Wilson v. Lund

• Decision Date: 27 November 1968
• Docket Number: No. 40148,40148
• Court: Washington Supreme Court
• Parties: Donald WILSON and Karen Wilson, Appellants, v. Lee L. LUND and Jane Doe Lund, husband and wife, d/b/a Triple L. Ranch, Respondents.

Page 945

74 Wn.2d 945

447 P.2d 718

Donald WILSON and Karen Wilson, Appellants, v. Lee L. LUND and Jane Doe Lund, husband and wife, d/b/a

Triple L. Ranch, Respondents.

No. 40148.

Supreme Court of Washington, Department 2.

Nov. 27, 1968.

Neil Hoff and Fred Frohmader, Tacoma, for appellants.

Merrick, Burgess & Hofstedt, F. Ross Burgess, Seattle, for respondents.

HUNTER, Judge.

This is an appeal from an order dismissing the appellant, Karen Wilson, as a party plaintiff from an action for the wrongful death of her child, and prohibiting the introduction of psychiatric testimony as evidence of damages.

Karen Wilson joined with her former husband, Donald Wilson, plaintiffs (appellants; Karen Wilson hereafter will be treated as the sole party appealing), in bringing an action under RCW 4.24.010 (the child death statute) against the defendants (respondents). In the amended complaint each party plaintiff made a separate claim for damages. Prior to trial, the defendants moved (1) to dismiss Karen Wilson as a party plaintiff, and (2) to prohibit Karen Wilson from introducing psychiatric testimony on the issue of damages. An order was entered granting both motions, from which Karen Wilson has appealed.

The facts in this case may be briefly stated as follows. Donald and Karen Wilson were divorced in 1962, at which time the mother was awarded custody of the couple's three minor children. Donald Wilson was ordered to pay child support and has done so regularly. Karen Wilson has not been employed since the divorce and has not contributed financially to the support of the children. The father enjoys visitation privileges, although he presently no longer resides in this state. The Wilson's 5-year-old son Kelley was killed in a riding accident while a guest at the defendant's dude ranch on August 5, 1966. Both parents instituted suit against the ranch owners under RCW 4.24.010.

The appellant's first contention is that her dismissal as a party plaintiff was erroneous. She argues that she is entitled to maintain an action under the statute because the marital community has been dissolved and because she was the parent with custody of the deceased child. We agree.

We have examined the purpose of the statute, with reference to the statutory language and to our decisions interpreting that language, and we have concluded that the legislature, under the statute, created a substantive right of recovery running to both parents.

RCW 4.24.010, in pertinent part, reads:

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 of a minor child, or a child on whom either is dependent for support, and the mother for the injury or death of an illegitimate minor child, or an illegitimate child on whom she is dependent for support.

We said in In re Horse Heaven Irrigation Dist., 11 Wash.2d 218, 226, 118 P.2d 972, 976 (1941):

The courts, in pursuance of the general object of giving effect to the intention of the legislature, are not controlled by the literal meaning of the language of the statute, but the spirit or intention of the law prevails over the letter thereof.

It is a rule of such universal application as to need no citation of sustaining authority that no construction should be given to a statute which leads to gross injustice or absurdity.

See also Lenci v. City of Seattle, 63 Wash.2d 664, 388 P.2d 926 (1964).

As stated in Nationwide Papers Inc. v. Northwest Egg Sales, Inc., 69 Wash.2d 72, 76, 416 P.2d 687, 689 (1966):

Language within a statute must be read in context with the entire statute and construed in a manner consistent with the general purposes of the statute.

A learned writer has explained:

The presumption is that the lawmaker has a definite purpose in every enactment and has adapted and formulated the subsidiary provisions in harmony with that purpose; that these are needful to accomplish it; and that, if that is the intended effect, they will, at least, conduce to effectuate it. That purpose is an implied limitation on the sense of general terms, and a touchstone for the expansion of narrower terms. This intention affords the key to the sense and scope of minor provisions. From this assumption proceeds the general rule that the cardinal purpose or intent of the whole act shall control, and that all the parts be interpreted as subsidiary and harmonious. 'A statute is to be construed with reference to its manifest object, and if the language is susceptible of two constructions, one which will carry out and the other defeat such manifest object, it should receive the former construction.' 2 Sutherland, Statutory Construction § 4704 (3d ed. Horack).

