Upchurch v. Hubbard

• Decision Date: 29 December 1947
• Docket Number: 30380.
• Citation: 29 Wn.2d 559,188 P.2d 82
• Parties: UPCHURCH et ux. v. HUBBARD et ux.
• Court: Washington Supreme Court

188 P.2d 82

29 Wn.2d 559

UPCHURCH et ux. v. HUBBARD et ux.

No. 30380.

Supreme Court of Washington

December 29, 1947

Department 2

Action by Eldon E. Upchurch and Elberta V. Upchurch, husband and wife, against Cecil Hubbard and Ethel M. Hubbard, husband and wife, for death of plaintiff's minor son in a truck accident. From a judgment for the plaintiffs, the defendants appeal.

Affirmed.

Appeal from Superior Court, Spokane County; Carl C. Quackenbush Judge.

Keith &amp Winston and Edge, Davenport & Edge, all of Spokane, for appellants.

Robertson & Smith, of Spokane, for respondents.

STEINERT Justice.

Plaintiffs brought suit to recover damages for the death of their minor son, alleged to have been caused by the negligent acts of one of the defendants in the operation of a motor vehicle. The action was tried Before a jury, resulting in a verdict in favor of plaintiffs. Upon the denial of defendants' motion for judgment notwithstanding the verdict or, in the alternative, for a new trial, the court entered judgment from which defendants appealed.

There is very little dispute concerning the facts in the case. Appellant Cecil Hubbard, to whom we shall hereinafter refer as though he were the sole appellant, was employed by the United States post office department as a mail carrier in the city of Spokane. For a number of years prior to the date of the accident here involved, he drove a truck, delivering parcel post packages in the residential districts of the city. On August 12, 1946, at about two-thirty o'clock p. m., he was so engaged, in the vicinity of Sinto avenue and Lindeke street. He was driving a 1941 Dodge pickup truck, upon the rear portion of which was a panel body wherein parcel post packages were carried; on each side of the truck were a door and a running board.

Accompanying appellant on this particular occasion was an assistant, Byron G. Boyer, who sat on the right-hand side in the cab of the truck.

Driving west along Sinto avenue, appellant stopped in front of a house numbered 2615, which is on the south side of the avenue. This was in accordance with his usual custom, in residential districts, of parking on that side of the street on which parcel post mail was to be delivered. Appellant then made a delivery at number 2623 Sinto avenue, which was a few doors west of the place where the truck was parked, while his assistant, Boyer, made a delivery to a house numbered 2609, which was a short distance east of the parked vehicle.

Boyer returned to the truck first, and was already seated in his accustomed place when appellant returned. Upon appellant's return to the vehicle he observed a boy, Eldon Richard Upchurch, standing on the right-hand running board talking to Boyer. Eldon, who was eight years and three months old, lived with his parents at number 2615 Sinto avenue. Appellant had seen the boy on former occasions, but had only a slight acquaintance with him.

About the time that appellant seated himself in the truck, Eldon, who was still standing on the running board, inquired of him how far he was going. Appellant replied: 'Up in the next block.' Thereupon Eldon said: 'I am going for a ride.' To this appellant responded: 'That is not a good idea, you had better get off.' The boy retained his position, however, and appellant thereupon started his motor and proceeded forward, intending to make a delivery in the next block, on the north side of Sinto avenue.

We quote pertinent portions of appellant's testimony descriptive of the happening of the accident:

'Q. Will you explain how he was standing on the running board and how, if at all, he was holding on? A. The windshield of the truck was open. He had his right arm hooked around the windshield post. He was facing almost straight into the truck, a little backwards. And I proceeded up to the intersection in low very slowly and across the intersection.

'Q. Will you raise your voice just a little, please, Mr. Hubbard? A. Across the intersection and he showed no intentions of getting off, so, I supposed he would go on up to the next stop with me and, so, I shifted gears and proceeded on up the street very slowly, that is, I didn't jerk the car or anything. I wasn't going any place in any hurry, taking into consideration that the boy was on the running board. And he got about two blocks, or two lots up the street, I believe, it was in front of 2710. * * * A. (continuing) We had got about as far as 2710 Sinto and he said, 'This is as far as I can go.' I couldn't tell you his exact words, I don't know, but that was the impression I got, he said, 'I can't go any further, that is as far as I can go' and he immediately stepped off. As he spoke, he was releasing his hold on the truck. Mr. Boyer, who was with me, reached for him, that is, made a motion to reach for him, and said, 'Don't get off' but he couldn't reach him, there was no time to stop the truck, no time to do anything, he was just off.'

