*1 September 28, 1961.] En Banc. 35267. [No. Appellant, Spokane Administratrix, Etha Orcutt, v. Respondent.* County, (2d) *Reported 1102. in 364 P. *2 Layman Benjamin
Kizer, Gaiser, Stoeve, Powell, & H. Layman, Kizer, appellant. Stoeve, Robert E. and John G. for Cary Cary Del Smith, Del Smith, Jr., and Fo- Thomas S. ley, respondent. for by plaintiff J. This action was commenced
Hunter, (appellant) as the administratrix of the estate of Marion Trickey, damages deceased, to recover for the decedent’s pain suffering hospital expenses and and medical and in- wrongful death, curred to her her death. support plaintiff alleged of these claims, of both pain suffering proximately caused the decedent to become seized an uncontrollable by consuming life, to take her own which she did an over- sleeping pills. dose plaintiff’s (re-
At the close of the the defendant spondent) a motion entered to dismiss the action with grounds prejudice that evidence was insufficient to allegedly accident, show defendant’s negligence, proximately Upon caused the decedent’s death. judgment motion, trial court entered
the basis of this plaintiff ap- prejudice, from with which dismissal peals. County Spokane portion road,
A Road, of thе Wild Rose evening January early late washed out afternoon evening, Later automobile 4, 1956. causing passenger washout,
decedent fell into injuries, particularly the decedent to sustain severe plaintiff was introduced head and face. Evidence allegation support knew or the defendant of her care, known, in the of reasonable should have exercise might danger have and should that this washout occur users the washout or to warn taken to avoid measures danger. accident, of the both of the As a result the road occupants renderеd uncon- automobile were of the they themselves later, extricated scious. Sometime nearby way wreckage residence. their and made hospital de- where it was taken to a The decedent was *3 and of the of the nose suffered fractures termined she had eye, a fracture ribs, fractures of several her left bone under compound right fracture of the blade, a shoulder of the finger ring a concussion brain. hand, her and of left causing partial collapse displaced, a ribs were The fractured necessary lung. open in order to was An reduction her of finger. fractured, mul- also suffered in She her bone set tiple 1956, an June, In upon left scars. her face which cuts portion her nose was a under operation of bone remove a to through adequate passage provide of air required in order to passages. her nasal residing began in Phoe- 1956,the decedent of
In the fall daughter re- She and son-in-law. her Arizona, nix, with part Dur- December, 1956. Spokane in first turned to Spokane, Dr. South- ing sojourn twice consulted in she Thereafter, neuro-psychiatrist. she returned combe, a Phoenix. eight about January, consumed the decedent
In daughter during of her and son- pills sleeping an absence discovered, awak- However, she was house. from the in-law daughter. later, month a About her revived ened and pistol her daughter chair while in a kitchen a found nearby. September, sleeping 1957, about mother was the main death, the decedent entered her month a and took her, locked the door behind house, in the bedroom becoming suspicious, daughter, pistol Her from a closet. a entry eventually bedroom, into the obtained and demanded pistol mother concealed her hаd she discovered where her under skirt. prescription the decedent obtained 11, 1957,
On October pills, thirty-six sleeping been able more than she had drugstore. up picked On them at a before, obtain daughter family planned days Sunday, later, the two accompany day-long trip; the decedent was invited good spirits appeared them, refused. to be but she She daughter family they left. returned when her When they evening, locked. Once the house found to be was gained entry house, discovered the decedent was into unresponsive upon in new under- condition, clad a bed аn garments, nightgown, pair and a a new a nice housecoat hospital slippers. she was She rushed to a where death, the decedent was declared dead. At the time of her forty-seven years investigation In the to determine old. empty pill bottle from which the death, cause in the label had torn was found on a window sill been drapes, glass and a water was bedroom behind some the bed. found under assignment plaintiff error,
In the first contends the granting trial court erred the defendant’s motion to wrongful ground death, dismiss the action for on the that, law, a as matter there was insufficiеnt evidence to raise *4 jury question as to the decedent’s whether suicide was neglect by any wrongful or act, caused default of the de- (The sufficiency fendant. evidence as to whether proximately by negli- automobile accident was gence part on the of the is not raised in defendant this appeal.) making applied
