MacIejczak v. Bartell

I dissent.

First: I cannot agree to the construction placed upon Rem. Rev. Stat., § 1211 [P.C. § 7722], with respect to the action for wrongful death. The statute provides:

". . . in an action or proceeding where the adverse party sues or defends as executor, administrator or legal representative of any deceased person, or as deriving right or title by, throughor from any deceased person . . . then a party in interest or to the record, shall not be admitted to testify in his own behalf as to any transaction had by him with . . . any such deceased . . . person. . . ." (Italics mine.)

There is no implication whatsoever in the statute that the ban imposed is effective only in cases in which the estate has a beneficial interest. On the contrary, the phrase I have italicized plainly refutes such an implication. For the right which the administrator is seeking to enforce in the action for wrongful death certainly derives from the estate of the deceasedperson.

In Lund v. Seattle, 163 Wash. 254, 1 P.2d 301, this court said:

"A right of action for wrongful death is an asset sufficient in itself to warrant the appointment of an administrator or an administratrix, as the case may be, although that is the onlyproperty of the decedent within the jurisdiction." (Italics mine.)

Second: The instruction on pain and suffering, quoted in the majority opinion, was, at worst, ambiguous. Read in connection with other instructions on the same subject, it could not have been misleading. For instance, in instruction No. 22, the court advised the jury:

"If the injuries were inflicted by the deceased, himself, without negligence or undue or excessive force on the part of the sheriff's force a verdict should be for the defendants."

And again, in instruction No. 27, the court advised the jury:

"In this case, one of the elements of damages is the pain and suffering incurred by the deceased by reason of the wounds and injuries he received through the acts and neglect of the defendants — that is, the physical and mental pain and suffering caused to the deceased, Thomas Maciejczak, prior to his death. In this case, if you find from the evidence as a fact that the said Maciejczak received such injuries and suffered such pain and suffering, and that such injuries and suffering caused by the fault or neglect of the defendants, or either of them, then you are entitled to assess the damages caused to said Maciejczak, by reason of suffering such injuries, and you will fix and assess such damages in an amount which you find will compensate for such injuries, not, however, in excess of $5,000.00, which is the amount in the complaint."

Third: The answer and the defense were predicated on the theory that Maciejczak was insane; that he "died of acute insanity and the injuries inflicted by himself." The whole purport of the testimony of the traveling guards was that he acted like an insane man from the time they took charge of him at Montesano until they delivered him at Steilacoom. They testified that he was resistive and tried to injure himself. But they did not have to beat him into submission. There is no intimation that he sustained any further injuries while in the custody of the guards.

Conceding the instruction limiting consideration of the guards' testimony to the issue of insanity to be erroneous, I cannot see how, under these facts, it could have prejudiced appellants in any way. I fail to see what bearing the fact that, when the guards took charge of Maciejczak, he still had considerable strength, had upon the issue as to whether he was unmercifully beaten by appellants the night before.

MILLARD, C.J., concurs with BLAKE, J.