Lockhart v. Besel

• Citation: 71 Wn.2d 112,426 P.2d 605
• Decision Date: 20 April 1967
• Docket Number: No. 38272,38272
• Court: United States State Supreme Court of Washington
• Parties: Donald C. LOCKHART, Appellant, v. Conrad BESEL and Mrs. Conrad Besel, husband and wife, and Roland L. Besel, Respondents.

Page 112

71 Wn.2d 112

426 P.2d 605

Donald C. LOCKHART, Appellant, v. Conrad BESEL and Mrs. Conrad Besel, husband and wife, and Roland L. Besel, Respondents.

No. 38272.

Supreme Court of Washington, En Banc.

April 20, 1967.

Neill, Aitken & Schauble, Albert J. Schauble, Pullman, for appellant.

Richard R. Loucks, Pullman, for respondents.

Sam L. Levinson, of Levinson & Friedman, James McCutcheon, of McCutcheon & Groshong, John J. Sullivan, of Sullivan, Redman, & Winsor, Leon L. Wolfstone, of Wolfstone & Panchot, Seattle, amici curiae.

HUNTER, Judge.

This is an action for the wrongful death of a 17-year-old boy instituted by his father, Donald C. Lockhart, plaintiff (appellant), against the defendants (respondents), Conrad Besel and his wife, and their son, Roland L. Besel.

The deceased, Richard E. Lockhart, was a student in his senior year in St. John High School. He resided with his parents on a small farm near Ewan, Washington, where they were engaged in raising hogs. About 3 weeks prior to Richard's death his parents had purchased for him an Indian motorcycle for the purpose of going to and from school. On November 3, 1963, about 4:45 p.m., Richard was returning home after repairing an oil leak on his motorcycle at his uncle's place in St. John. About three and one-half miles east of St. John, on Highway No. 18, he met a car approaching from the opposite direction driven by his aunt, Teressa Black. Roland L. Besel was following the Black car in the family car of his parents, when he attempted to pass the Black car on a curve, whereupon he met Richard on his motorcycle in Richard's lane of travel. A collision occurred and Richard died from the resulting injuries.

The plaintiff alleged that the defendants' car was operated in a negligent manner, which was the proximate cause of his son's death. The defendants denied their negligence and affirmatively alleged contributory negligence of the plaintiff.

The evidence shows that the deceased was an outstanding boy in the community; he was a good student, a hard worker, an athlete, and a leader in his class. He weighed about 170 to 180 pounds. He was interested in pharmacy and intended entering college, but planned to stay home for a year or two after graduation from high school to help his father in the operation of his hog ranch, and to complete the family home. He had learned to operate a self-propelled combine and was capable of making $30 a day for some 60 days during harvest. In addition to helping his father in his hog business, he assisted him in his janitorial work at the school in Ewan.

After Richard's death, his father had to give up his $3,000-a-year job at the Ewan school, and he developed reverses in his hog business which he also discontinued.

At the conclusion of a jury trial, the jury returned a verdict in favor of the plaintiff for $6,363.07, of which $1,863.07 was for medical and funeral expenses and property damage as stipulated to in the record. The plaintiff moved for a judgment notwithstanding the verdict, increasing the amount of the verdict, or in the alternative for a new trial, which was denied. The plaintiff appeals.

The plaintiff contends the trial court erred in omitting from its instruction No. 14 on damages the following:

You may also consider the loss of companionship to the parents occasioned by the death of said child.

The plaintiff acknowledges that the proposed instruction departs from the present Washington rule in this regard, but argues that such an instruction is necessary in order to compensate a parent for the real loss of his child. The present rule was set forth by the trial court's instruction No. 14:

If you decide from the evidence that the plaintiff is entitled to damages for the loss of his minor child, you should give consideration to the following as the measure of damages to be awarded. You should determine the value of the services of said child from the date of the death until he would have attained the age of majority, less the cost to his parents of his support and maintenance during this interval. In determining the value of the deceased child's services, you must take into consideration the child's health, his mental and physical capacity, both present and prospective, as well as the situation of his parents. In determining the value of the deceased child's services, you should not consider any distress, sorrow or mental suffering of the parents caused by the death of said child.

The plaintiff argues that the present rule is unjust and archaic, that it fails to recognize that economic benefit from children is no longer a matter of parental concern, and that the modern parental attitude is one of sacrifice for the success of children. The plaintiff urges that we should therefore extend the rule, permitting the jury to consider the loss of companionship in evaluating the damages for the wrongful death of a minor child.

The limitation of damages to a parent for pecuniary loss of a child's services is predicated upon a rule announced by this court 74 years ago in the case of Hedrick v. Ilwaco R. & Nav. Co., 4 Wash. 400, 30 P. 714 (1892). We there said It is settled beyond controversy that, at common law, no civil action could be maintained for damages resulting from the death of a human being. But that defect of the common law has been obviated by statute in the several states, analogous to the English statute commonly known as 'Lord Campbell's Act' (9 and 10 Vict. c. 93,) though often varying more or less from its provisions, especially as to the party entitled to maintain the action. The object and purpose of these statutes is to provide a remedy whereby the family or relatives of the deceased, who might naturally have expected maintenance or assistance from the deceased had he lived, may recover compensation from the wrongdoer commensurate with the loss sustained.

A parent, at common law, could maintain an action for damages for loss of services of his minor child from the time of the injury until death, where death did not immediately follow the injury; and the object of the statute is to create a new and independent right of action for the loss of services subsequent to the decease of the child, which did not exist at common law. * * * The measure of damages in such cases is the value of the child's services from the time of the injury until he would have attained the age of majority, taken in connection with his prospects in life, less the cost of his support and maintenance. To this may be added in proper cases the expense of nursing and medical treatment, and in some jurisdictions even funeral expenses.

From the inception of the rule, supra, the argument has been advanced that in the absence of the proof of special pecuniary damages, it is speculative to say that the earnings of a minor child exceed the cost of his support and maintenance during his minority; that a judgment or verdict for more than nominal damages should not be sustained. We have answered this argument, however, by following the majority rule in other jurisdictions which is that such statutes contemplate a recovery to the parents for more than nominal damages in the case of wrongful death of their minor child. This construction placed upon our statute, RCW 4.24.010, is clearly enunciated in Sweeten v. Pacific Power & Lt. Co., 88 Wash. 679, 683, 153 P. 1054 (1915) In the nature of the case, direct evidence of specific pecuniary loss would be impracticable, not to...