DONALD WILSON et al., Appellants, v. LEE L. LUND et al., Respondents.
No. 41442
En Banc.
December 23, 1971
80 Wn.2d 91
Merrick, Burgess & Hofstedt, by F. Ross Burgess and Linda L. Dawson, for respondents.
FINLEY, J.—This is an action for wrongful death of a 5-year-old boy instituted by his father, Donald Wilson, and his mother, Karen Wilson, plaintiffs (appellants), against the defendants (respondents), Lee L. Lund and his wife, doing business as Triple L. Ranch. The crux of this appeal is whether the legislature in amending
The action arose out of a riding mishap at the defendants’ dude ranch on August 5, 1966, which resulted in the death of the Wilson’s son, Kelly. Both parents instituted this action under
In Wilson v. Lund, 74 Wn.2d 945, 447 P.2d 718 (1968), we held that the divorced mother, Karen Wilson, was entitled to bring suit in her own name. The order of the trial court dismissing the mother was reversed and the cause was remanded for further proceedings. We did not there reach the question raised, and the contention advanced by Karen Wilson in support of introducing psychiatric evidence because the order excluding the evidence in that case (without a prior call for an offer of proof or its equivalent) was premature.
Upon remand, the case was tried to a jury. The jury returned a verdict in favor of the plaintiff mother, Karen Wilson, for $12,500, and a verdict in favor of the plaintiff father, Donald Wilson, with no award of damages. The plaintiffs have appealed. Their crucial contention is that the legislature, in amending
Three quarters of a century ago, Mr. Justice Holmes made the sage and significant statement that:
[t]he language of judicial decision is mainly the language of logic. And the logical method and form flatter
that longing for certainty and for repose which is in every human mind. But certainty generally is illusion, and repose is not the destiny of man. Behind the logical form lies a judgment as to the relative worth and importance of competing legislative grounds, often an inarticulate and unconscious judgment, it is true, and yet the very root and nerve of the whole proceeding. You can give any conclusion a logical form.
(Italics ours.) Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 465 (1897). In the appellate briefs and arguments in this case, it seems apparent that the parties have made a conscious choice in emphasizing different and opposing premises, assumptions, or logical forms—which are potentially available to resolve—in either of two different ways—the problem of statutory interpretation presented to us in this appeal. In making a judicial decision in this case, our efforts need not be with less candor and awareness of the facts of life and the nature of the judicial process than revealed by the joint overall efforts of the parties in this appeal. Be this as it may: the crucial language of the 1967 amendment to
damages may be recovered for the loss of love and companionship of the child and for injury to or destruction of the parent-child relationship . . .
(Italics ours.) Respondents, seeking to uphold the judgment of the trial court, contend that the amendment does not provide recovery for mental anguish in cases involving the wrongful death of or injury to a child. They seek solace and support in the following: (1) that denial of recovery for mental anguish is a principle well-entrenched in the judicial decisions of this state in cases of this nature; (2) that few states permit the recovery of damages for mental anguish either under legislative enactments or by judicial decisions; and (3) that existing tort law in this and other areas generally does not allow recovery of damages for mental anguish where “ordinary” negligence is involved.
We are convinced that these arguments involve an uncritical one-sided application of legal logic and without concomitant, careful examination of the underlying assump-
The basic fault with these logical premises and conclusions is that their opposite seems more commonsensical, rational, and convincing. That is, if one assumes that the legislature was fully cognizant of this court’s previous interpretation of
But, the question is not just whether the legislature intended to change the law. The real question is what change
A certain portion of the 1967 amendment initially presents little or no interpretative problem since the term “companionship” as an element of damages has received previous consideration and definition by this court. The measurement of this element has been detailed generally in Lockhart v. Besel, 71 Wn.2d 112, 426 P.2d 605 (1967), and in Clark v. Icicle Irrigation Dist., 72 Wn.2d 201, 432 P.2d 541 (1967). In Clark, this court quoted with approval the definition of companionship stated in Wycko v. Gnodtke, 361 Mich. 331, 339, 105 N.W.2d 118 (1960):
[J]ust as an item of machinery forming part of a functioning industrial plant has a value over and above that of a similar item in a showroom, awaiting purchase, so an individual member of a family has a value to others as part of a functioning social and economic unit. This value is the value of mutual society and protection, in a word, companionship.
