Finn v. City of Bremerton , 118 Wash. 381 ( 1922 )

Fullerton, J.

— The respondents recovered in this action against the appellant, city of Bremerton, for personal injuries received hy the respondent Anna May Finn from a fall upon the sidewalk of the appellant city. Damages were claimed in the sum of twenty-five thousand dollars. The jury returned a verdict in the sum of five hundred dollars. Judgment was entered for the sum found by the jury, and the appeal is from the judgment so entered.

The errors assigned relate principally to rulings made by the court during the progress of the trial, and these we will notice in the order in which the appellant presents them in its brief.

The evidence of the respondents was by deposition, taken upon notice before a notary public in the state of New York, and it is objected that they were not returned to the trial court in the manner the statute requires. The statute thought to be offended against is found at §1243, Rem. Code (P. C. §7738), and, in so far as it is here material, reads as follows:

“The deposition, whether taken upon notice or upon a commission, shall be inclosed in a sealed envelope, by the officer taking the same, and directed to the clerk of the court, . . . before whom the action is pending, . . . and either delivered to the clerk of the court . . . or transmitted through the mail . . .”

The officer taking the deposition, after it was properly signed and certified, wrapped it in some form of wrapping paper, pasted the edges of the paper together so as to form a sealed enclosure, reinforced it by placing a string around it, addressed the package to the clerk of the court in which the action was pending, and deposited it in the mail. When the package reached the clerk, the covering was somewhat torn perhaps sufficiently to expose in part the paper upon which depositions were written. It is objected that the enclosure is not the “sealed envelope” the statute prescribes. We are, however, of the contrary view. While the term ‘ ‘ envelope ’ ’ may have a technical signification, its more general definition is “that which envelopes; a wrapper; or an enclosing cover;” and it is in this broader sense the term is used in the statute. Within this general meaning, the enclosure here in question was plainly a sealed envelope. The fact that the covering was torn during its transmission through the mail did not prevent the use of the deposition by the party desiring it. This was an accident for which neither party to the action was responsible, and to permit it to work a suppression of the deposition could well amount to a denial of justice. Moreover, in this state a substantial compliance with the statute relating to the taking and returning of depositions is all that is necessary. While in a number of jurisdictions a strict compliance is required, we have said that the first is the better rule. Nasser v. Gaston, 70 Wash. 685, 127 Pac. 470. Clearly, there was here a substantial compliance with the statute.

At the opening of the trial, the appellant moved for an order of the court requiring the injured respondent to appear and submit to a physical examination, touching the nature, character and extent of her injuries. At that time the action had been at issue many months. The depositions of the respondent had been taken, and the appellant had been thereby advised that she would probably not appear in person at the trial. She was not personally present at the time the application was made, and did not subsequently appear personally at the trial. The court denied the motion on the ground that it was not timely made, and it is argued that it erred in so doing. We cannot so conclude. Whether the court will in any case require a plaintiff to submit to a physical examination is largely a matter within its discretion. While it is a discretion capable of abuse, it must be clear that there was such an abuse before an appellate court will so hold. Here, manifestly, there was none. To grant the request would have required a continuance of the trial, even if not its ultimate dismissal, and we have held it not an abuse of discretion to deny such a motion when the effect of granting the motion would only delay the trial. Myrberg v. Baltimore & S.M. & R. Co., 25 Wash. 364, 65 Pac. 539.

The case cited was decided prior to the enactment of the statute on the subject, but the rule in this respect was not changed by the statute. Whether or not a physical examination of the person injured as to the extent of the injury will be ordered is still within the discretion of the court. Rem. Code, § 1230-1 (P. C. §7765) ; Titus v. Montesano, 106 Wash. 608, 181 Pac. 43.

It is next complained that the court erred in refusing the request of the appellant to have the jury view the premises where the injury occurred. But whether a view of the premises will be ordered in any instance is wholly within the discretion of the trial court, and any denial of such a request cannot be made the foundation for a claim of error. Klepsch v. Donald, 4 Wash. 436, 30 Pac. 991, 31 Am. St. 936; McMillen v. Hillman, 66 Wash. 27, 118 Pac. 903; Sedro-Woolley v. Willard, 71 Wash. 646, 129 Pac. 372.

The further assignments of error relate to the exclusion of evidence and are discussed by the appellants under one heading, and we will so consider them. In the cross-examination of the injured respondent, she was questioned as to the clothing and the character of the shoes she wore at the time of her injury. Concerning the clothing, she answered that the only article that she had remaining was the dress-skirt, which she produced; the skirt being marked for identification, and forwarded along with her deposition. As to the shoes, she testified that they had long since been worn out and thrown away. She described the shoes as being “white kid oxfords” with “medium height Cuban heels.” At the trial the appellant produced a shoe dealer and offered to prove by him what a Cuban heel was and to prove further that a shoe with a Cuban heel was a recognized standard shoe, that the heels of such shoes were from two and one-half to three inches in height, and that there were no shoes known to the trade which had heels described as medium height Cuban heels. The court excluded the offered evidence on the grounds that it did not tend to contradict the testimony of the respondent, and that, as independent evidence of contributory negligence, it was not within the issues, there being no allegation in the plea of contributory negligence that the character of the clothing and shoes the injured respondent was wearing was the cause of or in any manner contributed to her injury. The appellant thereupon offered to amend its answer in this respect, which offer the court likewise refused.

We find no error in these rulings. The evidence plainly contradicted nothing to which the witness had testified, and whether an amendment to the pleadings would then he permitted was within the sound discretion of the trial court, and is subject to review only for manifest abuse. Manifestly there was here no abuse of discretion. The amendment would have introduced a new issue, which the respondents were not required prior thereto, and in fact had not made preparation to meet. The evidence was not newly discovered, and the trial was then nearing its close: To have allowed the amendment would have necessitated either a continuance of the cause, or a submission of the question to the jury on the appellant’s evidence alone. Plainly, if the appellant desired to make this a defense it owed the duty under the circumstances shown to have apprised the respondents of the fact before the trial was entered upon. Having failed in that duty, it should not now be heard to complain that a right has been denied it.

The remaining assignments of error go to the sufficiency of the evidence to sustain the verdict. But without reviewing the evidence, we are clear that sufficient was shown to require the submission of the appellant’s liability to the jury. There was, it is true, no proof of permanent injury, but the proofs of temporary injuries was abundantly sufficient to warrant the very modest verdict the jury returned.

The judgment is affirmed.

Parker, C. J., Mitchell, Tolman, and Bridges, JJ., concur.