents, v. Gene A. PALMANTEER et al., Appellants.

No. 42195.

Supreme Court of Washington, En Banc.

Oct. 19, 1972.

Jones, Read & Church, Dale W. Read, Vancouver, Skeel, McKelvy, Henke, Evenson & Betts, Frederick V. Betts, Seattle, for appellants.

Boettcher, LaLonde, Kleweno, Lodge & Ladley, John L. LaLonde, Vancouver, for respondents.

UTTER, Associate Justice.

Lauretta Lee Hinzman, 7, died from injuries sustained in an accident while riding as a passenger in a truck driven by Gene A. Palmanteer and owned by Ray Irwin. Palmanteer was an employee of Ober Logging Company. Suit was brought on behalf of the estate of Lauretta and of her parents, Mr. and Mrs. Bernard Hinzman. The jury awarded the estate $8,400 and her parents, $16,500 against all defendants.

Appellants contend that the child's parents are entitled to recovery only for loss of love and companionship and her funeral expenses, and that the jury should not have been instructed they could allow recovery for 'destruction of the parent-child relationship'; that there was lack of proof to support any verdict in favor of the estate of the child; and, that the amount of recovery to the child's estate should in no event exceed the present cash value of her net income as distinguished from gross income. We find no error and affirm the judgment of the trial court.

Appellants' first claim of error is directed to the cause of action brought on behalf of the parents of the deceased child and that portion of instruction No. 5 which instructed the jury that in determining the amount of recovery for that cause of action they could consider 'the loss of love and companionship of their child and for the destruction of the parent-child relationship as under all the circumstances may be just.'

Appellants contend that love and companionship and parent-child relationship are one and the same thing and that the jury, by this instruction, could consider them as separate and distinct items and erroneously allow damages for each. Our court has held the statutory terms 'loss of love and injury to or destruction of the parent-child relationship' were intended by the legislature to add the elements of 'parental grief, mental anguish and suffering' as elements of damages as well as those elements contained within the term 'loss of companionship'. Wilson v. Lund, 80 Wash.2d 91, 491 P.2d 1287 (1971). The court did not err in instructing the jury in the words of the statute.

Appellants' remaining assignments of error all are directed to the determination by the jury that damages were properly recoverable by the estate of Lauretta Hinzman.

Recovery by the estate is sought under RCW 4.20.046. Under this statute, all causes of action brought on behalf of a deceased person survive to their personal representative except no recovery is allowed for damages for 'pain and suffering, anxiety, emotional distress, or humiliation personal to and suffered by a deceased.' In instruction No. 5, the court instructed the jury that, in determining the amount of the recovery in this cause of action, they

shall allow such sum as general damages as in your opinion will fairly and justly compensate her estate for her wrongful death. In this regard you may take into consideration and award compensation for the shortened life expectancy caused by her death, as well as the loss of the value of her future earning capacity caused by her wrongful death.'

Appellants do not attack the award as excessive, but claim the elements considered by the jury were not specific enough to allow the jury to reach a verdict on anything but speculation and conjecture, and that the instruction allowed the jury to consider items of general damages other than shortened life expectancy and loss of future earning capacity. We do not agree.

The sentence with reference to general damages lists the only items the jury was told were a part of general damages. We do not believe a fair reading of the word 'may', in this context, would allow the jury to consider anything other than the designated items.

Shortened life expectancy caused by the child's death and the resulting loss of value of her future earning capacity to her estate are specifically recognized as items of recovery not excluded by the statute. Warner v. McCaughan, 77 Wash.2d 178, 183, 460 P.2d 272 (1969). We there noted that damages to the deceased include "an allowance for prospective loss of earnings during his normal life expectancy, discounted to present worth, and with such other adjustments as the facts may require."

These damages, in the case of a 7-year-old child, are extremely nonspecific. The courts, however, refuse to deny recovery for that reason. Cox v. Remillard, 237 F.2d 909 (9th Cir. 1956); Lane v. Hatfield, 173 Or. 79, 143 P.2d 230 (1943). In Cox, the court noted

it was impossible to furnish all of the proof of anticipated earnings and savings which might be furnished in the case of an adult, but that circumstance does not mean that no damages whatever can be recovered . . .