We approach the issue in this case with the above principles of statutory construction in mind.

In Lockhart v. Besel, 71 Wash.2d 112, 426 P.2d 605 (1967), we held that damages recoverable under RCW 4.24.010 should include compensation for loss of companionship. This decision was soon afterwards incorporated in the terms of an amendment to RCW 4.24.010, enacted by the 1967 extraordinary legislative session. Prior to Lockhart v. Besel, supra, recovery under the statute was limited to medical and funeral expenses plus the net value of the loss of the child's services. The Lockhart case and the subsequent amendment to the statute have further emphasized the manifest purpose of RCW 4.24.010: to allow both parents to recover for the injury inflicted on them by the wrongful death of a child, and this injury is now expressly defined by the legislature to include the highly personal elements of loss of companionship and 'destruction of the parent-child relationship.' RCW 4.24.010.

In addition to establishing the substantive right to recovery, RCW 4.24.010 (in the portion quoted, supra); explicitly deals with the procedural matter of who may bring the action. The husband is designated for this purpose, save in the event of his death, or his desertion of the family, or where the child is illegitimate. The statute is silent as to who may being the action when there has been a divorce.

To hold, as argued by the respondents, that only the father can bring the action under the statute after a divorce, would mean that the divorce mother's rights would always be subject to the whim of the former husband, who might be hostile and who is under no legal duty to protect her rights. This result would be unjust and would defeat the legislative purpose. Accordingly, we hold that the divorced mother is entitled to bring suit in her own name under RCW 4.24.010. See Haddock for Use and Benefit of Wiggins v. Florida Motor Lines Corp., 150 Fla. 848, 9 So.2d 98 (1942).

The appellant secondly contends that the trial court erred in entering its order prohibiting her 'from calling a psychiatrist to testify as to injury to parent-child relationship and/or loss of companionship.'

We do not reach the arguments advanced by the appellant in support of admitting such testimony, since the order entered by the trial court was premature. It is improper for a trial court to determine in a pretrial order, that potential evidence is irrelevant, without having called for an offer of proof or its equivalent. This would be deciding the relevancy of evidence upon the basis of conjecture.

We reverse the order of the trial court and remand this cause for further proceedings not inconsistent with this opinion.

FINLEY, C.J., and ROSELLINI and HALE, JJ., concur.

HAMILTON, Judge (concurring).

I concur with the result reached by the majority opinion in this case.

I pause only to point out that the legislature by RCW 4.24.010 seemingly, if not manifestly, intended to create a cause of action springing from the wrongful injury or death of a minor child, for the Benefit of both parents of the child, and, this court has indirectly, if not directly, recognized such to be the case. Atkeson v. Jackson Estate, 72 Wash. 233, 130 P. 102 (1913), and Upchurch v. Hubbard, 29 Wash.2d 559, 188 P.2d 82 (1947). In each of the cited cases, both parents were party plaintiffs, and, although the question of the mother's status as a party plaintiff was apparently not raised in either case, this court accepted her participation somewhat as a matter of course and spoke of the right of the 'parents' to recover damages. I cannot, therefore, agree with the dissent, which implies, in part at least, that the cause of action is one created for and resting, under normal circumstances, exclusively in the father. Certainly, the language of the statute, couched as it is in somewhat permissive terms, does not dictate such a conclusion, nor does it expressly exclude in the ordinary case the joinder of the mother as a party plaintiff. In short, it simply permits a father, who is alive and has not deserted his family, to maintain the action, without explicitly denying any right in the mother to join in the action as a party plaintiff.

This view of the implications of the statute would appear to be further borne out by the case of Dean v. Oregon R. & Nav. Co., 38 Wash. 565, 80 P. 842 (1905), wherein this court partially considered the propriety of the father and mother being named as joint plaintiffs in an action under RCW 4.24.010. In sustaining the trial court's refusal in that action, over the objection of the defendant, to dismiss the mother until the conclusion of the evidence, this court stated, at p. 569, 80 P. at p. 843 of the opinion:

Without deciding whether or not husband and wife may jointly maintain an action of this kind, we do not think the trial court committed error in dismissing the wife and permitting the husband to continue the action. It is not perceived that this action of the court in any manner prejudiced the rights of appellant. The spirit of our Code permits and requires great liberality in all matter of pleading and practice, to the end that substantial justice may be attained. We think the action of the trial court in this particular was...