Pancratz v. Turon, 120

• Decision Date: 03 August 1970
• Docket Number: No. 120,120
• Citation: 473 P.2d 409,3 Wn.App. 182
• Parties: Paul K. PANCRATZ, as Executor of the Estate of Mabel B. Pancratz, Deceased, Appellant, v. John TURON and Marion Ruth Turon, his wife; and the Estate of Pearl B. Fulkerson, Deceased, Respondents. (41281) II.
• Court: Washington Court of Appeals

Page 182

3 Wn.App. 182

473 P.2d 409

Paul K. PANCRATZ, as Executor of the Estate of Mabel B Pancratz, Deceased, Appellant, v. John TURON and Marion Ruth Turon, his wife; and the Estate of Pearl B. Fulkerson, Deceased, Respondents.

No. 120 (41281) II.

Court of Appeals of Washington, Division 2 Aug. 3, 1970.

Rutherford, Kargianis & Austin, Russell A. Austin, Jr., and Samuel C. Rutherford, Seattle, for appellant.

R. DeWitt Jones, Vancouver, for respondents.

PETRIE, Judge.

A tragic motor vehicle accident in the vicinity of Vancouver, Washington on June 2, 1965, took the lives of two sisters: Mrs. Pearl B. Fulkerson, driver of one of the vehicles; and Mrs. Mabel B. Pancratz, passenger in the Fulkerson vehicle. The executor of Mrs. Pancratz's estate, Paul K. Pancratz, filed this action against the estate of Mrs. Fulkerson and also against John and Marion Turon, ¹ husband and wife. Mrs. Turon was the operator of the other vehicle involved in the accident.

Plaintiff's primary basis for claimed actionable damages is contained in the following paragraph in his complaint:

That the plaintiff's decedent was the sole and only support of her incompetent daughter, Sara Lee Pancratz, who, as a result of the foregoing negligence of the defendant, has been deprived of her mother's affection, care and support, and who as a result of said accident has been necessarily institutionalized at great and continuing expense to the estate of the decedent.

The record reveals that Sara Lee Pancrantz, 25 years of age at the time of her mother's death, mentally incompetent since birth and categorized as a Mongoloid, had lived at home with her mother, Mabel Pancratz, until Mrs. Pancratz's untimely death, and is permanently unable to adequately take care of herself except under rather closely supervised situations. After her mother's death, Sara Lee lived briefly in the family household of her older brother, Paul Pancratz, who has now been appointed her guardian. Since February 25, 1966 she has been a patient at Grafton State School, a state institution at Grafton, North Dakota. At the time of her death, Mrs. Pancratz was 64 years of age and had a life expectancy of 13.51 years.

After trial on the merits, a jury returned a verdict for plaintiff and against the Fulkerson estate only, in the amount of $14,791.61. Plaintiff's appeal is from the judgment entered on the Amount of the jury's verdict and seeks a new trial against the defendant, estate of Fulkerson, only, limited to the single issue of damages.

Plaintiff's appeal raises two interrelated issues: (1) Whether or not the jury should have been advised of the fact and the amount of Social Security Administration and Veterans Administration benefits now being paid to the guardian of Sara Lee Pancratz and which benefits are now partially providing the cost of her care at Grafton State School; and (2) whether or not the jury should have been specifically instructed that the reasonable cost of her present custodial care may be considered by them as a guide toward establishing the value of her mother's contribution to Sara Lee during the mother's lifetime.

Plaintiff's right of action is granted by statute. ² The persons for whose benefit the action may be brought and the general standard for damages recoverable are also controlled by statute. ³ Under these statutes, the adult child need not prove dependency upon his or her parent; a showing of a 'pecuniary loss' is sufficient. Jensen v. Culbert, 134 Wash. 599, 236 P. 101 (1925). Despite the statutory language granting the jury broad authority to assess the amount of damages, certain inherent restrictions upon that authority do exist. It is necessarily within the judgment of the jury to assess damages as 'to them seem just,' under the evidence and 'circumstances of the case'; subject, of course, to certain judicial control.

