Kramer v. Portland-Seattle Auto Freight, Inc.

• Decision Date: 01 October 1953
• Docket Number: PORTLAND-SEATTLE,No. 32434,32434
• Citation: 261 P.2d 692,43 Wn.2d 386
• Parties: KRAMER, v.AUTO FREIGHT, Inc. et al.
• Court: Washington Supreme Court

Page 386

43 Wn.2d 386

261 P.2d 692

KRAMER, v. PORTLAND-SEATTLE AUTO FREIGHT, Inc. et al.

No. 32434.

Supreme Court of Washington, Department 1.

Oct. 1, 1953.

Dale W. Read, Vancouver, Vergeer and Samuels, Portland, Or., for appellants.

Simpson & Simpson, Vancouver, for respondent.

WEAVER, Justice.

This is an action for damages for wrongful death. Defendants appeal from a judgment against them, based upon a jury verdict, in the sum of $667.25 special damages and $50,000 general damages, for the death of Helen C. Kramer.

The issue of liability is not presented on this appeal. We need not, therefore, expand upon the occasion giving rise to plaintiff's cause of action.

Helen C. Kramer died as a result of a collision between an automobile, driven by her husband, Legion, and a truck and semitrailer. The truck and trailer were owned by defendant Portland-Seattle Auto Freight, Inc., and driven by its employee, defendant Wochnick. Three of the Kramer children (Legion, Jr., age six; Calvin, age four; and Nancy Sue, age seven months) also died as a result of the collision. Legion Kramer and their minor son, Donald, age two years and five months, were injured but survived the collision.

Three separate actions were commenced. Since they were consolidated and tried together, it is necessary that they be described.

In the first action (cause No. 28186), Legion C. Kramer, individually, recovered special damages for the loss of his automobile, hospital and medical expense, loss of wages, funeral and burial expense of the three children, and $8,000 general damages for his injuries. However, the jury denied general damages for the wrongful death of his children. There is no appeal from this judgment.

The second action (cause No. 28187), for damages for the wrongful death of Helen C. Kramer, was brought in the name of Legion C. Kramer, as administrator of his wife's estate on behalf of himself and his minor son, Donald. It is from the judgment entered upon the verdict in this case that defendants appeal.

The third action (cause No. 28188) was brought by Legion C. Kramer as guardian of his minor son, Donald, for injuries suffered by Donald. It appears in briefs of counsel that the jury returned a verdict for the plaintiffs in each of the three cases. The record, however, does not disclose the amount of this verdict. There is no appeal from this judgment.

Appellants' first three assignments of error are directed to the admission in evidence of eight photographs. In their fourth and fifth assignments, appellants contend that the trial court erred (a) in denying their motion for a new trial, and (b) in entering judgment for $50,667.25. The fourth and fifth assignments are supported bt the argument that the verdict is excessive.

Exhibit 6, 8, 9, and 10 are accurate photographic representations of the truck and the automobile taken immediately following the accident. The speed of the truck and the damage to the car (alleged to have been a total loss) were placed in issue by the pleadings. These pictures were pertinent to the issues. They depict the force of the impact. They show the damage to the car. In Cady v. Department of Labor and Industries, 1945, 23 Wash.2d 851, 863, 162 P.2d 813, 819, this court said:

'This court has heretofore said that the practice of admitting photographs is to be encouraged as an aid to the comprehension of physical facts, because such evidence usually clarifies some issue and gives the jury, and the court, a clearer comprehension of the physical facts than can be obtained from the testimony of witnesses.'

This purpose was accomplished by these photographs. The trial court did not err in admitting them in evidence.

Admission of a picture of the front portion of appellants' truck is assigned as error because it was taken the day following the accident, after the truck had been moved. Witnesses testified that no material damage had been done to the truck by righting and moving it. This court said, in State v. Cyr, 1952, 40 Wash.2d 840, 847, 246 P.2d 480, 485,

'Whether a photograph is sufficiently identified as a proper representation is a preliminary question to be determined by the trial court, and the determination of that question lies largely within its discretion. Its ruling thereon will not be disturbed except for abuse of discretion. [Citing cases.]'

We have examined the testimony and the photograph. We find no abuse of discretion.

