Dibble v. Seattle Electric Co. ( 1903 )

Mount, J.

This was an action for damages on account of personal injuries. The complaint is in the usual form, claiming damages on account of negligence of the defendant. The answer, after denying the allegations of negligence and damages, sets up (1) contributory negligence on the part of the plaintiff and (2) a 'settlement between the parties and a release hy plaintiff of all claims for damages arising out of the injuries. A reply denied the allegations of the first affirmative defense, and alleged that the release pleaded by defendant was procured through fraud and deceit. Upon the trial, at the close of the testimony on behalf of both parties, the respondent moved the court to withdraw the ease from the jury, and enter judgment in its favor. This motion was granted, and subsequently the following judgment was entered, omitting the formal parts:

“This action coming regularly on for trial on the 7th day of February, 1902, the plaintiff appearing in person and by her attorneys of record, and the defendant appearing by its attorneys, and said trial having been continued from day to day, and on the 17th day of February, 1902, the evidence on behalf of both the parties having been closed, and the parties having rested, and thereupon the defendant having moved the court to withdraw the case from the jury and direct judgment in favor of the defendant; and it appearing to the court that, in respect to the damages for personal injuries claimed by the plaintiff, and in respect to the cause of said injury and as to whether such injury to plaintiff was caused by the negligence of the defendant, there was a conflict in the evidence; and it further appearing to the court that, in respect to the condition and capacity of the plaintiff to enter into settlement of such demand at the time the same was claimed to have been made, and in respect to whether false representations were made by defendant to induce plaintiff to accept $500 as such settlement, there was a conflict in the evidence; and it further appearing to the court by the evidence that, after the commencement of this action and after the filing of the plaintiff’s reply, the the plaintiff had made use of a portion of the money claimed to have been paid her in such settlement, which in the opinion of the court was a ratification of the release, and for that reason it appearing to the court that said cause should be withdrawn from the jury, and judgment directed in favor of the defendant; and thereupon, for said reasons solely, said cause was by order of the court withdrawn from the jury, and judgment directed in favor of the def endant, to all of which plaintiff excepted and her exception was allowed; and the motion of the plaintiff for a new trial having been duly argued and submitted to the court, and on the 7th day of May, 1903, the court, by its order duly made and entered herein, having overruled and denied said motion for the reasons above specified, and upon Said reasons solely, and the plaintiff having excepted to said order and her exceptions having been allowed; now, by reason of the law and the facts, and the court being fully advised in the premises, it is considered, ordered, and adjudged by the court that judgment be and is hereby entered in this cause in favor of the defendant and against the plaintiff, and that this action be and the same hereby is finally dismissed, and that the defendant, the Seattle Electric Company, a corporation, do have and recover of and from the plaintiff, Jennie M. Dibble, its costs and disbursements in this action, to be taxed at $-, and that execution issue therefor. Plaintiff excepts and her exception is allowed. Done in open court this 11th day of May, A. D. 1903.”

Plaintiff appeals from this judgment.

2sTo statement of facts is brought here, and respondent now moves to dismiss the appeal. This motion must be granted. The judgment recites that “after the commencement of the action and after the filing of plaintiff’s reply, the plaintiff had made use of a portion of the money claimed to have been paid her in such settlement, which.in the opinion of the court was a ratification of the release, and for that reason it appearing to the court that said cause should be withdrawn from the jury, and judgment directed in favor of the defendant; and thereupon, for said reasons solely, said cause was by order of the court withdrawn from the jury, and judgment directed in favor of the defendant.” Without the facts which were before the trial court upon this question, this court cannot find that the decision of the trial court was error. The facts upon which this decision was based were apparently not disputed. All presumptions are in favor of tKe judgment. Johnson v. Spokane, 29 Wash. 730, 70 Pac. 122; Pierce v. Fawcett, 31 Wash. 271, 70 Pac. 1011; Schlotfeldt v. Bull, 22 Wash. 362, 60 Pac. 1126.

The motion is therefore sustained, and the judgment is affirmed.

Dullerton, Cl J., and Hadley, Dunbar, and Anders, JJ., concur.