Wooldridge v. Woolett, 4357-II

• Decision Date: 13 April 1981
• Docket Number: No. 4357-II,4357-II
• Citation: 28 Wn.App. 869,626 P.2d 1007
• Parties: Stanley WOOLDRIDGE, Administrator of the Estate of Clifford S. Wooldridge, Deceased, Appellant, v. Scott Allen WOOLETT, a minor child; Cynthia Ann Sofie, a minor child; Louis E. Sofie and Jane Doe Sofie, husband and wife; and John Judd and Jane Doe Judd, husband and wife, Respondents.
• Court: Washington Court of Appeals

Page 869

28 Wn.App. 869

626 P.2d 1007

Stanley WOOLDRIDGE, Administrator of the Estate of Clifford S. Wooldridge, Deceased, Appellant, v. Scott Allen WOOLETT, a minor child; Cynthia Ann Sofie, a minor child; Louis E. Sofie and Jane Doe Sofie husband and wife; and John Judd and Jane Doe Judd, husband and wife, Respondents.

No. 4357-II.

Court of Appeals of Washington, Division 2.

April 13, 1981.

David V. Johnson, Port Angeles, for appellant.

Ken Williams, Port Angeles, Richard L. Gemson, Seattle, for respondents.

PETRIE, Judge.

Cliff Wooldridge was killed instantly while riding as a passenger in a vehicle which crashed into an embankment on January 15, 1977. As administrator of Cliff's estate, Stanley Wooldridge, decedent's father, filed this survival action under RCW 4.20.046 alleging that the driver of the car and the owners of the car negligently caused his son's death. Scott Woolett, the driver, and Cynthia Sofie, the owner, both minors, admitted liability. By order on summary judgment Cynthia's parents had previously been dismissed as parties defendant. The jury awarded the estate the exact amount of special damages proved, but failed to award any general damages, despite the opinion of the only economist who testified at trial that if Cliff had lived a normal life span the present value of his expected life estate would be $66,450. The trial court denied the administrator's motion for new trial. He appealed to the Supreme Court and the cause was thereafter transferred to this court for resolution of the issues on appeal.

We consider first the administrator's general contention that because of the gross inadequacy of the jury award, the trial court erred by denying his motion for new trial. Obviously, the jury found that Cliff's estate would have no value had he survived the accident and lived a normal span of life. The record reveals that Cliff Wooldridge was killed 3 weeks before his 22nd birthday. He was affable and single, and he possessed average intelligence and respectable athletic skill. He completed a high school education and attended community college a portion of one year. After graduation from high school in 1974 his work record was sporadic and limited.

This court will not disturb an award of damages made by a jury if the amount is not so disproportionate as to indicate it resulted from passion or prejudice. Lundgren v. Whitney's, Inc., 94 Wash.2d 91, 614 P.2d 1272 (1980). If the damages are within the range of evidence they will not be found to have been motivated by passion or prejudice solely on the amount awarded. Cooperstein v. Van Natter, 26 Wash.App. 91, 611 P.2d 1332 (1980). The granting of a new trial on grounds of inadequate damages is peculiarly within the discretion of the trial court, and we will not disturb a denial of such motion absent manifest abuse of discretion. Cowan v. Jensen, 79 Wash.2d 844, 490 P.2d 436 (1971). The jury's complete denial of any general damages is perhaps unusual, but it is indicative of the jury's determination that if Cliff Wooldridge had lived his savings at the end of his life would have been zero. This was a prerogative of the jury based upon all the evidence; they could have concluded his earnings would have been less than the average assumed by the economist, or that his personal expenses would have been greater than the average assumed by the economist. Consequently, we do not disturb the trial judge's denial of the motion for new trial.

In reaching this conclusion we note that the purpose of damages in a survival action is to reimburse the decedent's estate for such monetary losses it sustains as a result of decedent's untimely death. Criscuola v. Andrews, 82 Wash.2d 68, 507 P.2d 149 (1973) (dictum). It is not an action for damages by members of decedent's family for their loss due to decedent's death. See Martin, Measuring Damages in Survival Actions for Tortious Death, 47 Wash.L.Rev. 609, 610-13 (1972).

Over plaintiff's objection, the trial court allowed the county coroner to testify that a document sent him by the state toxicologist indicated that at the time Cliff Wooldridge died the amount of alcohol in his blood was 0.17 percent by weight. The administrator argues that the toxicology test results were erroneously admitted because (1) no evidentiary foundation was established, (2) the information was privileged, and (3) the test results were hearsay.