Appellants assign error to the admission in evidence of three snapshots of Helen C. Kramer and her four children. In the action brought by Legion C. Kramer in his individual capacity (cause No. 28186) for damages by reason of the death of the three children, their age, physical condition, and mental development were material facts to be proved. The jury was instructed that 'the child's health, his mental and physical capacity, both present and prospective' were matters for their consideration in determining damages, if any. The pictures were relevant and competent. They tended to prove a material issue in one of the cases consolidated for trial. City Ice Delivery Company v. Turley, 1931, 44 Ga.App. 32, 160 S.E. 517.

Appellants

'* * * concede that probably the ruling as to any one photograph, considered solely by itself, was possibly not sufficiently serious an error to constitute reversible error.'

Appellants urge, however, that the admission of the three sets of photographs (to which appellants assigned error), together with certain incidents of the trial (to which appellants did not assign error),

'* * * all had the obvious effect of arousing extreme passion, sympathy and emotion in the minds of the jurors and resulted in a verdict in this case which was so grossly excessive as unmistakably to indicate that the verdict must have been the result of passion or prejudice.'

We have already held each photograph admissible in evidence. The sole question remaining, then, is whether this court will disturb the jury verdict of $50,000.

Plaintiff, as the administrator of the estate of Helen C. Kramer, commenced this action for the benefit of two survivors, himself as widower and their minor son, Donald, under the wrongful death statutes. Rem.Rev.Stat. § 183 [cf. RCW 4.20.010]; Rem.Rev.Stat. § 183-1 [cf. RCW 4.20.020].

The amount of damages to be assessed is a matter for determination by the jury under appropriate instructions. The general statute (Rem.Rev.Stat. § 366, RCW 4.44.450) provides that the jury shall assess the amount of the recovery. The wrongful death statute provides:

'In every such action the jury may give such damages as, under all circumstances of the case, may to them seem just.' Laws of 1917, chapter 123, § 2; Rem.Rev.Stat. § 183-1 [cf. RCW 4.20.020].

It is fundamental, in cases such as this, that the measure of damages is the pecuniary loss sustained by the statutory beneficiaries for whose benefit the action is prosecuted. Woodbury v. Hoquiam Water Company, 1926, 138 Wash. 254, 244 P. 565. It is at once apparent, however, that such pecuniary loss is difficult of precise proof, and is, in a measure, uncertain. This is especially true when the action involves the death of one who is not a wage earner and whose death deprives a beneficiary of intangibles difficult of translation into terms of money. Nevertheless, the damage and loss are real, and they are compensable under the statutes. In Ticknor v. Seattle-Renton Stage Line, 1926, 139 Wash. 354, 358, 247 P. 1, 2, 47 A.L.R. 252, involving an action for damages for wrongful death, this court said:

'In the present kind of a case, by its very nature, the amount of damages cannot be fixed with mathematical certainty. Primarily the jury must be given considerable latitude in fixing the amount.'

In Bigelow v. RKO Radio Pictures, Inc., 1945, 327 U.S. 251, 265, 66 S.Ct. 574, 580, 90 L.Ed. 652, the court said 'The most elementary conceptions of justice and public policy require that the wrongdoer shall bear the risk of the uncertainty which his own wrong has created. * * * 'The constant tendency of the courts is to find some way in which damages can be awarded where a wrong has been done. Difficulty of ascertainment is no longer confused with right of recovery' for a proven invasion of the plaintiff's rights.'

It is necessarily within the judgment of the jury to assess damages as 'to them seem just', under the evidence and 'circumstances of the case'; subject, of course, to certain judicial control.

It is but a conclusion to say that a jury's verdict is excessive. Before the conclusion can be reached, it must be supported by the record. Appellants reach this conclusion by urging that 'the verdict must have been the result of passion and prejudice.' We look, therefore, to the record.

This case is unusual in at least one respect: the record of the consolidated trials affirmatively shows that the jury was not influenced by passion and prejudice generated by the facts.

Other than a reference to the admission of the photographs, appellants assign error to nothing, except the amount of the verdict, from which a conclusion of passion and prejudice might be drawn. It is obvious, however, that the death of the three minor children is claimed as the basis of such a conclusion.

In cause No. 21816, brought by Mr. Kramer for damages for the wrongful death of the three children, the court instructed:

'You are instructed that should you decide from the evidence that Legion C. Kramer is entitled to recover damages for the death of his three minor children, you will give consideration to the following, as a measure of the damages to be awarded in the case of each child. You shall determine the value of the services of each child from the date of the injury which caused the death until such child would have attained the age of majority, less the cost of such child's support and maintenance to his father during this interval. In determining the value of the deceased child's services, you must take...