The
in
such
rule
a determina-
by
tion was stated
in
opinion
court
the exhaustive
Top
v. Red
Arsnow
Cab Co.,
159 Wash.
part person, of a situated as is here, defendant person injured death of thе results from his own act com- frenzy, mitted in delirium or and without consciousness appreciation part or on his will, the fact that such act probability, all reasonable result in his death, or when the causing act the death is the result uncontrollable im- pulse, resulting by a mental condition caused in- juries. (Italics ours.) ...” severely injured the Arsnow the decedent was by operated a taxicab owned and the defendant. There- after, the decedent committed suicide. The administratrix brought pain of his suffering estate an action for his wrongful death, to his for his death. evidence disclosed that the decedent had often threatened to shoot morning himself after the accident. On the of the de- placed pistol death, cedent’s his wife had under the pillow keeping bed, on his where he it, had been while sitting the decedent was in a chair at foot of the bed. sleeping While she was the decedent from his chair, arose proceeded pistol of the bed, head took the from be- pillow, safety pressed catch, neath the released the muzzle pistol pulled trigger. to his head and We held these facts were insufficient to establish the decеdent’s resulting death was caused from the defend- wrongful ant’s acts.
The rule in the Arsnow stated case was still is correct. conformity expressed Furthermore, it in with the rule as by many weight writers, text and it reflects of case Although jurisdictions. law other this rule has been ways, underlying meaning. it has the stated various same (1934), § Torts, The Restatement of the Law of ex- presses the rule to be as follows: negligent brings conduct so “If the actor’s about de- insanity of another as to make the lirium actor liable liable for harm it, the actor is also done the other
851 or if his delirium insane, delirious or himself while insanity realizing “(a) prevents of his act from the nature him certainty therein, or risk of harm involved or impulse “(b) impossible for him to resist an it makes insanity deprives capacity him of his which his govern with reason. conduct accordance his is so standing applies [66] “Comment “b. Clause doing extreme as to to acts or, its inevitable if he understands what he on Clause (a) done prevent is applicable when the other’s during or (a): him from probable delirium. understanding consequences. is doing, from under- insanity what It also he is
“Comment “c. This [66] Clause on Clause applies (b): where other’s insanity does capacity deрrive him to realize nature or of his not forming purpose consequence to kill act or from of his selecting appropriate means harm to himself and or cause to insane purpose, accomplish act is done his but his under insanity is irresistible because his has which controlling prevented It, there- his actions. his reason they if under insane delusions are fore, acts done includes strong preclude sufficiently resistance such reason as laboring person insanity them. to the under leaves his [66]
“Comment: negli- hand,
“d. the other the subjects On fact actor’s gence harm to another whiсh him to re- causes of extreme attacks melancholia does make current other which actor for death or harm the other de- liable during liberately upon himself inflicts lucid interval life because of his an effort to terminate his dread of increasingly frequent recurrence of these attacks.” discussing proximate causation, Dean Prosser states: difficulty injured “Some arisen cases where has Although person commits there insane and suicide. becomes contrary, it seems better view that when to the are cases realizing insanity prevents him from nature оf his his controlling regarded conduct, his suicide or act either as intervening no all, result and force at a direct risk, for which the defendant incident of or as normal if is the same as he The situation should be liable. will during brought unconsciousness delirium hurt himself injury. during But if the suicide a lucid inter- val, when he inis full command of his life faculties but his agreed become has unendurable to it him, that his vol- untary thing, supersedes choice is an abnormal (Italics liability.” ours.) § defendant’s Prosser, Torts (2d 1955). ed. *6 recently, Quite applied a California court reviewed and (2d) this rule in Tate App. v. Canonica, 180 898, Cal. 5 Rptr. (1960), stating Cal. 28 impression this is “As a case of first in California we agree ap- with the New York court that the more realistic proach problem adopt to the is to the before mentioned namely, negligent wrong only
rule, that where the causes injured person a mental condition in which the is able to power realize the nature of the act of suicide and has the it to control if he desires, so the act then becomes an inde- pendent intervening wrongdoer force and the cannot be negli- held liable for the death. hand, On the other if the gent wrong mental causes un- illness which in an results wrоngdoer suicide, controllable to commit then the speak be held liable the death. Some cases for ‘insanity/ frenzy,’ ‘delirium or and take the view doing, that the knew decedent what he the suicide if independent intervening light is an cause. in think, We the knowledge modern to mental illness, that view is any narrow. It should not make too that difference doing’. decedent ‘knew what he was to If defendant liability, voluntary, avoid decedent’s act be must not spite in that but in the sense sense that he in could, his against mental illness, have decided suicide and refrained (Italics killing ours.) from himself.” difficulty considering in encountered Ar- authority disposition snow case as for of the instant applied case, however, is the manner in which we the rule applying appears that rule, to the facts of case. it application respect in the we restricted its in all cases act, knows the nature where the decedent of his or where reasoning carrying the use of actions indicate in his out resulting death, in suicide will be acts considered intervening independent cause, for which the defendant opinion ap be are of the will not liable. We that such an although proрer plication rule, Arsnow
853 testimony medical proper there in a case where is not mental injury the decedent sustained impulse to in an uncontrollable resulted condition not could that the decedent suicide, in sense commit killing against himself, from refrained decided have impulse, the decedent such and because suicide. committed re in which held that in actions often
haveWe
allegedly resulting
covery
sought
physical
conditions
wrongful
defendant,
act of the
inflicted
produce
plaintiff
establish,
with rea
evidence
must
injury
certainty,
relationship
betweеn
a causal
sonable
jury
subsequent
condition,
that the
will
so
and the
conjecture
upon
indulging
passing
speculation
Chicago,
Co.,
Paul R.