The coroner testified that he did not perform the tests himself but that they were performed pursuant to statutory authority by the state toxicologist, RCW 46.52.065. This statute authorizes the state toxicologist to perform blood alcohol content tests on "all drivers and all pedestrians who are killed in any traffic accident where the death occurred within four hours after the accident." (Emphasis added.) Because Cliff Wooldridge was a passenger in the Sofie vehicle, the statute's authorization permitting admission of such analyses into evidence "in any civil or criminal action where relevant" does not squarely apply. Accordingly, the test results were not admissible under RCW 46.52.065. Nevertheless, they were admissible under RCW 68.08.106, which allows the coroner to make or cause to be made blood analysis under certain circumstances. The record reveals that the blood sample was not taken merely as a report or record of autopsy or postmortem, but as part of a criminal investigation. Accordingly, it was not privileged pursuant to RCW 68.08.105. Zenith Transport, Ltd. v. Bellingham Nat'l Bank, 64 Wash.2d 967, 395 P.2d 498 (1964). Furthermore, the record, though scant on the subject, indicates prima facie that the test results were accurate, and therefore admissible by the coroner. ¹ Hoffman v. Tracy, 67 Wash.2d 31, 406 P.2d 323 (1965); Superior Asphalt & Concrete Co. v. Department of Labor & Indus., 19 Wash.App. 800, 578 P.2d 59 (1978).

Next, the administrator contends the trial court unduly restricted the economist's testimony. The trial court limited the economist's projection of the estate's net worth to future net earnings of the decedent less his personal expenses discounted to present value. The administrator asserts that the trial court erred in prohibiting the expert from testifying to the estate's probable net worth based on income which would include not only earnings but transfer payments, such as rentals, pensions and welfare. The court's limitation of the testimony comported with the general rule of damages in survival actions. Hinzman v. Palmanteer, 81 Wash.2d 327, 501 P.2d 1228 (1972); Balmer v. Dilley, 81 Wash.2d 367, 502 P.2d 456 (1972); Criscuola v. Andrews, supra (dictum). Consideration of possible transfer payments would be inappropriate in this case. Due to the decedent's youth, consideration of such factors would be too conjectural. See Hinzman v. Palmanteer, supra. ² We find no abuse of discretion in the trial court's limitation of the economist's testimony.

Over the administrator's objection, the court allowed the defense to illustrate, by cross-examination of plaintiff's expert witness, that the decedent's future net earnings should be reduced by the amount of social security taxes payable on decedent's expected earnings. Furthermore, defense counsel was permitted to argue to the jury that they should reduce the expert's projection by six percent, roughly the percentage of earnings presently payable for social security purposes. We need not tarry on this issue because it is obvious that the jury did not consider social security deductions in reaching the damages award. We reserve for some future date any determination of whether net earnings may properly include social security taxes payable. Any error, if it was error, was certainly not prejudicial and would not provide grounds for reversal. See Wappenstein v. Schrepel, 19 Wash.2d 371, 142 P.2d 897 (1943).

Of major concern to the administrator is the trial court's limitation of general damages for shortened life expectancy measured only in terms of loss of decedent's future earning capacity. At trial, plaintiff took exception to the court's damage instruction to the jury, contending it did not include general damages for "shortened life expectancy" ³ as a separate claim.

The estate administrator brought this action under RCW 4.20.046, the survival statute, which provides in relevant part:

(1) All causes of action by a person or persons against another person or persons shall survive to the personal representatives of the former ... Provided, however, That no personal representative shall be entitled to recover damages for pain and suffering, anxiety, emotional distress, or humiliation personal to and suffered by a deceased.

(First and second emphasis added, third emphasis in original.)

We acknowledge that the purpose of the statute is to allow all claims, except those specifically excluded by the statute to survive to the tort claimant's estate. Harvey v. Cleman, 65 Wash.2d 853, 400 P.2d 87 (1965).

The estate administrator cites Warner v. McCaughan, 77 Wash.2d 178, 460 P.2d 272 (1969), and Hinzman v. Palmanteer, supra, for authority that shortened life expectancy, i. e., "loss of life's pleasures" is a compensable loss in survival actions. We note in Warner, 77 Wash.2d at 182-83, 460 P.2d 272 a comment that the court disagreed with a position urged by the tortfeasor in that case that damages for "permanent injuries, shortened life expectancy, and impaired earning capacity," all "thought to be personal to a decedent" were impliedly excluded as recoverable damages in a survival action because of the proviso in RCW 4.20.046. But the real holding in Warner is that disabilities and permanent loss of earning power sustained by a tort victim caused by a tortfeasor are recoverable by the victim's estate after her death. The court did not discuss the concept of "shortened life expectancy."

Additionally, we note in Hinzman that the court approved a jury instruction substantially similar to the...