Hinzman v. Palmanteer , 81 Wash. 2d 327 ( 1972 )

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 no 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 expectancy 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 would 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.

In this suit, the estate of Lauretta Hinzman claimed damages under the survival statute for general damages consisting of loss of value of her future earning capacity as affected by her shortened life expectancy caused by her death.

The parents of the deceased also sought recovery under RCW 4.24.010, the wrongful death statute, for “loss of love and companionship of the child and. for injury to or destruction of the parent-child relationship . . .”. As earlier indicated herein, this language provides recovery for (1) parental grief, mental anguish and suffering, and (2) loss of companionship, defined in Clark v. Icicle Irr. Dist., supra, to be “ ‘the value of mutual society and protection.’ ” The parents did not seek all of the remedies available to them in the wrongful death action under RCW 4.24.010 and had they sought, as allowed by the statute, recovery for loss of “services and support” a potential improper double recovery would have been possible. The anticipated contributions from the deceased to her parents for support could include a substantial portion of what had already been collected in the survival action as prospective earnings of the decedent. Comment, Damages in Wrongful Death and Survival Actions, 29 Ohio St. L.J. 420, 427 (1968).

Appellants’ next assignments of error concern the court’s refusal to give proposed instruction No. 8 which stated if recovery is allowed “it shall be the net amount of value of her property at that time of her death.” The court also refused proposed instruction No. 9 which stated that, in arriving at an amount to which the estate may be entitled, the jury should “deduct from the gross earnings reasonable income taxes, cost of living expenses, amount of gifts, expenses of entertainment, and expenses for medical attention expended during her normal life.” Instructions Nos. 8 and 9 must be read together inasmuch as instruction No. 8 does not indicate to the jury what items, if any, should be considered in arriving at the net amount, while instruction No. 9 furnishes those specific items appellants contend they are to consider.

Three theories have been developed for measuring the lost earning capacity of a decedent. See 29 Ohio St. L.J. 428 (1968). (1) The probable worth of the decedent’s future net earnings had he lived to his normal fife expectancy. Personal expenses are deducted from gross earnings to reach the net. Bryant v. Woodlief, 252 N.C. 488, 114 S.E.2d 241, 81 A.L.R.2d 939 (1960); Gonyer v. Russell, 160 F. Supp. 537 (D.R.I. 1958) aff’d, 264 F.2d 761 (1st Cir. 1959). (2) The present worth of decedent’s probable future savings had he lived to a normal life expectancy. Probable personal and family expenditures are both subtracted from probable gross earnings. Lampe v. Lagomarcino-Grupe Co., 251 Iowa 204, 100 N.W.2d 1 (1959); Florida E. Coast Ry. v. Hayes, 67 Fla. 101, 64 So. 504, 7 A.L.R. 1310 (1914). (3) The present worth of decedent’s future gross earnings. No expenses are deducted from the award computed. Western & Atl. R.R. v. Michael, 175 Ga. 1, 165 S.E. 37 (1932); Lexington Util. Co. v. Parker’s Adm’r, 166 Ky. 81, 178 S.W. 1173 (1915).

We believe the first theory which measures lost earning capacity by deducting personal expenses from gross earnings is the most satisfactory in this case. In an area where damages are at best conjectural, to additionally speculate on whether or not the child would eventually marry and at what age, and when to start deductions for family expenditures seems to us to foreclose use of the second-mentioned rule. We reject a gross earnings test as being an unrealistic forecast of the amount which would truly be left by the decedent at the time of death.

Most of the deductions specified in appellants’ requested instruction No. 9 were 'arguably among those which could be denominated “personal expenses.” The instruction also, however, directs the jury to deduct from the decedent’s gross earnings, “reasonable income taxes.” The majority of the courts considering items to be deducted from the decedent’s gross income and fixing damages for destruction of his earning capacity have held that income tax on those probable future earnings should not be taken into consideration. The courts considering the question have reached their decisions on a variety of grounds. Courts so ruling have considered income tax liability or savings as (1) a matter not pertinent to the damage issue, being a matter between the plaintiff and the faxing authority and of no legal concern to the defendant; (2) that the amount of income tax which might become due on one’s prospective earnings in future years is too conjectural to be considered in fixing damages; or, (3) that to introduce an income tax matter into a lawsuit for damages would be unduly complicating and confusing. Henninger v. Southern Pac. Co., 250 Cal. App. 2d 872, 59 Cal. Rptr. 76 (1967); Hall v. Chicago & N.W. Ry., 5 Ill. 2d 135, 125 N.E.2d 77, 50 A.L.R.2d 661 (1955).