Anton
Milwaukee & St.
v.
this issue.
(1916);
Co.,
Lee v. H. E. Gleason
305, 159Pac. 115
92 Wash.
(1927);
Moore,
Hessler v.
nation, procedure? the examination and A Well, neurological the results examination me indicated to patient damage that the had received some her nervous system, as indicated disorder sensations her face. peculiar . . . She a had sensation about the face which dysthesia. we call She had a definite sensation, decrease in hypesthesia, face, in her she had a fracture serious my opinion nose, and her face was scarred. It was that this organic damage system, woman hаd to the nervous post syndrome. I considered to be concussion I ... types injuries, think she suffered two I think she suffered damage peripheral damage, nerve face, due to the fracture, and because of the obvious evidence of rather face, scars, violent trauma and the existence bearing complaints, fractures, her that has irritability, my opinion her headaches, dizziness, and it syndrome. post Q. concussion that she had What is a syndrome, post generally doctor? What concussion meaning post A a Well, of that term? understood sion concus- syndrome application a condition which follows by subjective It of violence to the head. characterized symptoms vertigo, dizziness, dizziness, headache, and, *8 severity depending factors, of on the the other the mani- Q more . Dr. dramatic. . . South- festation bearing type injuries combe, in mind the of Mrs. that Trickey accident, from this automobile received in the bones the front of the face, the and to was to it nose injuries, your opinion that, a result of the that there contemplation damage think, A I in to brain? of was resulting symptoms, injuries, the that of the the extent damage.” very probаble that there was brain it was propounded question hypothetical point, was this At including the case there- the facts of all Southcombe, Dr. in the witness evidence, which into tofore submitted relationship opinion be- was as to the then asked what acci- and the automobile of the decedent tween the suicide response His was, dent. my predicated opinion, Mrs. on I learned from “It is what you presented
Trickey, that them, facts as have and the link of chain, the final link in a the first the suicide was which was Trickey. . . suffered Mrs. . accident things my opinion It can that one of the most that serious applied happen an trauma to the head. individual is Particularly of the skull. In a situation without fracture sufficiently nose, to break the where the trauma is severe maxillary produce im- bone, lacerations, and fracture the mediately period unconsciousness, in a it is that result damage very my opinion, probable, in done that has been particularly brain, lobes, the frontal to the because as against stopped stops it, whatever obstacle the brain the goes rough against up skull, of the if interior there depending damage brain, the сortex of the on done to degree very it involved, force results one real personality change. is the hazard of a hazard, and that personality the site of the areas in are frontal lobes my opinion, coupled fact, in That human individual. the realization with scarred, would be that that she she had con- difficulty physi- the sensation her face, with siderable teeth; those factors cal combined and sensations preexisted indicated, I disorder, think, a mental grains gesture of seconal on one with occa- suicidal attempt revolver with the on two sion, occa- the suicidal finally individual sions, combination overwhelmed resulted in factors which ultimate damage, psychologi- This brain herself. this destruction resulting injury in an emotional disorder, cal reaction to overwhelming culminating in an force that she cannot force, an uncontrollable control; it is uncontrollable me, the suicide. To suicide that leads is the link events in order.” series last cross-examination, Dr. Southcombe was asked his On impulse.” replied, term, “uncontrollable He definition impulse, arising would be a force “An person person, violence that such could within *9 856 you say Q
control that person force. . . . acting Would impulse, exercising any uncontrollable is not voli- you tion, is that say person what mean? A INo, would acting impulse under an exercising uncontrollable is not you Q their . will. . . Do think act which Mrs. Trickey apparently performed, was the result of a sudden impulse, long standing, by depression or was it of caused despondency? and IA think the suicide was the immediate impulse uncontrolled, result this drive, which, in turn, was the result of a disordered state, mental things, which, in turn, was due to two one—and to me very important very probable injury is lobes to the frontal —a of her . . A I brain. . think she understood what doing. she was You asked me whether she knew what doing? My yes, she is, answer did, she but she couldn’t resist it.” foregoing testimony of Dr. Southcombe con
