Lofgren v. Western Washington Corp. of Seventh Day Adventists

• Decision Date: 29 October 1964
• Docket Number: No. 37048,37048
• Citation: 396 P.2d 139,65 Wn.2d 144
• Court: Washington Supreme Court
• Parties: John LOFGREN and Audrey Lofgren, his wife, and Teryl Lee Lofgren, by and through her Guardian ad Litem, John Lofgren, Appellants, v. WESTERN WASHINGTON CORPORATION OF SEVENTH DAY ADVENTISTS, a Washington corporation, Washington Conference of Seventh Day Adventists, an unincorporated association, Seventh Day Adventist School at Kirkland, Washington, an unincorporated association, Seventh Day Adventist Church at Kirkland, Washington, an unincorporated association, Mark Olcott, H. J. Thomsen and Hester B. Thomsen, his wife, and their marital community, Respondents.

Page 144

65 Wn.2d 144

396 P.2d 139

John LOFGREN and Audrey Lofgren, his wife, and Teryl Lee Lofgren, by and through her Guardian ad Litem John Lofgren, Appellants, v. WESTERN WASHINGTON CORPORATION OF SEVENTH DAY ADVENTISTS, a Washington corporation, Washington Conference of Seventh Day Adventists, an unincorporated association, Seventh Day Adventist School at Kirkland, Washington, an unincorporated association, Seventh Day Adventist Church at Kirkland Washington, an unincorporated association, Mark Olcott, H J. Thomsen and Hester B. Thomsen, his wife, and their marital community, Respondents.

No. 37048.

Supreme Court of Washington, Department 2.

Oct. 29, 1964.

John J. Kennett, Seattle, for appellants.

Skeel, McKelvy, Henke, Evenson & Uhlmann, Frederick V. Betts, Seattle, for respondents.

WEAVER, Judge.

This suit is based upon two causes of action. The first is by Teryl Lee Lofgren, by her guardian ad litem, for damages for personal injuries suffered as a result of defendants' alleged negligence; the second is by Teryl's parents to recover (a) medical expenses incurred and to be incurred by them for Teryl's benefit; (b) $160 for wages lost by Teryl's father while transporting her for medical treatment; and (c) $5,000 damages for deprivation of Teryl's services during her convalescence and her minority.

Teryl Lofgren, twelve years of age at the time of her injury, was a pupil at the Kirkland Seventh Day Adventist School owned and operated by defendants. She was injured during a school recess while she and another pupil were playing on a manually operated merry-go-round located on the school premises. Teryl's foot became entangled in a rope. The circular momentum of the merry-go-round wound the rope around the perpendicular axle upon which the merry-go-round rotated, and bound her leg against the center post. She suffered a compound fracture of the leg.

Plaintiffs appeal from a judgment entered after the jury returned a verdict in their favor for $5,000 for injuries sustained and $4,573.45 for medical expenses and loss of earnings.

Before discussing plaintiffs' assignments of error, it is necessary to consider certain procedural aspects of this case.

Plaintiffs moved for a new trial 'limited solely to the amount of damages.'

February 5, 1963, the court denied the motion for a new trial limited to damages only and entered judgment on the verdict.

April 19, 1963, plaintiffs served and filed a concise statement of the points on which they intended to rely on the appeal (Rule on Appeal 34(3)) and also filed a proposed statement of facts purportedly containing all of the evidence relating to the points set forth in the concise statement of points.

July 9, 1963, the trial judge refused to certify the proposed statement of facts. July 17, 1963, an alternative writ of mandamus was issued by this court directing the trial judge to certify the proposed statement of facts or to show cause why it should not be certified. After argument before a department of this court on September 13, 1963, an order was entered quashing the alternative writ of mandamus.

Plaintiffs then furnished the balance of the statement of facts and it was finally certified by the trial judge on November 12, 1963.

In the meantime, however, plaintiffs' counsel had prepared his printed appellate brief based upon the concise statement of points and filed it in this court on August 26, 1963. The assignments of error contained therein are the only assignments before this court.

Plaintiffs assign error to the court's refusal to give their requested instruction on Teryl's life expectancy. ¹

This court has, on numerous occasions, considered the propriety of giving, or refusing to give, this instruction. ² The rule is well stated in DeKoning v. Williams, 47 Wash.2d 139, 286 P.2d 694 (1955), wherein the court stated that it is proper to give the instruction where there is evidence of either (a) permanent injury, (b) future loss of earnings, or (c) future pain and suffering. Each of the elements is based upon a projection of the future effect of the injury.

From the medical testimony in the instant case, the jury could conclude that Teryl was permanently injured and would have future pain and suffering; hence, it would have been Proper to have given the instruction.

