Richardson v. Carbon Hill Coal Co. , 18 Wash. 368 ( 1897 )

The opinion of the court was delivered by

Dunbar, J.

This case was originally brought by the appellant against the respondent for damages for breaking appellant’s leg’ during his employment by the respondent, and alleging that the injury was caused by the negligence of the respondent, and upon the further ground of the unskillful treatment of his injuries by the company’s physician.

In the trial upon the issues presented the superior court granted a judgment of non-suit in favor of the respondent. From this judgment the appellant appealed to this court and obtained a reversal, the court holding, however, that the evidence was insufficient to go to the jury on the first cause of action for the reason that it affirmatively showed contributory negligence on the part of the plaintiff, and the cause was remanded for a new trial with leave to file new pleadings. See 6 Wash. 52 (32 Pac. 1012). Thereupon, a new complaint was filed and issues joined and a second trial was had in the superior court, resulting in favor of the plaintiff for $10,000. From this decision respondent appealed to this court, and the cause was again reversed (10 Wash. 618, 39 Pac. 95), for the reason that irrelevant testimony showing the rapid rate of speed at which the engine, upon which plaintiff was seated, was driven into the tunnel by defendant’s foreman, the cry of the plaintiff when he was thrown to the ground, and other like matters. This court in its opinion said:

“ All such testimony was clearly irrelevant to the issues which were finally submitted to the jury, and must have been prejudicial to the defendant.”

It was really upon this ground that the cause was reversed. It is true that many other questions were discussed in the opinion, and it is also stated that it was not shown that the company was derelict in the way of being negligent in the selection of a physician, and the followng remarks are introduced in the opinion:

“ In fact it is not even alleged in the complaint that it did not exercise ordinary and reasonable care to select an ordinarily, skillful physician.”

The judgment was reversed without any order as to the future proceedings-in the superior court. The appellant then amended his complaint, setting up the fact that the coal company did not exercise ordinary and reasonable care in the selection of a physician, or an allegation which was this in substance, and all the allegation that could be made under the circumstances of the case bearing upon this proposition. A demurrer was filed by the respondent to this second amended complaint, which demurrer was sustained by the court; the appellant electing to stand on its complaint judgment was entered, and the appellant brings the case here for review.

The respective counsel for the appellant and respondent differ materially as to the ground upon which this demurrer was sustained; but it is immaterial upon what ground it was actually sustained, the material question being, conld it be sustained upon any ground which fell within the scope of the demurrer? As to the first proposition discussed by the respondent, we do not think that this was a separate cause of action, which was barred by the statute of limitations, more than three years having expired between the date the injury was inflicted and the filing of the second amended complaint. The amendment relates to the same transaction and rights which were set up in the prior complaint, and while it is true, that under the ruling of this court it probably became necessary for this new allegation to be made, it was so connected with the original case and was so dependent upon the transactions alleged to have occurred in the original case, that we think it does not fall within the rule governing a new cause of action. Colley v. Gate City Coffin Co., 92 Ga. 664 (18 S. E. 817); Smith v. Palmer, 6 Cush. 513-519; 1 Ency. Pl. & Pr., 564, and cases cited. But it is contended by the respondent that the complaint does not show so much a new cause of action as it does an attempt to retry an old cause of action which has been tried and decided. We do not think, however, that this contention can be sustained. We have carefully examined the opinion filed by this court in the two former trials, and find that in the first case there was no question discussed as to the sufficiency of the pleading. It is true the court said, in its opinion, that the judgment was reversed and the case remanded, with instructions to the lower court to designate a time within which the parties might file new pleadings to retry the cause. The only inference from that opinion and direction would be, considering the discussion of the case, that that portion of the pleading in reference to the injury occurring from the accident should be eliminated, and that the cause should be tried on pleadings involving the s.econd ground of complaint, and, so far as any direction by this court is concerned, an elimination of that portion of the pleadings just mentioned would have met the requirements of the case.

In the next trial, however, the appellant evidently attempted honestly to meet the requirements of this court, but on hearing the question was raised and decided, by this court, that the allegations of the complaint were not sufficient to sustain the only judgment which the appellant was entitled to, viz: damages arising from the want of ordinary ■care in selecting a physician. This is the first time in the history of the case that this question was discussed, and the first time that the attention of the appellant had been called to this condition of the pleadings.

The case was reversed without any special order as to further proceedings, but this does not negative the idea that the pleadings can be amended, or that any other proceedings may be taken in the lower court. The usual course is, when a judgment is reversed, that the case is tried over, in the absence of any order of this court to the contrary. If the judgment below had been against the plaintiff for the reason that his complaint was not sufficient, his case would have ended in the absence of a reversal by this court; but, having obtained judgment below, and that judgment being reversed by this court upon errors occurring at the trial, the reversal is not out of the ordinary channel of reversals, and, upon filing an amended complaint in harmony with the conclusions of this court in relation to the pleadings, we see no reason why the appellant would not be entitled to a trial of his case. If a judgment of non-suit had been obtained by the respondent below, there is no doubt that the appellant could have commenced a new action involving the same cause of action.

It is not infrequent for pleadings to be amended in the lower court several times. It is true it is largely discretionary with the court; it may, or it may not, impose terms, but the fact that the cause came to the appellate court and was reversed does not affect the power of the trial court to give leave to amend the pleading; for, after reversal and remission, the case stands exactly as it stood before the trial. In this case the cause having been reversed for error of the court at the trial, and the court having granted leave to the appellant to file an amended complaint, we think the court had jurisdiction to try the cause,, that the complaint does not state a new cause of action, and that the material matters alleged in the complaint have not before been litigated. It is true that some of the allegations of the complaint are materially as the allegations in the former complaint were, and this must necessarily be; for instance, the allegation of negligent treatment by the physician. Of course, when the liability to procure a good physician is established, it must necessarily be established further, that the physician procured was negligent in the performance of his duties so far as the appellant is concerned, or no damage can be imputed to the company.

The judgment will be reversed and the cause remanded with instructions to the lower court to overrule the demurrer to the complaint.

Scott, O. J., and Anders and Reavis, JJ., concur.