stitutes substantive evidence the record that the dece impulse, death dent’s was the result of an uncontrollable which was caused sustained in the accident. Giving all this evidence inferences most favorable to the plaintiff, jury justified concluding, would be with resorting speculation conjecture, out and that the dece pursuant dent took life own an uncontrollable impulse insanity, by injuries in a while state of in the accident. sustained support application for such an
Further rule is compensation in the workmen’s found cases decided in Arsnow case. In the this state since latest workmen’s compensation case which the workman had committed Department suicide, Labor Industries, Karlen v. & 41 (2d) (1952) (2d) 301, held, 249P. 364 Wn. we “ injured pur- workman . if an takes his . . own life or uncontrollable an irresistible so do, suant to pension. Depart- to a is entitled Gatterdam widow v. (2d) Industries, & Wash. ment Labor 56 P. 693; Department Labor & Industries, v. McFarland 188Wash. (2d) 714.” 357, P.62 witnesses testified as Karlen several to what
In the concerning they the attitude and conduct of the observed injured compared hе with after was conditions decedent existing. They in- to his stated theretofore fishing enjoyed pleasant jovial person, juries he awas gardening hunting in his and was interested *10 happy, he had a carefree home; of his that beautification disposition depressed appeared morose; or never to and shortly life accident, his on seemed that after his outlook moody change morose; that he to and he and became again spoke despaired being of ever able to work and he frequently dying friends to come to of and even invited Furthermorе, his funeral. testimony person “There medical to the effect that a was feelings manic-depressive psychosis had
afflicted with efficiency, depression, inability carry on, out- to and loss wardly presented dejection picture of and somewhat a gave opinion experts their slowed down activities. Medical capable that, life, form- decedent took his he was when ing tary act do, a intent and that his volun- deliberate so was by any impulse. rather than induced irresistible Other impelled opinion by an ir- medical that act was was impulse an deliberate inten- resistible rather than act of (Italics ours.) tion.” held, We “ . that there . . an examination of the record from jury give
was evidence from which the could sufficient interrogatory propounded negative a to the the answer to that the decedent’s death resulted from deliberate effect voluntary the life; also that instruc- intent take his own guide.” given by tions the a correct court furnished applying the are well-established We satisfied that rule facts of instant in the Arsnow case stated holding there insufficient the trial court erred in jury on the issue for the to be to the evidence сase sent was the result of of whether not the decedent’s death insane, caused while accident. she in the automobile sustained assignment plaintiff, made The final of error dismissing the cause of action trial erred in court hospital expenses pain suffering and for medical In the event death, incurred to her is well taken. jury negligent acts of defendant should find personal representative caused death, decedent’s damages alleged would be entitled recover to have been sustained in the second cause action under RCW 4.20.060. judgment
The of the trial is rеversed, court and the case is remanded trial new on all issues. appeal
The costs this shall abide the final determina- tion of the case. and Foster, JJ., concur.
Rosellini (concurring) agree analysis Finley, C. J. with the —I problem disposition appeal involved opinion. majority set as out in Whether defendant’s negligence proximately state of mind or an ir- impulse resulting ques- resistable in decedent’s is a suicide tion which should be of fact. determined trier dissenting opinion characterizes decedent’s act voluntary, since it was done in a state of delirium *11 frenzy. preсisely or A statement that “she knew what she doing was and what the effect of act is fol- would be” lowed a conclusion that her were controlled. actions expressed Then a conclusion is that because her act was voluntary the initial cause of the decedent’s ceased proximate be the cause of her death.
