Malstrom v. Kalland

• Decision Date: 15 August 1963
• Docket Number: No. 36412,36412
• Court: Washington Supreme Court
• Parties: Donald MALSTROM and Darlene M. Malstrom, husband and wife, Respondents, v. Esther KALLAND, a single woman, Appellant.

Page 732

62 Wn.2d 732

384 P.2d 613

Donald MALSTROM and Darlene M. Malstrom, husband and wife, Respondents, v. Esther KALLAND, a single woman, Appellant.

No. 36412.

Supreme Court of Washington, Department 2.

Aug. 15, 1963.

Harold L. Hawkins, Hodge & Mann, Tacoma, for appellant.

Stubbs & Batali, Tacoma, for respondents.

WEAVER, Judge.

Defendant presents two issues on this appeal--the claimed excessiveness of: (a) $3,600 special damages; ¹ and (b) $50,000 general damages.

The issue of liability is not before us. We need not, therefore, expand upon the occasion giving rise to plaintiff's cause of action, except to identify that it springs from an automobile accident.

Depending upon which theory is accepted, plaintiff, twenty-two years of age, with a life expectancy of 48.55 years, suffered 'an injury to her right foot' or a 'crushed scaphoid' resulting in a 'deformed condition of plaintiff's foot at time of trial.'

The trial court found, and we conclude the record supports the finding

'* * * that [plaintiff's] * * * right foot was traumatically shortened one-quarter inch as a result of the injury received in said collision and the subsequent surgery and substantially widened as compared to the left foot; that plaintiff * * * will, in the future, not be able to wear the same size shoe on the right foot as on the left and will be required each time she purchases shoes for the balance of her lifetime to purchase two pairs of shoes rather than one, * * * that plaintiff suffered an additional special damage for future purchases of two pairs of shoes instead of one for the balance of her life expectancy of 48.55 years of $3,600; * * *.'

I Present Value of Future Damages

Defendant argues that the court erred when it did not reduce the monetary award for shoes to be purchased in the future to present value. This contention is based upon our decisions in Kellerher v. Porter, 29 Wash.2d 650, 189 P.2d 223 (1948) (tried to a jury) and Wentz v. T. E. Connolly, Inc., 45 Wash.2d 127, 273 P.2d 485 (1954) (tried to the court), wherein it was held that damages for loss of future earnings must be reduced to their present value. Counsel have cited no authority sustaining their position that the same principle applies to other items of damage occurring in the future. We assume, that after diligent search, they have found none. See DeHeer v. The Seattle Post-Intelligencer, 60 Wash.2d 122, 372 P.2d 193 (1962).

We do not reach this question, however, for we find nothing in the record before us to indicate that counsel requested the trial court to reduce the special damages for shoe allowance to present value. The question cannot be raised for the first time on appeal. Davis v. Sill, 55 Wash.2d 477, 481, 348 P.2d 215 (1960).

II Excessiveness of General Damages

Although plaintiff took three days to present her claim for damages to the court (the statement of facts contains 378 pages and refers to 36 exhibits), defendant (appellant) rested at the end of plaintiff's case and produced no evidence, lay or medical.

Defendant starts with the premise that the evidence before the court is undisputed. From this, she argues that

'* * * The usual rule that the trial court's findings will not be disturbed on appeal unless the evidence clearly preponderates against them * * * does not apply, and this court has the duty of determining the proper conclusions to be drawn from the evidence. * * *' (Italics ours.)

In support of her argument, defendant urges the following rule:

'* * * where a cause is tried to the court without a jury, the trial court's findings of fact will not be disturbed on appeal unless the evidence clearly preponderates against them. [Citing authorities.]

'This latter rule is based upon the theory that there is a conflict in the testimony and that the trial court, having the witnesses before it, is in better position to arrive at the truth than is the appellate court. For this reason, the rule has no application in a case where there is no substantial dispute as to the facts and no question as to the credibility of witnesses or the weight to be given to their testimony, but where the sole question on appeal concerns the proper conclusions to be drawn from practically undisputed evidence; in such situation, this court has the duty of determining for itself the right and proper conclusions to be drawn from the evidence in the case. Westland v. Post Land Co., 115 Wash. 329, 197 P. 44; Doke v. United Pacific Ins. Co., 15 Wash.2d 536, 131 P.2d 436, 35 P.2d 71.'

