CLANCY v. HAWKINS, 53 Wn.2d 810 (1959)

337 P.2d 714

ROBERT CLANCY, as Executor, Respondent, v. DONALD HAWKINS, Appellant.[1]

No. 34944.The Supreme Court of Washington. Department Two.
April 2, 1959.

[1] DAMAGES — DEATH — ACTIONS FOR CAUSING — ELEMENTS OF COMPENSATION — EVIDENCE TO ESTABLISH — FUNERAL EXPENSES. In an action for funeral expenses, there must be competent and sufficient evidence of the reasonableness of the charges for the services and things actually rendered.

[2] SAME. In such an action, there was no merit in a contention by the defendant that there must be competent evidence that the charges for the funeral were reasonably incurred with respect to the value of the defendant’s estate, his station in life and matters relating thereto.

[3] APPEAL AND ERROR — BRIEFS — REFERENCES TO RECORD — NECESSITY. No costs were allowed for a respondents brief, which was, in the main, a restatement of the facts, and contained no references to pages of the record in support thereof, as required by Rule on Appeal 42 (5) (b), (6).

[1] See 7 A.L.R. 1309, 26 A.L.R. 599, 94 A.L.R. 438, 163 A.L.R. 260, 3 A.L.R. 2d 934; 16 Am. Jur. 129.

Appeal from a judgment of the superior court for Benton county, No. 15721, Hamilton, J., entered July 11, 1958, upon the verdict of a jury rendered in favor of the plaintiff, in an action for funeral expenses brought by an executor of an estate. Affirmed.

Splawn Bounds, for appellant.

Critchlow Williams, for respondent.

WEAVER, C.J.

The executor of the estate of Fred S. Clancy, deceased, alleged two causes of action in his complaint: the first, for wrongful death; the second, for funeral expenses. The action was commenced on behalf of the adult children of decedent who died as the result of a collision with defendant’s automobile.

The jury returned a verdict for defendant on the first cause of action, and for plaintiff on the second, in the sum of $1,185.

Appellant (defendant) contends

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“. . . that before damages may be awarded for funeral expenses there must be competent evidence upon two points: First, there must be competent and sufficient evidence of the reasonableness of the charges for the services and things actually rendered; and second, there must be competent evidence from which the jury could reasonably determine that such charges were reasonably incurred with respect to the value of the decedent’s estate, his station in life and matters relating thereto.”

[1] We agree with appellant’s first contention. The record discloses that the executor testified the funeral bill was $1,185. This amount included charges for a casket, services at the funeral chapel, services at a church, and shipment of the casket to Ohio for interment in the family plot. A mortician (other than the one handling the funeral) testified that the charges were reasonable. We conclude, as did the trial court, that there was sufficient evidence, although minimum, to submit the issue of reasonableness of the charges to the jury.

In support of his second contention — that there must be competent evidence that the charges were reasonably incurred with respect “to the value of decedent’s estate, his station in life and matters relating thereto” (Italics ours) — appellant cite Home Undertaking Co. v. Joliff, 172 Wn. 78, 19 P.2d 654
(1933); In re Allen’s Estate, 175 Wn. 65, 26 P.2d 396
(1933); and In re Allen’s Estate, 186 Wn. 612, 59 P.2d 360
(1936).

[2] These cases are not apposite; they treat with the allowance of funeral expenses in probate proceedings, wherein payment of these charges from the assets of the estate is given first priority “in such amount as the court shall order.” RCW 11.76.110 (1). The reason for this is obvious. Unless the expenses bear some reasonable relationship to the assets of the estate, other parties having a subsequent interest therein would suffer. This reason has no application to the facts of the instant case. We do not, therefore, agree with appellant’s second contention.

Our conclusion that this judgment must be affirmed is supported by the rationale of this court’s decision in Dean

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v. Oregon R. Nav. Co., 44 Wn. 564, 566, 87 P. 824 (1906), wherein this court said:

“. . . It was the duty of respondent to bury the body of his minor son, and it was but natural and fitting that the remains should be taken back to the old home. Appellant being responsible for decedent’s death, it is holden to pay the reasonable cost of burial and the expenses appropriately incidental thereto. . . .”

See, also, Philby v. Northern Pac. R. Co., 46 Wn. 173, 179, 89 P. 468 (1907).

[3] Respondent’s brief, which is, in the main, a restatement of the facts, contains no “references to the pages of the record in support thereof,” as required by Rule on Appeal 42 (5) (b), (6), RCW, Volume O. No costs are allowed for this brief.

The judgment is affirmed.

HILL, FINLEY, ROSELLINI, and FOSTER, JJ., concur.

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