I do not know done whether act an individual not frenzy ain state of delirium or is controllable or not in theory. psychiatric medical I have doubt whether the terms precise legal meaning. a or, medical matter, any employеd event, the in the dissent characterizations anything. testimony do not solve of the medical ex- pert, quoted majority opinion, in that the dece- doing, dent knew what she was “but she couldn’t resist it.” Top (1930), The rule of Arsnow Red Cab v. Co. 159 Wash. liability (1) imposes 137, 292 Pac. when “the death person injured of the results from his own act committed frenzy, appre- in delirium or and without consciousness or part ciation on his the fact that act in all will, of such probability, (2) reasonable result death,” in his or “when causing the act the death is the result of an uncontrollable impulse, resulting from mental condition inеscapable utterly injuries.” the tes- me It seems to timony expert plaintiff’s puts case the medical of squarely portion rule, of the Arsnow within second frenzy. irrespective or of the matter of delirium dispute the I cannot that the intends to believe dissent accuracy expert the conclusions of an whose observa- study tempered by prolonged specialized are tions nothing in record discredit the research. There is Opinion expert’s qualifications. opinion or evidence is his present procedural Because substantive evidence. give posture all infer- this must this evidence we plaintiff. cannot, there- ences most favorable to the We say expert’s opinion fore, does that as matter of law thought, from a of medical emanate reliable school ignore and we cannot it. although
It it is written in dissent, to me that the seems policy proximate rule that cause, terms enunciates liability for the rea- the defendant should relieved of negligence may son that other causes than defendant’s significant important played a have been more more occasioning tragic accеpt I role event. cannot approach, problem are not we faced with the because reviewing plaintiff’s case. the merits of Our function is plaintiff presented if the evi- determine substantive any dence material The defendant introduce issue. controverting expert psychiatric chal- medical evidence validity reliability testimony lenging qualifications may expert, plaintiff’s be contro- *12 any defense fact, verted. In defendant utilize avail- things at the court must be done trial level. able; but these testimony plaintiff produced to effect that The by produced mental the decedent a suffered state incapable controlling rendering decedent im- pulse This sufficient to suicide. was withstand commit majority opinion in the dismiss. I concur and a motion to a trial. remand case for new would Finley, C. J. J., concurs with Weaver, January (dissenting) October, J. Mallery, —From 1957, repeated by the decedent others in was frustrated attempts She then what to her seemed at suicide. achieved use of desirable result the deliberate understood challenged. Instead, means. The cause of death is not majority opinion holds that cause cause proximate cause, i.e., her cause of mental state is proximate agree cause of her death. I that a cause con- proximate tinues to-be a cause of of the effects which all directly produced by exclusively are ing it. Notwithstand- proximate
this, a cause ceases be a when an cause independent and efficient cause intervenes it between question. the effect in
Our concern in this case is with the nature of interven- ing independent agree they can causes. I are not the changes aspect prоduce mere which mechanical forces processes. interposition in the course of natural independent, voluntary understanding an human agency, process without which set motion initial cause would have ended to or without question, effect breaks the chain of causation and makes the initial is, course, cause remote. This not the case deprives where the initial cause the mind of volition and understanding processes. of natural A human act then is more process no than a mechanical continuation of the set in motion the initial cаuse. Thus, the cause of mental proximate state delirium is the cause of what the deliri- person unwittingly produced ous does. The cause which frenzy an uncontrollable the same reason the cause effects thereof. Top This is the rule of Arsnow v. Red Co., Cab 159 Wash. precisely point 436, 292 Pac. and which majority opinion overrules sub silentio. The decedent precisely not was delirious. doing She knew what she was and what the effect of be, her act would neither did she frenzy. act in Under these circumstances, knowing and intentional act the mechanical process logically continuation of such a natural as to be attributable the defendants. *13 basing majority opinion, on uncontrol- its result
lability, the decedent did hold either that seems to intending knowingly and, without want to commit suicide result, an uncontrollable surrendered to achieve that theory pills, thirty-six sleeping which to take the factually following course, untenable, that in pursuant think acted to an unwise, we every Insanity make unwise does not election of conduct. contrary a end On desired human act uncontrollable. specifically an act that controlled for is achieved every purpose. Otherwise, act uncontrol- unwise majority opinion. purview the lable within I dissent. JJ., concur with J. Ott, Mallery, Donworth,
Hill, rehearing 1961. Petition denied. December