Shultes v. Halpin, 33 Wash.2d 294, 305-306, 205 P.2d 1201, 1207 (1949).

Similar statements are found in later decisions. ²

If this be an invitation for us to search the record for error, or to try the case de novo, we cannot accept it. In re Bellevue, 59 Wash.2d 793, 370 P.2d 861 (1962); Malnati v. Ramstead, 50 Wash.2d 105, 309 P.2d 754 (1957) and authorities cited.

We note that Shultes v. Halpin, supra, and those cases containing similar statements (see Fn. 2), were decided prior to Thorndike v. Hesperian Orchards, 54 Wash.2d 570, 343 P.2d 183 (1959), which held that '* * * the constitution does not authorize this court to substitute its findings for that of the trial court. * * *'

We do not conceive that the presence or absence of conflicting testimony minimizes or enlarges the scope of appellate review. If there is competent evidence in the record (whether it be conflicting or undisputed), to support the findings of fact of the trial court, we cannot disturb them (see Thorndike v. Hesperian Orchards, supra) except as provided by RCW 4.44.060, which provides:

'* * * The finding of the court upon the facts shall be deemed a verdict, and may be set aside in the same manner and for the same reason as far as applicable, and a new trial granted.'

Rule of Pleading, Practice and Procedure 59.04W provides:

'The former verdict or other decision may be vacated and a new trial granted * * * for * * *

* * *

* * *

'5. Damages so excessive or inadequate as unmistakably to indicate that the verdict must have been the result of passion or prejudice; * * *'

'Passion and prejudice' are not an issue in the instant case. This court has, however, reduced jury verdicts for damages (or in the alternative granted a new trial) on at least nine occasions ³ when passion and prejudice were either not discussed by the court or were found not to exist. These cases involve damages for wrongful death.

Fixing the amount of damages is actually a conclusional finding based upon preliminary findings that certain damages were sustained. No reasons are given in a jury verdict fixing the amount of damages unless special interrogatories are propounded. The trial court, on the other hand, usually expresses its reasons, either in an oral or a written memorandum opinion. For an interpretation of the facts found and the amount of damages awarded, we may consider the opinion of the trial court to test whether it has acted upon a wrong principle of law, has misapprehended the facts, or has made a wholly erroneous estimate of the damages suffered; otherwise, the alleged excessiveness of an award of damages by a jury (absent passion and prejudice) and by a trial judge should be tested by the same rules. When the injury is to property the test is whether the damages awarded are within the range of the testimony presented. Steele v. Queen City Broadcasting Co., 54 Wash.2d 402, 409, 341 P.2d 499 (1959); Becwar v. Bear, 41 Wash.2d 37, 41, 246 P.2d 1110 (1952). When the injury is to a person, causing pain, suffering, and permanent disability, this guideline is most indefinite.

It is difficult to describe plaintiff's injury without over-emphasizing (as does plaintiff), or minimizing (as does defendant), the results flowing from it.

The following, appearing in the findings of fact and supported by the evidence, describes her injury objectively (a) '* * * plaintiff * * * suffered * * * [an] injury to her right foot consisting of a dislocation of the bones of the right foot, fractures of several bones of the right foot, including a crushing of one of the bones of the right foot into small pieces; that as a * * * result of said injury * * * plaintiff * * * required * * * surgery involving an attempted fusion of the bones of the right foot; * * *'

(b) Plaintiff's right foot was permanently shortened and substantially widened. For elaboration see the finding of fact quoted infra in our discussion of special damages for shoes.

(c) The trial court found that plaintiff '* * * suffered a permanently deformed and disfigured right foot * * *'

Reference to the photographic exhibits discloses that the adjectives we have italicized paint a more gruesome picture than appears.

(d) It is undisputed that plaintiff suffered pain from the time of her injury to date of trial; that pain will remain until there is a fusion of the bones of the right foot; that plaintiff was bedridden for five weeks and required to wear a cast, and use a wheelchair or crutches for a considerable period of time.

(e) '* * * that as the result of said injury and the subsequent fusion and surgery and crushing of bones in the right foot, plaintiff has permanently lost all sideways motion of the right foot; has a substantial limitation of plantar flexion of the right foot as compared to the left caused by this injury and some limitation of dorsiflexion of the right foot as compared to the left; that plaintiff will have some permanent enlargement of the right foot.'

The findings of fact then state a number of probabilities: (1) Future surgery...