Stuart v. Consolidated Foods Corp.

• Decision Date: 01 May 1972
• Docket Number: No. 969--I,969--I
• Citation: 6 Wn.App. 841,496 P.2d 527
• Parties: Donald H. STUART, Administrator of the Estate of Ronald W. Stuart, Deceased, Appellant, v. CONSOLIDATED FOODS CORPORATION and Abbey Rents, Respondents.
• Court: Washington Court of Appeals

Page 841

6 Wn.App. 841

496 P.2d 527

Donald H. STUART, Administrator of the Estate of Ronald W Stuart, Deceased, Appellant, v. CONSOLIDATED FOODS CORPORATION and Abbey Rents, Respondents.

No. 969--I.

Court of Appeals of Washington, Division 1, Panel One.

May 1, 1972.

Rehearing Denied June 8, 1972.

Petition for Review Denied Aug. 18, 1972.

Critchlow, Williams, Ryals & Schuster, David E. Williams, Richland, for appellant.

Karr, Tuttle, Koch, Campbell, Mawer & Morrow, F. Lee Campbell, Seattle, for respondents.

CALLOW, Judge.

This is a wrongful death action brought by the administrator of the decedent's estate for the benefit of the surviving wife and child claiming that death was due to the negligence of the defendant.

The decedent was working as a crewman for General Telephone Company. His crew was engaged in installing an overhead guy wire from a 'lead pole' which supports telephone lines, high over a two lane public road to the top of a 'stub pole' on the other side of the road. The purpose of the installation was to support the lead pole which was out of plumb.

A cable had been attached to the stub pole twenty feet in the air and then stretched tautly across the road and over the boom of the telephone truck which was parked parallel to the road but on the shoulder opposite the stub pole. The telephone truck has an extension boom which was folded at rest parallel to the ground with the high edge of the boom approximately 11 1/2 feet above the ground. The cable had been stretched from the stub pole across the road and over the boom, and the remaining coil of the cable was then dropped to the ground where it was held in place by the decedent, who stood upon it for the purpose of keeping it taut while the others in his crew prepared to cut the cable to proper length so that it could be attached to the lead pole. The purpose of stringing the cable tautly from the stub pole, across the road and over the boom of the truck was to provide overhead clearance for traffic moving between the two poles while the work was in progress. A member of the telephone crew had been stationed by the foreman near the truck to assist in proper movement of the traffic. The road to the north of the truck was under construction by various contractors who had placed warning signs and flags which concerned that construction. The speed limit was 35 miles per hour in the area.

The defendant's truck approached from the north, saw the flagman, the telephone truck, the poles, and the cable and proceeded between the two poles. The upper corner of the truck snagged the cable on which the decedent was standing, pulling it with great force around his legs, yanking him into the air and causing fatal injuries.

The jury returned a verdict for the defense and the estate has appealed.

In the absence of the jury at the beginning of the trial, plaintiff's counsel presented a motion in limine to restrict the offering of evidence of the remarriage of the surviving spouse. Plaintiff claims that the admission of this evidence was wrongful, clouded the consideration of the merits of the action, and that evidence of remarriage should not be before a jury in a wrongful death action in any event.

Damages in a wrongful death action brought for the benefit of a surviving spouse are fixed at the death of the decedent. Gray v. Goodson,61 Wash.2d 319, 378 P.2d 413 (1963); Atkeson v. Jackson Estate, 72 Wash. 233, 130 P. 102 (1913), aff'd on rehearing, 74 Wash. 700, 134 P. 175 (1913); C. McCormick, Damages §§ 98, 99 (1935), et seq. See also Comment, Damages in Washington Wrongful Death Actions, 35 Wash.L.Rev. 441 (1960). Evidence of remarriage or prospective remarriage of the surviving spouse in a wrongful death action should be excluded. The exclusion of such evidence leaves to the understanding and experience of the jury the possibility of remarriage and avoids excursions into collateral investigations which, even if allowed, would leave a jury in no better than a speculative position. A landmark case is The City of Rome, 48 F.2d 333 (S.D.N.Y.1930), which refused to allow evidence of remarriage or its possibility to be offered to mitigate damages. The court stated at 343:

If we should enter upon an inquiry as to the relative merits of the new husband as a provider, coupled with his age, employment, condition of health, and other incidental elements concerning him, unavoidably we should embark upon a realm of speculation and be led into a sea of impossible calculations. Moreover, adherence to the rule followed by the commissioner seems essential to consistency with the holding that, upon the death of the first husband, there was 'an immediate, final and absolute vesting' in his widow, if the statutory beneficiary, of a cause of action on that account. (Citation omitted.)

