# Wilson v. Lund > Washington Supreme Court · November 27, 1968 · 74 Wash. 2d 945 URL: https://www.frixlaw.com/law-library/cases/9574544 ## Case - **Full name:** Donald Wilson Et Al., Appellants, v. Lee L. Lund Et Al., Respondents - **Court:** Washington Supreme Court - **Decided:** November 27, 1968 - **Citations:** 74 Wash. 2d 945; 447 P.2d 718; 1968 Wash. LEXIS 845 - **Precedential status:** Published - **Opinion:** Concurrence by Hamilton - **Judges:** Hunter, Hamilton, Donworth - **Cited by:** 17 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9574544 ## Opinion text Hamilton, J. (concurring)—I concur with the result reached by the majority opinion in this case. I pause only to point out that the legislature by RCW 4.24.010 seemingly, if not manifestly, intended to create a cause of action springing from the wrongful injury or death of a minor child, for the benefit of both parents of the child, and, this court has indirectly, if not directly, recognized such to be the case. Atkeson v. Jackson Estate, 72 Wash. 233 , 130 Pac. 102 (1913), and Upchurch v. Hubbard, 29 Wn.2d 559 , 188 P.2d 82 (1947). In each of the cited cases, both parents were party plaintiffs, and, although the question of the mother’s status as a party plaintiff was appar *950 ently not raised in either case, this court accepted her participation somewhat as a matter of course and spoke of the right of the “parents” to recover damages. I cannot, therefore, agree with the dissent, which implies, in part at least, that the cause of action is one created for and resting, under normal circumstances, exclusively in the father. Certainly, the language of the statute, couched as it is in somewhat permissive terms, does not dictate such a conclusion, nor does it expressly exclude in the ordinary case the join-der of the mother as a party plaintiff. In short, it simply permits a father, who is alive and has not deserted his family, to maintain the action, without explicitly denying any right in the mother to join in the action as a party plaintiff. This view of the implications of the statute would appear to be further borne out by the case of Dean v. Oregon R. & Nav. Co., 38 Wash. 565 , 80 Pac. 842 (1905), wherein this court partially considered the propriety of the father and mother being named as joint plaintiffs in an action under RCW 4.24.010. In sustaining the trial court’s refusal in that action, over the objection of the defendant, to dismiss the mother until the conclusion of the evidence, this court stated, at 569 of the opinion: Without deciding whether or not husband and wife may jointly maintain an action of this kind, we do not think the trial court committed error in dismissing the wife and permitting the husband to continue the action. It is not perceived that this action of the court in any manner prejudiced the rights of appellant. The spirit of our code permits and requires great liberality in all matters of pleading and practice, to the end that substantial justice may be attained. We think the action of the trial court in this particular was justifiable. ' Certainly, if the telescope of substantial justice and liberality in matters of pleading and practice was perceptive enough in 1905 to permit the joinder of the mother as a party plaintiff, and her retention in that status until the conclusion of the evidence at trial, that perceptiveness has not been so eroded by the passage of time or by the adop *951 tion of our later, and presumably more liberal, rules of practice and procedure, as would preclude the joinder and separate statement of claim of a mother under the circumstances prevailing in the instant case. Furthermore, since the decision in Lockhart v. Besel, 71 Wn.2d 112 , 426 P.2d 605 (1967), permitting recovery for loss of companionship, as well as pecuniary loss, there would appear to be substantially more reason why a mother would and could be a proper or permissible, if not an indispensable or necessary, joint party plaintiff. Against this background, then, it seems to me we are dealing in the instant case more with the procedural and pleading aspects of the basic cause of action erected by RCW 4.24.010 than with truly substantive matters, when we discuss the propriety of Mrs. Wilson being a joint party plaintiff and stating a separate claim for relief. This being so, I perceive no great violence being done to RCW 4.24.010 and the cause of action it gives rise to when the conclusion can be readily reached under modern rules of procedure that a living and available divorced father, who has not otherwise deserted his family, 1 is a necessary party, and the divorced mother is a proper or permissible party, if she wishes to be, with each being authorized to assert his or her respective claims of loss. Clearly, such a procedure avoids the potential of a second suit that might become necessary to apportion any award of damages between the father and the mother. I conclude, as does the majority, that the trial court erred in granting respondents’ motion to dismiss the appellant mother from the action. She is entitled to reinstatement. We held in Clark v. Northern Pac. Ry., 29 Wash. 139 , 69 Pac. 636 (1902) that a divorced mother could institute and maintain the action in her own name where it appeared that the divorced lather had failed to contribute support for the child and had disappeared. Undér these circumstances the father was deemed to have deserted his family within the contemplation of the statute. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9574544. Public record. Not legal advice.