Thus, previous decisions of this court construing the word “companionship” in statutory actions for the wrongful death of a child, substantially reduce the potential ambiguity in the statutory language debated in this appeal. But the 1967 amendment to
On the face of the statutory language employed, it is clear that the legislative amendment envisioned or intended that recovery may be granted for several integral, and in our judgment, inseparable, elements of damage; viz., (a) loss of love, (b) loss of companionship, and (c) injury to or destruction of the parent-child relationship. The loss of or injury to a child is an experience involving a complex pattern of human relationships, emotional reactions, and responses. The 1967 amendment evidences recognition of this complex pattern.
To attempt to exclude from this complex pattern of emotional responses the possibility of recovery for parental grief and mental anguish, is to fail, without justification, to
We cannot refuse to give positive meaning to one of the statutory phrases—“parent-child relationship“—merely because it is unique, and the language seems to have no readily ascribable “ordinary meaning.” It is a fact that this language appears neither in statutory provisions of other jurisdictions relating to wrongful death recovery. Nor does the term “loss of love . . . and . . . injury to or destruction of the parent-child relationship” appear in any other statute of this state. However, all of these considerations are of little or no juristic significance. The fact that our legislature uses language which is infrequently or, for that matter, never employed in legislative enactments elsewhere is no reason for this court to refrain from its function and obligation to interpret and apply legislation which has been enacted into law and is actually involved in litigated cases before this appellate court.
We construe the language “loss of love . . . and . . . injury to or destruction of the parent-child relationship” to provide recovery for parental grief, mental anguish and suffering as an element of damages intended by the legislature to be recoverable under appropriate circumstances in cases involving the wrongful death of or injury to a child.
Initially, it may be noted that the instant record contains some indication of legislative history, albeit minimal, surrounding enactment of the 1967 amendment. The following exchange, occurring during legislative deliberation of the amendment, is reported in the Journal of the House of
At the request of Mr. Perry, Mr. Clark (Newman H.) yielded to question.
Mr. Perry:
“If a child was killed as the result of an unfortunate accident, the parents were in modest circumstances, and the mother had a nervous breakdown as a result of the child’s death, do you think it is proper for the person who killed the child to take care of the mother’s expenses?”
Mr. Clark:
“I certainly believe whoever caused the accident, even if negligence existed both ways, should be responsible. The fact that the sympathy is always with the parents who lost the child, however, means there should be some protection both ways.”
Recognizing that legislative history is often illusive at best, the above statement nevertheless provides some indication that the framers of the 1967 amendment to
Beyond this, however, we believe there are more fundamental reasons which compel a conclusion that the amendatory language was intended to expand damage recovery in such cases to include the element of mental suffering.
Judicial decisions regarding the definition and measurement of various elements of damage have often fallen short of producing consistent, rational and definitive standards. The area of tort damages, in particular, has produced myriad conflicting standards for allowing recovery of damages. Much of the confusion is unnecessary and could easily be obviated if legislatures and courts were to adopt and apply a more rational model for evaluating such damages.
Most tort damages involve physical as well as emotional or psychosomatic injury; and, all tort damages may, for analytic purposes, be classified as involving either tangible or intangible injury. Legislative bodies and courts have
We are convinced the indicated rationalization is no longer supportable. First, it may be noted that damages are now awarded, with some regularity, for “intangible-physical” injuries—i.e., injuries, such as those to the spine or nervous system, which defy direct physical observation, but which are, nevertheless, medically recognizable and thus compensable. Allowance of recovery for such “intangible-physical” injuries has followed in the steps of expanded and improved medical expertise regarding diagnosis and treatment of such injuries.
Similarly, there is no longer any substantial justification for denial of recovery for “intangible-emotional” injuries. Modern-day, advanced psychiatric-psychological knowledge discounts former somewhat limited and provincial limitations surrounding proof or disproof of such injuries. And, it should be strongly emphasized that “intangible-emotional” injuries can and do constitute real and significant harms. In Wycko v. Gnodtke, 361 Mich. 331, 340, 105 N.W.2d 118 (1960), the Michigan court noted:
We are . . . restricting the losses to pecuniary losses, . . . not the sorrow and anguish caused by [the child’s] death. This is not because these are not suffered and not because they are unreal. The genius of the common law is capable, were it left alone, of ascer-
taining such damages, but the legislative act creating the remedy forbids.
