Hinzman v. Palmanteer

501 P.2d 1228, 81 Wash. 2d 327, 1972 Wash. LEXIS 737
CourtWashington Supreme Court
DecidedOctober 19, 1972
Docket42195
StatusPublished
Cited by64 cases

This text of 501 P.2d 1228 (Hinzman v. Palmanteer) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hinzman v. Palmanteer, 501 P.2d 1228, 81 Wash. 2d 327, 1972 Wash. LEXIS 737 (Wash. 1972).

Opinions

Utter, J.

Lauretta Lee Hinzman, 7, died from injuries sustained in an accident while riding as a passenger in a truck driven by Gene A. Palmanteer and owned by Ray Irwin. Palmanteer was an employee of Ober Logging Company. Suit was brought on behalf of the estate of Lauretta and of her parents, Mr. and Mrs. Bernard Hinzman. The jury awarded the estate $8,400 and her parents, $16,500 against all defendants.

Appellants contend that the child’s parents are entitled to recovery only for loss of love and companionship and her funeral expenses, and that the jury should not have been instructed they could allow recovery for “destruction of the parent-child relationship”; that there was lack of proof to support any verdict in favor of the estate of the child; and, that the amount of recovery to the child’s estate should in [329]*329no event exceed the present cash value of her net income as distinguished from gross income. We find no error and affirm the judgment of the trial court.

Appellants’ first claim of error is directed to the cause of action brought on behalf of the parents of the deceased child and that portion of instruction No. 5 which instructed the jury that in determining the amount of recovery for that cause of action they could consider “the loss of love and companionship of their child and for the destruction of the parent-child relationship as under all the circumstances may be just.”

Appellants contend that love and companionship and parent-child relationship are one and the same thing and that the jury, by this instruction, could consider them as separate and distinct items and erroneously allow damages for each. Our court has held the statutory terms “loss of love and injury to or destruction of the parent-child relationship” were intended by the legislature to add the elements of “parental grief, mental anguish and suffering” as elements of damages as well as those elements contained within the term “loss of companionship”. Wilson v. Lund, 80 Wn.2d 91, 491 P.2d 1287 (1971). The court did not err in instructing the jury in the words of the statute.

Appellants’ remaining assignments of error all are directed to the determination by the jury that damages were properly recoverable by the estate of Lauretta Hinzman.

Recovery by the estate is sought under RCW 4.20.046. Under this statute, all causes of action brought on behalf of a deceased person survive to their personal representative except no recovery is allowed for damages for “pain and suffering, anxiety, emotional distress, or humiliation personal to and suffered by a deceased.” In instruction No. 5, the court instructed the jury that, in determining the amount of the recovery in this cause of action, they

shall allow such sum as general damages as in your opinion will fairly and justly compensate her estate for her wrongful death. In this regard you may take into consideration and award compensation for the shortened life [330]*330expectancy caused by her death, as well as the loss of the value of her future earning capacity caused by her wrongful death.”

Appellants do not attack the award as excessive, but claim the elements considered by the jury were not specific enough to allow the jury to reach a verdict on anything but speculation and conjecture, and that the instruction allowed the jury to consider items of general damages other than shortened fife expectancy and loss of future earning capacity. We do not agree.

The sentence with reference to general damages lists the only items the jury was told were a part of general damages. We do not believe a fair reading of the word “may”, in this context, would allow the jury to consider anything other than the designated items.

Shortened life expectancy caused by the child’s death and the resulting loss of value of her future earning capacity to her estate are specifically recognized as items of recovery not excluded by the statute. Warner v. McCaughan, 77 Wn.2d 178, 183, 460 P.2d 272 (1969). We there noted that damages to the deceased include “ ‘an allowance for prospective loss of earnings during his normal fife expectancy, discounted to present worth, and with such other adjustments as the facts may require.’ ”

These damages, in the case of a 7-year-old child, are extremely nonspecific. The courts, however, refuse to deny recovery for that reason. Cox v. Remillard, 237 F.2d 909 (9th Cir. 1956); Lane v. Hatfield, 173 Ore. 79, 143 P.2d 230 (1943). In Cox, the court noted

it was impossible to furnish all of the proof of anticipated earnings and savings which might be furnished in the case of an adult, but that circumstance does not mean that no damages whatever can be recovered . . .

Cox v. Remillard, supra at 911. The court further indicated that, in cases of this character, it is not possible to prove damages with any approximation of certainty and the jury must estimate the damages as best they can by reasonable probabilities, based upon their sound judgment as to what [331]*331would be just and proper under all of the circumstances. The court held it to be unnecessary for a witness to name a specific sum as the precise amount of the damages suffered.

The speculative nature of the damages in this case, based on earning capacity and other facets of a fife still new and unformed, is not a reason for denying such damages altogether where the fife expectancy of the child was before the jury, and the ultimate assessment of damages is one a reviewing court can control. Clark v. Icicle Irr. Dist., 72 Wn.2d 201, 432 P.2d 541 (1967); Rohlfing v. Moses Akiona, Ltd., 45 Hawaii 373, 369 P.2d 96 (1961); Alleva v. Porter, 184 Pa. Super. 335, 134 A.2d 501 (1957).

Under some circumstances, not present in this case, a serious question of duplication of damages could be raised in actions brought both under RCW 4.20.046, the survival statute, and RCW 4.24.010, the wrongful death statute. As discussed extensively in Warner v. McCaughan, supra, there is a definite distinction between the two statutes. In the survival statute, all causes of action brought on behalf of the deceased, with certain exceptions not here applicable, survive and the injured person’s claim continues after death as an asset of his estate. One of the causes of action available to the estate is the claim for permanent loss of earning power. The claim for damages under the wrongful death statute is for a new cause of action for the benefit of the decedent’s heirs, or next of kin, and is premised upon the alleged wrong to the statutory beneficiaries, not the estate.

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Bluebook (online)
501 P.2d 1228, 81 Wash. 2d 327, 1972 Wash. LEXIS 737, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hinzman-v-palmanteer-wash-1972.