The federal courts further consider the rule in City of Brady v. Finklea, 400 F.2d 352 (5th Cir.1968); Dixon v. Serodino, Inc., 331 F.2d 668 (6th Cir.1964); and Johns v. Baltimore & O.R.R., 143 F.Supp. 15 (W.D.Pa.1956).

The opinion in Reynolds v. Willis, 209 A.2d 760 (Del.1965), states at 762:

As to whether remarriage serves to mitigate damages, it appears that only two states in this country have answered the question in the affirmative in a suit by a widow. This was in the Michigan case of Sipes v. Mich. C.R. Co., 231 Mich. 404, 204 N.W. 84; and the Wisconsin case of Jensen v. Heritage Mut. Ins. Co., 23 Wis.2d 344, 127 N.W.2d 228. The majority rule is to the contrary. See 87 A.L.R.2d 252. Obviously, inherent in the minority rule is the admissibility into evidence of the probability of remarriage, a question which requires a jury to make conjectures and speculations upon the likelihood of remarriage, as well as a comparison of the manner in which the widow was supported with that in which she might be supported by some unknown future husband acquired at some unknown future date. A more speculative problem is hard to conceive. Yet, to permit an actual remarriage, but not the possibility thereof, to mitigate damages could cause unusual results. The widow who remarries the day after trial would receive an unjust preference over the widow who remarries the day before trial. We think it more reasonable to say that a defendant should not be allowed to profit by an actual or possible remarriage of the widow, just as he may not profit through monies coming to her from insurance policies purchased by her husband upon his own life, or from some other collateral source. We affirm the ruling of the Court below on this point.

See also Wiesel v. Cicerone, 261 A.2d 889 (R.I.1970); Gallo v. Southern Pac. Co., 43 Cal.App.2d 339, 110 P.2d 1062 (1941); S. Speiser, Recovery for Wrongful Death § 6:12 (1966), Annot., 87 A.L.R.2d 252 (1963).

In Bunda v. Hardwick, 376 Mich. 640, 138 N.W.2d 305 (1965), the Michigan court overruled five prior cases which had allowed evidence of remarriage to mitigate damages and held that such evidence was irrelevant and should be excluded. We feel that such help that the jury might receive from such evidence is outweighed by the possible resultant harm and a proper jury collateral source which is not a proper jury concern. Clason v. Velguth, 168 Wash. 242, 11 P.2d 249 (1932); Pancratz v. Turon, 3 Wash.App. 182, 473 P.2d 409 (1970).

Such evidence should not have been admitted in any event, but when evidence is wrongfully admitted which is concerned solely with damages and the verdict reflects no liability, the error is harmless. Rotundo v. Fischlowitz, 428 S.W.2d 581 (Mo.1968); Robertson v. Southwestern Bell Telephone Co., 403 S.W.2d 459 (Tex.Civ.App.1966); Palmer v. Waterman Steamship Corp., 52 Wash.2d 604, 328 P.2d 169, cert. denied, 359 U.S. 985, 79 S.Ct. 940, 3 L.Ed.2d 933 (1958). Where error is committed but the result could not have been changed by the mistake, the error is harmless and does not justify a new trial. Kennedy v. Clausing, 74 Wash.2d 483, 445 P.2d 637 (1968); Mehrer v. Easterling, 71 Wash.2d 104, 426 P.2d 843 (1967); McCartney v. Old Line Life Ins. Co., 3 Wash.App. 92, 472 P.2d 581 (1970). The error committed could not affect the jury's conclusion about liability; and, therefore, reversal is inappropriate.

The statement of facts sets forth in full the instructions as given by the court. The statement of facts does not include any of plaintiff's counsel's objections to the giving or failure to give instructions. When both parties rested, the jury recessed at the noon hour; and the statement of facts reflects as follows: '(Court reconvened at 1:30...