There has been some critical comment of this rule with the contention that fairness and accuracy demand the deduction. Cox v. Northwest Airlines, Inc., 379 F.2d 893 (7th Cir. 1967); 2 F. Harper and F. James, Torts 1326 (1956); C. Peck and W. Hopkins, Economics and Impaired Earning Capacity in Personal Injury Cases, 44 Wash. L. Rev. 351 (1968). The present status, however, of those cases which present a viewpoint contrary to the majority is to hold “where the impact of income tax has a significant and substantial effect in the computation of probable future contributions [it] may not be ignored.” Cox v. Northwest Airlines, Inc., supra at 896; Adams v. Deur, 173 N.W.2d 100 (Iowa 1969); Petition of Marina Mercante Nicaraguense, S.A., 364 F.2d 118 (2d Cir. 1966); Nollenberger v. United Air Lines, Inc., 216 F. Supp. 734 (S.D. Cal. 1963); O’Connor v. United States, 269 F.2d 578 (2d Cir. 1959). Courts have also reasoned that where a case is before a judge there is no problem of articulating a difficult jury instruction. Hartz v. United States, 415 F.2d 259 (5th Cir. 1969).

Where extremely high income is involved, injustice to a defendant from ignoring future taxes might outweigh injustice to a plaintiff from reducing an award of damages to allow for a speculative tax element. McWeeney v. New York, N.H. & H.R.R., 282 F.2d 34 (2d Cir. 1960). There was no proof of extremely high prospective income in the instant case, and even if we were to depart from the majority rule, this does not present an appropriate case to do so.

The enumeration of income tax as an appropriate deduction in the proposed instruction was erroneous. The court is under no obligation to give an instruction which is erroneous in any respect. Adams v. State, 71 Wn.2d 414, 429 F.2d 109 (1967); Robillard v. Selah-Moxee Irr. Dist., 54 Wn.2d 582, 343 P.2d 565 (1959). Inasmuch as instruction No. 8 is dependent on the correctness of instruction No. 9, the court did not err in refusing proposed instruction No. 8.

Appellants’ final assignment of error is directed to the court’s failure to give their proposed instruction No. 10 dealing with discount of the award for future earnings to present cash value. Proposed instruction No. 10 reads as follows:

As to the claim of Lee Hinzman as administratrix of the estate of Lauretta Lee Hinzman, in arriving at any amount for loss of future earnings, you must determine the present cash value of those earnings.

“Present cash value” means the sum of money needed now, which, when added to what the sum may reasonably be expected to earn in the future, will equal the amount of the loss at the time in the future when the earnings would have been received.

The instruction set forth in WPI 34.02, 6 Wash. Prac. 182, based on our holding in Kellerher v. Porter, 29 Wn.2d 650, 189 P.2d 223 (1948), and Wentz v. T.E. Connolly, Inc., 45 Wn.2d 27, 273 P.2d 485 (1954), states:

Damages Arising in the Future— Discount to Present Cash Value

“Present cash value” as used in these instructions means the sum of money needed now, which, when added to what that sum may reasonably be expected to earn in the future, will equal the amount of the loss at the time in the future when [the expenses must be paid] [or] [the earnings would have been received] [or] [the benefits would have been received.]

The rate of interest to be applied by you in making this determination should be that rate which in your judgment is reasonable under all the circumstances taking into consideration the prevailing rates of interest in the area which can reasonably be expected from safe investments which a person of ordinary prudence, but without particular financial experience or skill, can make in this locality.

[Damages for [pain and suffering] [disability] [and] [disfigurement] are not reduced to present cash value.]

Our court in Warner v. McCaughan, 77 Wn.2d 178, 460 P.2d 272 (1969), indicated an award for prospective loss of earnings' should be “ ‘discounted to present worth, and with such other adjustments as the facts may require.’ ”

As requested, instruction No. 10, however, only defined what present cash value was and omitted the second paragraph of WPI 34.02 which would have given the jury a basis upon which to determine that value. The omission of this paragraph from the instruction, and the absence of any evidence providing a guide for the jury, left the jurors with no evidence or guide from which to determine the appropriate rate of interest to apply. This was a fatal omission, the requested instruction was therefore erroneously incomplete, and the court did not err in refusing the instruction.

Even had the instruction been given in full as set forth in WPI 34.02, additional testimony might well have been requested to establish the appropriate mathematical formula to be applied. At the time this testimony was introduced, or at such other time as deemed appropriate by the plaintiff, the plaintiff could also have produced evidence proving to what extent, if any, the reduction of future earnings to present cash value might be offset by a change in the probable reduced value of money at given periods of time in the future. Sadler v. Wagner, 5 Wn. App. 77, 486 P.2d 330 (1971); Pierce v. New York Cent. R.R., 304 F. Supp. 44 (W.D. Mich. 1969).

Judgment affirmed.

Hamilton, C.J., Finley, Rosellini, Hunter, Neill, Stafford, and Wright, JJ., concur.