Kramer v. Portland-Seattle Auto Freight, Inc., 43 Wash.2d 386, 392, 261 P.2d 692 (1953). See also Shead v. Riser, 136 Wash. 270, 239 P. 562 (1925).

Well within the ambit of 'judicial control' are the two issues presented by this appeal: Materiality and relevancy of evidence bearing on damages; and propriety of instructions to the jury. Fleming v. Seattle, 45 Wash.2d 477, 275 P.2d 904 (1954).

In anticipation of the evidentiary problem relating to the first issue, plaintiff filed a pre-trial Motion in Liminae ⁴ seeking to preclude any question being propounded to witnesses designed to elicit the source of payment for Sara Lee's care at Grafton. The trial court, in effect, denied the motion, indicating instead that the matter should be raised at an appropriate time during trial. Subsequently, over plaintiff's vigorous protest, the defense was permitted to elicit from Sara Lee's guardian, Paul Pancratz, that he is now receiving benefits for his ward from the Social Security Administration in the amount of $69 per month and from the Veterans Administration in the amount of $40 per month.

Defendant estate acknowledges that this state has sanctioned the 'collateral source rule' specifically applied to social security and veterans' benefits, Stone v. Seattle, 64 Wash.2d 166, 391 P.2d 179 (1964); but contends that such a rule should be applied so as to preclude mitigation of a plaintiff's losses only where the benefits spring into existence Because of the death caused by the tort-feasor. In the instant case, the defendant estate contends, the jury is entitled to know that these benefit sources had been payable to the mother during life for the benefit of Sara Lee--and that after the mother's death they continued to be paid to the new guardian but still for Sara Lee's benefit. They should, the argument continues, be available to demonstrate a limitation on the amount of Sara Lee's 'pecuniary loss.'

In order to better understand the positions of the contending parties, a few more facts are necessary. Sara Lee's father had been a disabled veteran of World War I. He died in 1940, several months after Sara Lee was born. From the date of his death, his widow, Mabel Pancratz, received a benefit from the Veterans Administration. Effective October 1, 1954, and continuing to the date of Mrs. Pancratz's death, the amount of that benefit, based in part upon the fact that Sara Lee was permanently incapable of self-support, was $63 per month. The record does not indicate any segregation as between the widow's portion of the benefit and the dependent child's portion of the benefit. Subsequent to Mrs. Pancratz's death, Sara Lee's guardian received, and continues to receive a Veterans Administration benefit in the amount of $40 per month.

Mrs. Pancratz became 62 years of age on July 5, 1962. At that time she became eligible for, received and continued to receive until her death, a social security benefit in the amount of $60.80 per month as old age assistance plus an additional amount of $38 per month for her dependent daughter. After Mrs. Pancratz's death, Sara Lee's guardian received a benefit from the Social Security Administration in the amount of $61.10 per month, which was subsequently increased to $69 per month.

Both benefits, during Mabel Pancratz's lifetime, were used to bear a substantial portion of the cost of maintaining the home which mother and daughter shared together. The only other income into the home was the mother's irregular earnings of approximately $1,000 per year. Plaintiff's counsel in his direct examination of Paul Pancratz, did not attempt to demonstrate Sara Lee's financial dependence upon her mother--did not, presumably, intend to rely upon the direct financial support which the mother provided to her adult daughter.

Obviously, the decedent mother's income--more particularly, the extent of the use of such income as support for the adult child is a material fact bearing on An element of the child's loss. In the instant case, the adult child had two resources, the total effect of which was merely to negate the plaintiff's pleading that the mother was the child's 'sole and only support.' To the extent that the amount of the daughter's benefits--although payable to the mother during the mother's lifetime--tended to deny the plaintiff's pleading of sole source of support, they were material facts. We note, particularly, that plaintiff made no serious objection to the admissibility of such matters.

We fail to see, however, how the extent of the daughter's resources after her mother's death can in any sense even partially be used as...