Wentz v. T. E. Connolly, Inc.

• Decision Date: 05 August 1954
• Docket Number: No. 32617,32617
• Citation: 273 P.2d 485,45 Wn.2d 127
• Parties: WENTZ, v. T. E. CONNOLLY, Inc. et al.
• Court: Washington Supreme Court

Page 127

45 Wn.2d 127

273 P.2d 485

WENTZ, v. T. E. CONNOLLY, Inc. et al.

No. 32617.

Supreme Court of Washington, Department 1.

Aug. 5, 1954.

Skeel, McKelvy, Henke, Evenson & Uhlmann, Seattle, for appellants.

Campbell & Klasen, Ephrata, for respondent.

FINLEY, Justice.

This is a personal-injury action, arising from a collision between a truck and a passenger car. The case was tried without a jury and resulted in a judgment of $63,797.25 for the plaintiff. In 1949, T. E. Connolly, Inc., a corporation, was engaged in a construction project for the United States Bureau of Reclamation, known as the Bacon Tunnel. The corporation constructed a private dirt and gravel road between the project and the nearest public highway lying to the east. The private road, several miles in length, was necessary for the transportation of workmen, material, and equipment to the tunnel. The road, running generally from east to west, branched in a 'Y' approximately fourteen hundred feet east of the tunnel. The southwest fork ran up an incline to the mouth of the tunnel. The other fork ran slightly down grade in a northwesterly direction to a parking area for the automobiles of workmen employed on the project.

On the morning of June 30, 1949, Mike Wentz, having completed an eight-hour shift as a workman on the construction project, proceeded to the parking lot. With two other workmen as his passengers, he drove a 1937 Chevrolet coupe slowly from the parking lot in the direction of the 'Y,' which was about two hundred feet east or southeast from the parking lot. He stopped at the junction, or 'Y,' looked to his right up the fork toward the mouth of the tunnel, and then to his left, where he saw dust arising some distance down the main roadway leading to the public highway. Thereupon, Wentz proceeded across the junction to the extreme south side of the road, which was on his right- hand side. He straightened his car to drive down the shank of the 'Y' toward the east. He testified that at this time he saw a large truck bearing down on him and pulling over the center of the roadway towards the car he was driving. Defendant Ralph Scherer was the driver of the truck. He was an employee of defendant T. E. Connolly, Inc., and the truck was being operated by T. E. Connolly, Inc., to transport concrete aggregate to the construction project. The left front part of the truck struck the left front part of the Wentz car, driving the latter backward for a distance estimated, variously, at between forty-five and eighty feet, where the two vehicles came to rest against some large boulders on the south side of the roadway. The road was wide enough at the point of collision to have allowed the truck to pass to the right of the Wentz car and to continue up the fork of the roadway to the tunnel. Scherer testified that he customarily cut to the left side of the road before he reached the 'Y' preparatory to driving up the left, or southwest, fork of the road to the tunnel. He stated that his truck was on the left-hand side of the road at the time of the collision. Scherer further stated that he knew a change of shifts had occurred just prior to the accident, and that workmen on the same shift as Wentz would be driving from the parking area en route to their homes.

The above facts, summarized from the testimony of the several witnesses, were substantially undisputed and were incorporated in the trial court's findings of fact. Wentz was severely injured. A list of his injuries, as found by the trial court from the uncontroverted evidence, is as follows:

'1. Fracture of the left humerus.

'2. Fracture of the left radius and ulna.

'3. Dislocation of the head of the radius.

'4. Partial separation of the sternoclavicular joint.

'5. Loss of 7 teeth and 2 broken.

'6. Bleeding in the left knee joint and roughness of the left knee.

'7. Bruise of the hip.

'8. Extensive multiple contusions involving the posterior side of the left leg from the hip to the knee, the right leg from the knee to the ankle, the right arm, and the left side of the face.

'9. Short laceration of the forehead over the left eye.

'10. Laceration of lower lip, left side.

'11. Fracture of maxilla, left.'