The only dispute in the evidence is with reference to the rate of speed at which the truck was traveling when the boy stepped off the running board. Respondents' evidence was to the effect that he was traveling at approximately twenty miles an hour; appellant's evidence was that he was driving at a speed of twelve or fifteen miles an hour. The difference is of no great importance.

Prior to stepping off the running board, the boy had not shown any indication of fright, but had seemed to be enjoying the ride. As he stepped off, however, he was facing the rear of the truck, and in consequence thereof was thrown backwards violently upon the pavement, sustaining injuries to his head, from which he died two days later.

Appellant admitted that, prior to and at the time of the accident, he was familiar with the law of the state and with an ordinance of the city, making it unlawful to transport any person upon the running board, fenders, hood, or other outside part of any vehicle. He also admitted knowledge of the post office regulations regarding the transportation of people in or on the truck.

At appellant's request, the trial court submitted to the jury an instruction on contributory negligence, which advised the jury that if it found that the deceased, Eldon Richard Upchurch, did not exercise the same degree of care as would be exercised by a boy of the same age, experience, and apparent ability to understand and appreciate the dangers involved, then Eldon Richard Upchurch would be guilty of contributory negligence, and respondents could not recover in this action.

Since the jury returned a verdict in respondents' favor, they obviously found that the boy was not guilty of contributory negligence.

We turn now from the facts to the law pertaining to the case.

The authority for the commencement and maintenance of this action by the parents of their deceased minor child is found in Rem.Rev.Stat. § 184, which provides:

'A father, or in case of his death or desertion of his family, the mother may maintain an action as plaintiff for the injury or death or a minor child * * *.'

This section of the statute and §§ 183, 183-1, all relating to actions for wrongful death, are patterned upon Lord Campbell's Act (9-10 Victoria (1846), chapter 93) although differing in certain respects from the provisions of the English act.

As stated in Hedrick v. Ilwaco Railway & Nav. Co., 4 Wash. 400, 30 P. 714, 715.

'The object and purpose of these statutes is to provide a remedy whereby the family or relatives of the deceased, who might naturally have expected maintenance or assistance from the deceased had he lived, may recover compensation from the wrongdoer commensurate with the loss sustained.'

By the great weight of authority, such statutes are not 'survival statutes,' but create a new cause or right of action. 16 Am.Jur. 48, Death,§ 61; 25 C.J.S., Death, § 15. This court has adopted that principle. Brodie v. Washington Water Power Co., 92 Wash. 574, 159 P. 791; Crevelli v. Chicago, Milwaukee & St. P. R. Co., 98 Wash. 42, 167 P. 66, 66 L.R.A.1918A, 206; Grant v. Fisher Flouring Mills Co., 181 Wash. 576, 44 P.2d 193; Ryan v. Poole, 182 Wash. 532, 47 P.2d 981; Maciejczak v. Bartell, 187 Wash. 113, 60 P.2d 31.

A limitation upon such independently created right, recognized by this court and elsewhere generally, is that the wrongful act or default must be of such character as would have entitled the injured person to maintain an action and recover damages, had not death ensued; stated conversely, if the deceased never had a cause of action, no right of action accrues under the wrongful death statute. 16 Am.Jur. 61, Death, § 82; Ryan v. Poole, supra.

In the Ryan case, supra [182 Wash. 532, 47 P.2d 982], we said:

'It is the general rule, under the wrongful death statutes of the various states, and it is the holding of this court, that such a statute creates a new cause of action and is not a survival statute, and that the measure of damages which the heirs or personal representatives could recover is different from that which the person killed could have recovered had he survived the injury and brought an action for damages. It is also generally held, and the decisions of this court are to the same effect, that, if a deceased could not have recovered damages for his injury had he survived, his heirs or personal representatives cannot recover, because their right of recovery is dependent upon the right which the deceased would have had had he survived. If the deceased had no cause of action, none accrues to his heirs or personal representatives.'

The decision of the present case thus depends upon the solution of the question whether the minor, Eldon Richard Upchurch had he survived, would have been entitled to maintain an action and recover damages for the...