(Italics ours.)
The 1967 amendment to
We are not justified in assuming that “had the legislature intended to say or specify six—i.e., mental anguish—it would not have used the word half-dozen—i.e., loss of love and injury to or destruction of the parent-child relationship—but would undoubtedly have used the word six—i.e., mental anguish.” Such an assumption is tantamount to judicial usurpation of legislative prerogative; i.e., unless the legislature employs specific words which are “old hat” or clearly known to judges and approved by them as to specific meaning, other and different language used by the legislature will be given no meaning and effect by the courts. In short, unless we were to conclude that the additional language of the 1967 amendment to
When the legislature of this state acts as to matters of
The foregoing describes the role of proper judicial restraint which the court should follow in the instant case. The legislature—in different words, in language of its own choice—has clearly provided that mental anguish and suffering may be an element of damages recoverable in cases involving the death of or injury to a minor child. That this court might disagree, be concerned, or even shocked that this should be the policy of our state law would not justify the failure of this court to recognize and effectuate the legislatively prescribed policy. We could not conclude that recovery for “injury to or destruction of the parent-child relationship” differs from recovery for mental anguish, without applying a totally unrealistic and conceptually indefensible surgical scalpel technique to distinguish or separate damage to the parent-child relationship from emotional damage. To attempt to do so would be to treat this case as if it concerned so many pounds of potatoes, other lowly vegetables, or material substances of some kind—rather than human feelings, responses and emotions.
In this regard, it is, perhaps, helpful to restate an obvious principle: damages for “intangible-emotional” injury—in this case the loss of love and injury to or destruction of the parent-child relationship—are subject to the same limitations imposed upon recovery for “tangible or intangible physical” injury; namely, they must be proved by competent, often expert, proof. Competent psychiatrists are, in our judgment, capable of proving and defending against allegations of emotional damage. At the same time, we would vigorously question the ability of such experts to
It should, perhaps, also be noted that restrictive judicial reaction to the allowance of recovery for mental anguish has often been premised upon the ground that, to allow these damages, would be to open a Pandora’s Box—with resultant runaway jury awards. One inherent weakness of such an argument is that it can be made with respect to any personal injury litigation. Additionally, this argument fails to recognize the existence of an effective counterbalance—namely, excessive personal injury jury awards are subject to supervisory judicial judgment and authority to control runaway jury verdicts. In this state, trial courts are vested with the power to impose reduction of excessive verdicts, or, alternatively, to require plaintiffs to submit to a new trial. We have consistently upheld this power of the trial court. See, e.g., Sherman v. Seattle, 57 Wn.2d 233, 356 P.2d 316 (1960); Lujan v. Santoya, 41 Wn.2d 499, 250 P.2d 543 (1953).
In light of the trial court’s instruction No. 12 in the instant case—which prevented the jury from considering grief, mental anguish or suffering of the parents in arriving at its determination—we remand the case for a new trial on the issue of damages only.
Before concluding, it is perhaps advisable to comment briefly upon one additional contention raised by appellants
For the reasons discussed above, this case must be reversed and remanded for a new trial on the issue of damages only.
It is so ordered.
HAMILTON, C.J., ROSELLINI, HUNTER, NEILL, STAFFORD, and WRIGHT, JJ., concur.
HALE, J., concurs in the result.
WRIGHT, J. (concurring)—This is an action for the death of a child. The facts are set forth in the majority opinion and in an opinion in an earlier appeal of the same case. Wilson v. Lund, 74 Wn.2d 945, 447 P.2d 718 (1968).
Several questions are presented in this appeal. The question herein discussed is the measure of damages, or otherwise stated, the proper interpretation of
The main parts of
A father, or in case of the death or desertion of his family, the mother may maintain an action as plaintiff for the injury or death of a child, and a guardian for the injury or death of his ward.