The trial court also found from uncontroverted testimony:

'* * * That as the result of said injuries, the plaintiff's left arm is stiffened and so limited in motion that it cannot be used for manual employment; that traumatic arthritis has set in the elbow joint, causing permanent pain and suffering which will increase in the future; that as the result of the partial separation of the sternoclavicular joint, the plaintiff has a prominent bump, as the result of an abnormal mend, and traumatic arthritis is now present in this joint, and this has caused a limited use of the right arm due to the pain in this joint, which precludes the plaintiff from making any extended use of the right arm for manual labor; that the left knee joint has a roughness causing the plaintiff pain while walking, and that there is a tenderness in the hip as the result of the accident, and the plaintiff has a decided limp; * * *'

The trial court awarded the following damages to Wentz:

                Hospital bill ...................... $   245.00
                Doctor bill ........................     500.00
                Ambulance ..........................      52.25
                Repair of teeth ....................     750.00
                Pain suffering and personal
                 injuries ..........................  15,000.00
                Loss of wages for three years
                 and nine months at $3,000
                 per year ..........................  11,250.00
                Loss of future earnings at $1,500
                 per year for 24 years .............  36,000.00
                                                     ----------
                                                     $63,797.25
                                                     ----------
                

Motions for judgment notwithstanding the verdict and, in the alternative, for a new trial were denied. The corporation and Ralph Scherer appealed.

Appellants' assignments of error may be summarized as follows: (1) The findings of fact by the trial court contain subordinate rather than ultimate facts and, as made, do not support the conclusions of law and the judgment; (2) The trial court failed to find that respondent Wentz was contributorily negligent; and further, the court failed to make any finding on this issued; (3) The evidence does not support the finding that the earning capacity of Wentz was reduced by fifteen hundred dollars a year; (4) The trial court erred in computing damages for loss of earning power; (5) The allowance of fifteen thousand dollars for pain, suffering, and personal injuries is excessive; and (6) As a result of the alleged errors, above, the trial court erred in entering judgment for respondent and in failing to grant a new trial.

We shall now discuss the assignments of error, summarized above. We do not understand the appellants to contend seriously that findings of evidentiary facts rather than ultimate facts constitute reversible error. It is true that we have frequently announced the rule that the trial court is not required to include evidentiary facts in its findings, but need only find the ultimate facts upon the material issues. Eickerman v. Eickerman, 42 Wash.2d 165, 253 P.2d 962; In re Mikelson's Estate, 41 Wash.2d 97, 247 P.2d 540; Phelps v. Phelps, 2 Wash.2d 272, 97 P.2d 1080. This is not to say that detailed findigns are necessarily inadequate to support conclusions of law and a judgment. In fact, where the trial court's findings are supported by the evidence, they are sufficient, if they cover all the issues and support the judgment rendered. Warning v. Warning, 40 Wash.2d 903, 247 P.2d 249.

Appellants do challenge seriously the sufficiency of the findings of fact to support the conclusions of law and the judgment. In essence, appellants argue that, even though their truck was on the left side of the road when it struck the respondent's car, this does not establish negligence or proximate cause. It is argued that respondent Wentz was negligent in failing to allow a fair margin of safety in crossing the junction at a time when he should have been aware of the oncoming truck. It is also contended that, by custom, trucks had the right of way over passenger cars, and that trucks carrying materials to the tunnel customarily traveled on the left side of the road preparatory to entering the left fork leading to the tunnel mouth. These arguments raise the same questions as appellants' other main assignment of error relating to liability; namely, that the court erred in failing to make a finding of contributory negligence on the part of the respondent. In connection with the latter matter, the record shows that the trial court failed to make any specific finding on the issue of contributory negligence. However, the memorandum opinion of the court states that a preponderance of the evidence supported the proposition that, if respondent was negligent, such negligence had terminated at the time of the collision because respondent had successfully crossed the road and had straightened out his car on his own side of the road. In the memorandum opinion, the trial court further states that a preponderance of the evidence did not establish any negligence on the part of the respondent in crossing the junction when he did.

We said in Bowman v. Webster, 42 Wash.2d 129, 253 P.2d 934, 938:

'Where the findings of fact are incomplete or defective in some particular so that a doubt exists as to the theory on which the case was decided, we are sometimes able to overcome the difficulty by referring to the oral or memorandum decision of the trial court. Kinnear v. Graham, supra [133 Wash. 132, 233 P. 304]; Mertens v. Mertens, supra [38 Wash.2d 55, 227 P.2d 724]; Payne v. Vinecore, 40 Wash.2d 746, 246 P.2d 448. The conclusions of law occasionally can be made to serve a similar function.'

We said in Squires v. McLaughlin, Wash., 265 P.2d 265, 269:

'Finally, appellant argues that the trial court erred in...