Gray v. Davidson , 15 Wash. 2d 257 ( 1942 )

I think that the order granting a new trial should be affirmed solely upon the ground that appellant's assignments of error cannot be considered, inasmuch as he has failed to comply with certain requirements of Rule XVI(5), Rules of the Supreme Court,193 Wash. 25-a, relating to briefs and reading as follows:

"Each error relied on shall be clearly pointed out and separately discussed under appropriate designated headings. Where there are several assignments presenting the same general questions, they may be discussed together. Where an objection isbased on an instruction of the court, the instruction shall beset forth in the brief in full." (Italics mine.)

The sentence which has been italicized above is the pertinent provision here.

In a long line of cases, the rule in question has been consistently followed and rigidly enforced by this court. As stated in one of our more recent cases, Walker v. Copeland,193 Wash. 1, 74 P.2d 469,

"This rule must be observed, as a respondent, in preparing his answering brief, must either rely upon the rule or treat it as a dead letter. The rule is reasonable and should be enforced."

This rule has been applied where the objections are based onrequested instructions, as well as where based on given instructions. State v. Hussey, 188 Wash. 454, 62 P.2d 1350. We have also held that the failure to print the instructions in appellant's opening brief is not cured by setting them forth in appellant's reply brief (Walker v. Copeland, supra; Moffitt v.Goldcamp, 195 Wash. 75, 79 P.2d 695), or in a supplemental document filed by the appellant (State v. Domanski, 9 Wash. 2d 519, 115 P.2d 729), or even if they appear in the respondent'sanswering brief (State v. Jensen, 194 Wash. 515,78 P.2d 600; Moffitt v. Goldcamp, supra); nor is the appellant's failure in that respect cured by the respondent's failure to raise the point (State v. Hussey, supra; Moffitt v. Goldcamp,supra). In virtually all of the cases where the rule was enforced, the instructions were in fact brought to this court either in the transcript or else in the statement of facts, and yet we held that, since they were not set forth in appellant'sopening brief, we would not consider any assignments of error based thereon.

The rule was purposely adopted to facilitate the work of this court, by requiring the appellant to set forth in full, in his opening brief, any and every instruction, whether given or merely requested, necessary to be considered in disposing of the questions raised on the appeal, so that the judges hearing the argument might beforehand ascertain directly from appellant's opening brief the legal issues involved, without having to search out that information by recourse to the records in the clerk's office.

It is true that, in this case, appellant does not assign error upon the giving of any particular instruction or upon therefusal to give a certain requested instruction, but, rather, assigns error on the part of the trial court in granting a new trial because of having given certain instructions and havingrefused to give a particular requested instruction. However, the questions raised herein by the appellant involve the very instructions which were given or else requested, and in order to determine the validity of appellant's assignments of error recourse must be had to the transcript in order to find and consider those instructions. And that is exactly what the writer of the majority opinion and those concurring with him had to do, for it is manifest that the order of the trial court, quoted in the majority opinion, does not in itself disclose the content of the instructions nor reveal wherein they are erroneous. The assignments of error are therefore "based on the instruction of the court," that is to say, the instructions given or refused by the court lie at the very basis of appellant's assignments of error.

I am of the opinion that the intendment of the rule is, and the interpretation placed upon it should be, that whenever an assignment of error turns upon the correctness or propriety of an instruction or requested instruction, the appellant must set forth that instruction or requested instruction in full, in his opening brief, regardless of whether he is attacking or defending the action of the trial court with reference thereto. If that conclusion were adopted in this instance, the integrity of the rule would be preserved; nor would the appellant, in the end, have suffered any disadvantage under the circumstances, for at the most he would be required to submit to a new trial, and that is precisely the result achieved in the majority opinion wherein the order of the superior court granting a new trial is affirmed.

Since, however, the majority have reached a different conclusion with reference to the matter just discussed, I shall accept that as the basis from which to proceed and shall consider the case from the standpoint of its merits.

The majority opinion recognizes it to be the rule that, where a physician is employed to attend a patient, the relation of physician and patient continues until ended by the consent of the parties, or revoked by the dismissal of the physician, or until his services are no longer needed, and, further, that, where the physician terminates his employment without due notice to his patient and without affording the latter an ample opportunity to secure other medical attendance, the physician is liable for any damage caused thereby.

