Mitchell v. Rice

• Decision Date: 03 September 1935
• Docket Number: 25479.
• Citation: 183 Wash. 402,48 P.2d 949
• Parties: MITCHELL v. RICE et al.
• Court: Washington Supreme Court

48 P.2d 949

183 Wash. 402

MITCHELL v. RICE et al.

No. 25479.

Supreme Court of Washington

September 3, 1935

Department 1.

Appeal from Superior Court, King County; Robert M. Jones, Judge.

Consolidated actions by R. H. Mitchell, as administrator of the estate of Hampton H. Mitchell, deceased, against R. G. Rice and others. Verdict for plaintiff on first cause of action, but for defendants on second. From that part of order denying defendants' motion for judgment notwithstanding the verdict and granting a new trial on the second cause of action, named defendant appeals. From that part of order granting a new trial on the first cause of action, plaintiff cross-appeals.

Affirmed.

Ballinger Hutson & Boldt, of Seattle, for appellant Rice.

John J Kennett and Ray M. Wardall, both of Seattle, for respondent Mitchell.

GERAGHTY Justice.

This action was brought by the plaintiff as administrator of the estate of his adult son, Hampton H. Mitchell, to recover for the death of the son resulting from a collision between a motorcycle driven by him and an automobile driven by defendant Rice.

The plaintiff, alleging dependency upon the son, used upon two causes of action; the first cause, based upon Rem. Rev. Stat § 194, was for the injuries, pain, suffering, and expense of the decedent prior to his death; the second, based upon Rem. Rev. Stat. §§ 183 and 183-1, was for the find for the plaintiff on the first cause of action in the sum of ($3500.00); on the second cause of action in the sum of ($ none).'

The defendant moved for judgment notwithstanding the verdict upon both causes of action, and, in the alternative, for a new trial upon the first cause. Plaintiff moved for a new trial upon the second cause. The court set the verdict aside and ordered a new trial upon both causes. The defendant appeals from that part of the order denying his motion for judgment notwithstanding the verdict and granting a new trial on the second cause of action; the plaintiff cross-appeals from that part of the order granting a new trial upon the first cause of action. While both parties appeal, the defendant will be referred to as appellant, and the plaintiff as respondent.

The appellant's chief contention is that the respondent did not make a case for submission to the jury upon the issue of dependency.

Rem. Rev. Stat. § 194, upon which the first cause of action was based, is as follows: 'No action for a personal injury to any person occasioning his death shall abate, nor shall such right of action determine, by reason of such death, if he have a wife or child living, or leaving no wife or issue, if he have dependent upon him for support and resident within the United States at the time of his death, parents, sisters or minor brothers; but such action may be prosecuted, or commenced and prosecuted, by the executor or administrator of the deceased, in favor of such wife, or in favor of the wife and children, or if no wife, in favor of such child or children, or if no wife or child or children, then in favor of his parents, sisters or minor brothers who may be dependent upon him for support, and resident in the United States at the time of his death.'

Rem. Rev. Stat. §§ 183 and 183-1, upon which the second cause of action was based, are as follows:

'§ 183. 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; and although the death shall have been caused under such circumstances as amount, in law, to a felony.'

'§ 183-1. Every such action shall be for the benefit of the wife, husband, child or children of the person whose death shall have been so caused. If there be no wife or husband or 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, and who are resident within the United States at the time of his death. In every such action the jury may give such damages as, under all circumstances of the case, may to them seem just.'

To sustain a recovery upon either cause of action, it was necessary for the respondent to establish that he was, at the time of his son's death, substantially dependent upon him for support, and also that this dependence was recognized by the son by contributions to his father's support, not merely by was of casual gifts from a son to a father, but in recognition of the father's dependency.

The father was 59 years of age at the time of the son's death. At that time he had a small store in Seattle, in which, as he testified, the daily sales varied from $5 up to $12. His markup was 15 per cent., so that on the highest daily sale his gross profits would not amount to more than $1.80, out of which the expenses, including $25 a month rent, would have to be paid. There could have been no substantial sum left from the earnings of the store for his own living. Shortly after the son's death, the store was sold for $1,050 cash, making an apparent profit of $550 over the price he had paid for it. He had conducted small stores for several years and appears to have bought and sold several.

In addition to the store, he had an equity in three houses in Seattle. These houses were subject to encumbrances and were rented only intermittently. One of them was vacant at the time of the son's death; one was rented for $16.50 and the other for $17.50. The rentals were required to carry the encumbrances and pay taxes upon the properties.

Respondent's wife had left him some six years Before , taking with her a daughter, their only other child. The son lived with the father for three years after the mother left. Thereafter until his death, he lived with an aunt, who kept a boarding house. She testified that she had him with her in order that he might have enough to eat and a place to sleep, and that she did not know what his earnings were. She said, 'His employment while he lived with me was hit and miss.' At the time of his death he was working as a messenger, and he had done other jobs. His employment apparently was intermittent. The respondent testified that for a year and a half preceding his death the son earned not less than $35 in any one month, and that his maximum earnings in any one month of that period were around probably $75...