McMullen v. Warren Motor Co.

• Decision Date: 12 September 1933
• Docket Number: 24428-24430.
• Citation: 25 P.2d 99,174 Wash. 454
• Court: Washington Supreme Court
• Parties: McMULLEN v. WARREN MOTOR CO. (three cases.

25 P.2d 99

174 Wash. 454

McMULLEN v. WARREN MOTOR CO. (three cases.

Nos. 24428-24430.

Supreme Court of Washington

September 12, 1933

Department 2.

Appeal from Superior Court, Chelan County; W. O. Parr, Judge.

Separate actions by J. E. McMullen against the Warren Motor Company and by Jennie McMullen, as administratrix of the estate of Emma Michael, deceased, and as administratrix of the estate of Warren E. Michael, deceased, against the Warren Motor Company. From a judgment for plaintiff in each case defendant appeals.

Affirmed.

LeRoy McCann and J. D. Oxman, both of Wenatchee, for appellant.

A. N Corbin, of Wenatchee, for respondent.

MAIN Justice.

Three separate actions were begun in the superior court, and were consolidated for trial. In the first one, J. E. McMullen, as plaintiff, sought to recover damages for personal injuries and also property damage. In the second, Jennie McMullen, as administratrix of the estate of Emma Michael, deceased, sought to recover funeral expenses. In the third, Jennis McMullen, as administratrix of the estate of Warren E. Michael, deceased, also sought to recover funeral expenses. In the first action, the defendants were the Warren Motor Company and Dewey S. Rochester, but the latter was dismissed from the case prior to the trial, 'without prejudice' to the bringing of another action against him. In the other two actions, the Warren Motor Company was the defendant. The trial was to the court and a jury, and resulted in a verdict in the first action in favor of the plaintiff in the sum of $3,847. In the second action, the verdict was for $483.73, and in the third for $617. In each action, a motion was made for judgment notwithstanding the verdict, and, in the alternative, for a new trial; all of which motions were overruled. A judgment was entered in each case upon the verdict therein, and from the judgments the Warren Motor Company appeals.

The facts are these: The Warren Motor Company, the appellant, was a corporation with its principal place of business in Wenatchee. One Dewey S. Rochester operated a repair shop and service station at Manson, about forty miles from Wenatchee. The appellant was the distributor of Chrysler automobiles in Chelan and adjoining counties, and operated under a contract with the Chrysler Sales Corporation. Rochester sold Chrysler automobiles under a contract with the appellant, which was approved by the Chrysler Sales Corporation. Rochester did not keep any automobile for sale at his place of business, and did not have what is called a demonstrator.

April 25, 1931, Rochester, with a prospective purchaser for an automobile, went to the appellant's place of business in Wenatchee, and the prospective purchaser was introduced to the president and manager thereof. Soon thereafter Rochester and the prospective purchaser, with the consent of the president of the appellant, took an eight-cyclinder demonstrator Chrysler automobile for the purpose of showing the prospective purchaser how it would operate upon the highways. About five or six miles north of Wenatchee, the Chrysler, driven by Rochester at high speed, struck a Buick automobile, driven by J. E. McMullen, injuring McMullen, and killing Mr. and Mrs. Michael, who were riding with him. The appellant, in its brief, admits the negligence of Rochester, and for this reason the facts as to the happening of the accident need not be detailed. Subsequently, the three actions were brought, as above indicated.

It is first contended that no recovery could be had for funeral expenses of either one of the deceased persons, because there was no showing of dependency. Rem. Rev. Stat. § 183, provides that, when the death of a person is caused by the wrongful act, neglect, or default of another, his personal representative may maintain an action for damages against the person causing the death. Rem. Rev. Stat. § 183-1, provides that every such action shall be for the benefit of the wife, husband, child, or children of the person whose death has been caused, and, if there be no wife, husband, child, or children, such action may be maintained for the benefit of the parents, sisters, or minor brothers who may be dependent upon the deceased person for support. In this case, as indicated, neither of the deceased persons left a husband, wife, child, or dependent.

In the departmental opinion in Castner v. Tacoma Gas & Fuel Co., 123 Wash. 236, 212 P. 283, it was held that, under the statutes mentioned, the cost of funeral expenses was not recoverable in an administrator's action for wrongful death for the benefit of certain relatives or dependents. After the opinion in that case was filed, a petition for rehearing was granted, and the case was heard en banc. 126 Wash. 657, 219 P. 12. Upon the latter hearing, it was held that funeral expenses are recoverable against one causing the death of another by wrongful act, overruling in this respect the departmental opinion. Upon the rehearing, it was said: 'A majority of the court, however, are of the opinion that the Department was in error in its conclusion that funderal expenses were not recoverable against one causing the death of another by wrongful act, and to that extent the judgment directed in the Department opinion must be modified.'

There is a distinct holding by the majority of the court that funeral expenses are recoverable, and we are not disposed to depart therefrom.

It is next contended that the trial court erred in refusing to allow the cross-examination of a witness. The respondents called Rochester as a witness, and, at the time of doing so, counsel for them stated: 'I am calling Mr. Rochester as an antagonistic witness.'

To this the appellant objected, and the objection was overruled. The witness thereupon testified, as appears in the abstract of appellant: 'My name is Dewey Rochester. I live at Manson and have a repair shop up there. They call me 'Duke' and my garage is known as 'Duke's Service."

On cross-examination, the appellant sought to inquire into whether Rochester was, in fact, an antagonistic witness to respondents, and to this line of questioning an objection was made and sustained. We shall assume, without so deciding that Rochester was not an antagonistic witness, that the objection to the statement that he was should have been sustained, and that the court erred in refusing inquiry, on cross-examination, as to whether he was. But the error was not prejudicial, because the witness, on his direct examination, had testified to...