In 1927 the legislature passed chapter 191 of the Laws of 1927, which read as follows:
SECTION 1. That section 9 of the Code of Washington Territory of 1881, (section 184 of Remington’s Compiled Statutes; section 8264 of Pierce’s 1919 Code) be amended to read as follows:
Section 9. A father, or in case of his death or desertion of his family, the mother may maintain an action as plaintiff for the injury or death of a minor child, or a child on whom either is dependent for support, and the mother for the injury or death of an illegitimate minor child, or an illegitimate child on whom she is dependent for support.
It is, therefore, obvious that for 98 years the statute law of Washington, both as a territory and as a state, had not undergone any change which concerns this problem. The right of action was given, but no measure of damages was fixed. Chapter 191 of the Laws of 1927 became
The extraordinary session of 1967 passed inter alia, chapter 81, which read:
Section 1. Section 9, page 4, Laws of 1869 as last amended by section 1, chapter 191, Laws of 1927 and
RCW 4.24.010 are each amended to read as follows:A father, or in case of his death or desertion of his family, the mother may maintain an action as plaintiff for the injury or death of a minor child, or a child on whom either is dependent for support, and the mother for the injury or death of an illegitimate minor child, or an illegitimate child on whom she is dependent for support.
In such an action, in addition to damages for medical, hospital, medication expenses, and loss of services and support, damages may be recovered for the loss of love and companionship of the child and for injury to or destruction of the parent-child relationship in such amount as, under all the circumstances of the case, may be just.
Usual and accepted rules of statutory construction must be followed. One of the most fundamental of those rules is to give due consideration to the evil sought to be corrected. We said in State v. Stewart, 52 Wash. 61, 64, 100 P. 153 (1909):
It is a familiar canon of the law that, in the construction of a statute, courts will look to the old law, the mischief, and the remedy.
It is well known there was widespread dissatisfaction with the measure of damages for the death of a child.
Loss of services as a measure was universally recognized to be a fiction. Of necessity, it led to lack of uniformity in verdicts, since juries were without any real guidance in fixing damages. For those and many other reasons the use of loss of services as a measure of damages for the death of a child was widely criticized.
With that background, the legislature in 1967 passed the addition to
In such an action, in addition to damages for medical, hospital, medication expenses, and loss of services and support, damages may be recovered for the loss of love and companionship of the child and for injury to or destruction of the parent-child relationship in such amount as, under all the circumstances of the case, may be just.
The legislature acted. It must be presumed the action was for a definite purpose, to change the rule of damages.
Instruction No. 12 contained the following language:
In making your determination, you should not consider any grief, mental anguish or suffering of the parents or the pain and suffering of the child.
The words “or the pain and suffering of the child” are proper since the action is one by the parents for the injury to them by the loss of the child. However, the words “you should not consider any grief, mental anguish or suffering of the parents” limit the measure of damages as set out in the statute. This the trial court may not do.
The language of the statute is clear. The jury is required by the statute to fix the damages, “in such amount as, under all the circumstances of the case, may be just.” The limitation placed upon the jury by the words, “you should not consider any grief, mental anguish or suffering of the parents” is error.
Appellants also assign as error the refusal of the trial court to admit the testimony of a psychiatrist by deposition relative to the effect on the plaintiff mother of the death of the child. The trial court has wide discretion in such matters. Myers v. Harter, 76 Wn.2d 772, 459 P.2d 25 (1969); Weber v. Biddle, 72 Wn.2d 22, 431 P.2d 705 (1967).
The qualifications of expert witnesses are to be passed on by the trial court. It is within the sound discretion of the court and rulings on such matters will not be disturbed except for a manifest abuse of discretion. Czarecki v. Seattle & S. F. Ry. & Nav. Co., 30 Wash. 288, 70 P. 750 (1902).
In White v. Fenner, 16 Wn.2d 226, 244, 133 P.2d 270 (1943), we said:
Whether or not a witness is qualified to testify as an expert upon a particular subject is largely within the discretion of the trial court, and the appellate court will not disturb the ruling of the trial court unless its discretion has manifestly been abused.
(Citations omitted.)
This case should be remanded for a new trial on the issue of damages, with the jury to be instructed in accordance with the requirements of