Cox v. Remillard, Supra, at page 911. The court further indicated that, in cases of this character, it is not possible to prove damages with any approximation of certainty and the jury must estimate the damages as best they can by reasonable probabilities, based upon their sound judgment as to what would be just and proper under all of the circumstances. The court held it to be unnecessary for a witness to name a specific sum as the precise amount of the damages suffered.

The speculative nature of the damages in this case, based on earning capacity and other facets of a life still new and unformed, is not a reason for denying such damages altogether where the life expectancy of the child was before the jury, and the ultimate assessment of damages is one a reviewing court can control. Clark v. Icicle Irr. Dist., 72 Wash.2d 201, 432 P.2d 541 (1967); Rohlfing v. Moses Akiona, Ltd., 45 Haw. 373, 369 P.2d 96 (1961); Alleva v. Porter, 184 Pa.Super. 335, 134 A.2d 501 (1957).

Under some circumstances, not present in this case, a serious question of duplication of damages could be raised in actions brought both under RCW 4.20.046, the survival statute, and RCW 4.24.010, the wrongful death statute. As discussed extensively in Warner v. McCaughan, Supra, there is a definite distinction between the two statutes. In the survival statute, all causes of action brought on behalf of the deceased, with certain exceptions not here applicable, survive and the injured person's claim continues after death as an asset of his estate. One of the causes of action available to the estate is the claim for permanent loss of earning power. The claim for damages under the wrongful death statute is for a new cause of action for the benefit of the decedent's heirs, or next of kin, and is premised upon the alleged wrong to the statutory beneficiaries, not the estate.

In this suit, the estate of Lauretta Hinzman claimed damages under the survival statute for general damages consisting of loss of value of her future earning capacity as affected by her shortened life expectancy caused by her death.

The parents of the deceased also sought recovery under RCW 4.24.010, the wrongful death statute, for 'loss of love and companionship of the child and for injury to or destruction of the parent-child relationship . . .' As earlier indicated herein, this language provides recovery for (1) parental grief, mental anguish and suffering, and (2) loss of companionship, defined in Clark v. Icicle Irr. Dist., Supra, to be "the value of mutual society and protection." The parents did not seek all of the remedies available to them in the wrongful death action under RCW 4.24.010 and had they sought, as allowed by the statute, recovery for loss of 'services and support' a potential improper double recovery would have been possible. The anticipated contributions from the deceased to her parents for support could include a substantial portion of what had already been collected in the survival action as prospective earnings of the decedent. Comment, Damages in Wrongful Death and Survival Actions, 29 Ohio St.L.J. 420, 427 (1968).

Appellants' next assignments of error concern the court's refusal to give proposed instruction No. 8 which stated if recovery is allowed 'it shall be the net amount of value of her property at that time of her death.' The court also refused proposed instruction No. 9 which stated that, in arriving at an amount to which the estate may be entitled, the jury should 'deduct from the gross earnings reasonable income taxes, cost of living expenses, amount of gifts, expenses of entertainment, and expenses for medical attention expended during her normal life.' Instructions Nos. 8 and 9 must be read together inasmuch as in struction No. 8 does not indicate to the jury what items, if any, should be considered in arriving at the net amount, while instruction No. 9 furnishes those specific items appellants contend they are to consider.

Three theories have been developed for measuring the lost earning capacity of a decedent. See 29 Ohio St.L.J. 428 (1968). (1) The probable worth of the decedent's future net earnings had he lived to his normal life expectancy. Personal expenses are deducted from gross earnings to reach the net. Bryant v. Woodlief, 252 N.C. 488, 114 S.E.2d 241 (1960); Gonyer v. Russell, 160 F.Supp. 537 (D.C.R.I.1958) aff'd, 264 F.2d 761 (1 Cir. 1959). (2) The present worth of decedent's probable future savings had he lived to a normal life expectancy. Probable personal and family expenditures are both subtracted from probable gross earnings. Lampe v. Lagomarcino-Grupe Co., 251 Iowa 204, 100 N.W.2d 1 (1959); Florida E. Coast Ry. Co. v. Hayes, 67 Fla. 101, 64 So. 504 (1914). (3) The present worth of decedent's future gross earnings. No expenses are...