DeKoning, supra, is the only case coming to our attention which holds that refusal to give the instruction was error. In that case the verdict was reversed, but there were other cogent reasons for the reversal. In view of Fisher v. City of Anacortes, 109 Wash. 191, 186 P. 271 (1919), in which the court said:

'* * * But if the rule be otherwise, the admission of the table (life expectancy) was harmless. In itself it had no probative value; that is, it conveys no information that is not the common knowledge of mankind. As evidence it stands on the plane of a calendar, and almanac, or a report of the weather bureau; it is but a convenient remainder of facts which the human mind cannot always bring to remembrance.'

we doubt, if standing alone, refusal to give the instruction would necessarily be prejudicial error. See also Shephard v. Smith, 198 Wash. 395, 401, 88 P.2d 601 (1939).

Although the instruction should have been given, its refusal was not prejudicial to plaintiffs. We note that plaintiffs' counsel in his closing argument stated:

'It seems to me, ladies and gentlemen, that this girl would have what, the is sixteen (later recognized as a misstatement; she was then fourteen) a life expectancy of what, fifty-sixty years? That means she is going to have some disability as long as she lives. You have to take that into consideration.'

Next, plaintiffs urge that the court erred when it refused to instruct the jury that Teryl's parents were entitled to recover for 'loss of services incurred in connection with their daughter's injury.'

It is error to submit to the jury an instruction when there is not substantial evidence upon which to base the instruction. Hughey v. Winthrop Motor Co., 61 Wash.2d 227, 377 P.2d 640 (1963), and cases cited.

The trial court, in its memorandum opinion denying a new trial, said:

'In my opinion loss of services of a minor child would perhaps require no proof in a death case. However, in this case the period of the child's disability was fixed and had terminated, yet there was no proof submitted as to the value of any services on the part of the child which the parents were deprived of by reason of her injury. It is for this reason that the jury was not instructed on this point.'

It is not disputed that Teryl's parents have the Right to maintain an action for the value of the loss of her services to them (as distinguished from loss of Teryl's earnings, if any) during her incapacity as a result of her injury. RCW 4.24.010.

From this, plaintiffs argue that they are entitled to an instruction on loss of services without proof thereof and cite Hedrick v. Ilwaco R. & N. Co., 4 Wash. 400, 30 P. 714 (1892), Harris v. Puget Sound Elec. Ry., 52 Wash. 299, 100 P. 841 (1909), Otey v. Bradley, 63 Wash. 500, 115 P. 1045 (1911), and Sherman v. City of Seattle, 57 Wash.2d 233, 356 P.2d 316 (1960), in support of their conclusion. We do not agree. The cases are not apposite. Hedrick and Otey, supra, present a question of pleading a parent's Right to maintain an action for the value of the loss of a minor's services. These cases do not go to the question of the quantum of proof necessary. In Harris, supra, which involved the loss of a minor's earning capacity, the amount of the recovery was stipulated. Sherman, supra, involved a minor's loss of earning capacity resulting from an amputated arm, not the loss of the minor's services to his parents.

Even though judgment may be obtained without proof of special pecuniary damages for the wrongful death of a child (Skeels v. Davidson, 18 Wash.2d 358, 139 P.2d 301, 149 A.L.R. 225 (1943)), it does not follow that a parent can recover for loss of an injured minor's services without proof that some services would have been performed. If there be evidence of the loss of services during temporary incapacity, or of future loss of services if the disability were permanent, an instruction would be proper; the valuation would then be left to the judgment of the jurors, guided by the facts and circumstances in the case. Plaintiffs' proof does not meet this test; hence, it was not error to refuse to give an instruction for loss of services.

After a five-day trial to determine defendants' liability and the amount of plaintiffs' damages, if any, this case was given to the jury about 5:30 p.m. on a Friday afternoon.

The court gave eleven instructions to the jury. In view of the length of the trial and the nature of the testimony, the instructions were brief. This, of course, is not a defect but is commendable if the instructions encompass all of the issues and present the theory of both parties for the jury's consideration.

The jury's sole guideline to determine damages, if any, in the instant case is found in instruction No. 8, which, in part, reads as follows:

'If you decide for the plaintiffs on the question of liability, you must then fix the amount of money which will reasonably and fairly compensate them for any of the following elements of damage proved by the evidence to have resulted from the negligence of the defendants:

1. 'The nature, extent and duration of the injury;

2. 'The permanent disability and disfigurement resulting from the injury;

3. 'The pain and suffering endured and to be endured in the future as a result of the injuries;

4. 'The medical and hospital expenses which were reasonably and necessarily incurred, and any such expenses reasonably certain to be required in the future;

5. 'The value of lost earnings.' (Numbering furnished by the court.)

Plaintiffs assign error to this instruction on two grounds: (1) it confuses the claims of the parents with the claims of their daughter; and (2) it does...