The majority opinion then concedes that, under the evidence in this case, the jury could have found that respondent had abandoned appellant without sufficient justification. It further concedes that appellant became mentally perturbed because of respondent's refusal to visit him. The majority opinion then holds, however, that there is no evidence in the record, nor any basis for a reasonable inference, of any causal connection between respondent's failure to further treat appellant and the suffering which the latter endured thereafter. I cannot subscribe to that holding. I think that the evidence and the reasonable inferences to be drawn therefrom do establish a prima facie case of causal connection.

Appellant was affected with a severe infection of his right thumb. He came to Seattle and placed himself under the care of the only physician whom he knew in that city. He was attended by that physician for a period of ten days. His condition became progressively worse. On the evening of the tenth day, the infection in his hand and arm became extremely painful. From five o'clock until 9:30 o'clock p.m. his wife endeavored to communicate with respondent, but was unsuccessful. Because of appellant's intense pain, the landlady of the hotel where appellant and his wife were staying called another physician, who agreed to send over a drug to deaden the pain. At ten o'clock appellant's wife succeeded in reaching respondent by telephone and requested him to visit her husband. In that conversation, respondent inquired whether appellant was employed and, on being told that he was not, stated that he would be unable to attend appellant any further, although he advised that appellant be taken to a hospital. The other physician, who was not asurgeon, was then summoned and, after administering an hypodermic injection to appellant, he ordered that the patient be at once removed to a hospital. Appellant's temperature had reached 101 degrees. On the next day, that physician called in conference a surgeon, who found that appellant was suffering from a spreading infection. Two days thereafter that surgeon performed the first of a series of operations. Six weeks later began a series of amputations, finally resulting in the loss of the greater part of appellant's arm.

While the respondent gave a somewhat different version of his conversation with appellant's wife, the jury was entitled to resolve the facts as above stated. In my opinion, the appellant undoubtedly suffered much mental anguish induced by the fact that he had been abandoned in his extremity by the physician in whom he had placed full confidence. Moreover, while his pain was temporarily deadened by the hypodermic injection, that did not arrest the infection. Had the respondent attended the patient as he should have done, he would no doubt have performed the operation immediately upon arriving at the hospital. Whether the subsequent operation by the second surgeon was delayed for a period of two days because of the effect of the previous hypodermic injection or because that surgeon was otherwise engaged, I do not know. But the facts as hereinbefore stated and the reasonable inferences therefrom, in my opinion, presented a case for the jury, on the questions of negligence and damage. It must be remembered that this is not a case wherein the appellant is seeking damages merely for mental pain and suffering, but damages for negligence in the original treatment augmented by mental and physical pain suffered by reason of the wrongful refusal to give further treatment.

The case of Ricks v. Budge, 91 Utah 307, 64 P.2d 208, cited in the majority opinion, presented a situation similar to the one here. Touching the point now under consideration, the supreme court of Utah said:

"We cannot say as a matter of law that plaintiff suffered no damages by reason of the refusal of Dr. S.M. Budge to further treat him. The evidence shows that from the time plaintiff left the office of the defendants up until the time that he arrived at the Cache Valley Hospital [a few blocks away] his hand continued to swell; that it was very painful; that when he left the Budge Memorial Hospital he was in such condition that he did not know whether he was going to live or die. That both his mental and physical suffering must have been most acute cannot be questioned. While the law cannot measure with exactness such suffering and cannot determine with absolute certainty what damages, if any, plaintiff may be entitled to, still those are questions which a jury under proper instructions from the court must determine."

It may be that the plaintiff in that case suffered greater physical pain and mental anguish than did the appellant here, but that would be simply a matter of degree, affecting only theamount of damages recoverable.

The majority opinion distinguishes that case from this one by saying that there the physician admitted that, at the time of the abandonment of the plaintiff, the latter was in a dangerous condition and in dire need of immediate attention. But whether the physician admitted or denied the dangerous condition of his patient, the ultimate question was, in either event, one of fact to be determined by the jury. It was for the jury to say, from all the evidence, whether or not the appellant here was in a dangerous condition. Subsequent events rather prove that he was. Moreover, in the case at bar, the respondent not only knew that appellant's condition was serious, but actually advised that appellant be taken to the hospital. His only reason for not attending the patient, according to appellant's evidence, was that appellant was not then employed.

I think the questions of causal connection and damages cannot be decided as a matter of law, but that, under the evidence and the reasonable inferences that were capable of being drawn therefrom, those were questions for the jury to determine, under proper instructions from the court. To the extent herein noted, I dissent from the opinion of the majority.

SIMPSON and JEFFERS, JJ. concur with STEINERT, J.