Williams v. Spokane Falls & Northern Railway Co.

On Rehearing.

Mount, C. J.

— On May 22, 1905, we filed an opinion in this case, affirming the judgment rendered by the lower court. See 39 Wash. 77, 80 Pac. 1100, where the facts are stated. In that opinion we said:

■ “In consideration of the fact that the amonnt of the judgment is not called in question, the second, third and fourth assignments of error are immaterial.”

Subsequently, upon petition of appellant for a rehearing, we concluded that the amount of the judgment was called in question, and that we ought to consider the above named assignments, and we therefore granted the petition for a rehearing as to the assignments of error stated. Supplemental briefs were filed, and an argument has been heard, and we come now to consider the case upon those assignments.

The second assignment is to the effect that the court erred iu permitting evidence of the fact that but for the injury respondent’s salary would have been increased. The witness Elwell, who was employed as chief clerk in the United States railway mail service, in the district comprising Spokane and ISTorthport, was examined by the respondent for the purpose of showing the compensation received by postal clerks in the class to which respondent belonged at the time of the injury; also, as to the fact that, beford b'eing assigned to a run, applicants were required to pass the civil service examination. He was then asked the following question:

“Q. How, what salary does he get when he becomes a regular mail clerk ? A. On that run, the run on which he was at the time of the accident, the salary commences at $800 a year for- — let’s see, Mr. Williams would have probably sixty days to serve at the rate of $800 a year. Then, if his examination was satisfactory and if his work was satisfactory, he would then have been promoted to $900 a year. Then he would be put in the $1,000 class.”

The witness was then interrupted and stated that, after each of these periods, another examination was necessary. An objection was then made that the evidence was too* remote. This objection was overruled, and the witness proceeded:

“He would be in the $1,000 class. He would remain in that class until there was a vacancy in the $1,200 class, which is the highest class on the run at the present time.”

Appellant urges that this evidence is purely speculative and conjectural, but we think not. The respondent was working under civil service rules. He had already passed his principal examination and his promotion to the $900 and $1,000 classes was reasonably sure to follow. In fact, after his injury and before his trial, he had been promoted from the $800 to the $900 class, but was unable by reason of his injury to go about his work. This case is unlike those cases where promotion depends upon the will of some individual or is speculative in other respects. It is governed by fixed rules, which being complied with promotion follows of course.

The third assignment is that the court erred in permitting certain cross-examination of Dr. Potter, a witness for appellant. It appears that Dr. Potter had been called by former attorneys for tbe respondent to make examinations of tbe respondent. These examinations were made by Dr. Potter in bis professional capacity. Dr. Potter was not called as a witness for tbe respondent, but be was called for tbe appellant, and testified without objection. He detailed tbe condition in which be' found tbe respondent, and gave bis opinion of tbe results which would follow. On cross-examination counsel for respondent, over appellant’s objection, was permitted to ask questions as follows:

“Q. How, did you ever bear of § 1649, second volume of Hill’s Code, subdivision 4, which reads as follows: . . . A regular physician or surgeon shall not, without tbe consent of bis patient, be examined in a civil action as to any information acquired in attending such patient, which is necessary to enable him to prescribe or act for such patient ? A. I never read tbe statute. Q. Did you ever bear there was such a statute ? A. I have beard tbe matter discussed within tbe last two or three days. Q. Did you not, when you came on tbe witness stand to testify, know that, in your position as surgeon and physician to this boy, you bad no- right to come here and testify to what you found out about him, unless be consented to it ? A. I did not. . . „ Q. Do you consider that it is professional decency, when you are employed by a man, when you are taken into bis secret bed chamber to treat him and find out all you know about him, is it considered decent in your profession to run over and tell it to somebody else who is hostile to that person? ... A. Please repeat that. Q. I say, when you are employed by a sick man to go to bis bedside and attend him, and be gives you every opportunity to get information concerning him., and you do go on and get that information by visit after visit, is it considered. decent in your profession to run over- and tell somebody else who is hostile to him, or who- has interests antagonistic to bis, everything you know about him ? A. It is unethical under the circumstances as stated.”

Other questions along this same line were permitted. Appellant insists that this cross-examination was improper. Tbe respondent, no doubt, waived his privilege when he permitted the doctor to give his testimony without making any objection thereto-. Lissak v. Crocker Estate Co., 119 Cal. 442, 51 Pac. 688; Briesenmeister v. Supreme Lodge K. of P., 81 Mich. 525, 45 N. W. 977; Lincoln v. Detroit, 101 Mich. 245, 59 N. W. 617. But he had a right to discredit the- witness by showing interest or bias in the case^ and legitimate cross-examination was perfectly proper for that purpose-.

A wide latitude is usually, and should be-, given upon cross-examination, the; extent of which must be governed largely by the discretion of the trial court. Such discretion will only be reviewed for abuse thereof. Fleischner v. Beaver, 21 Wash. 6, 56 Pac. 840; State v. Coates, 22 Wash. 601, 61 Pac. 726. While we think the cross-examination complained of as to this witness is very close to- the line of error, because of the apparent unfair inferences which might have been drawn by the jury, yet, by reason of the fact that there were several other reputable doctors who had as good or better opportunities of knowing the condition of respondent as Dr. Potter had, and that these doctors gave substantially the same testimony as Dr. Potter, and against which doctors there was not shown any bias or prejudice, or interest in the case, and for the further reason that the discretion of the trial court should not be reviewed except for abuse, we have concluded that the cause ought not to be reversed on this account.

The fourth assignment is that the court erred in permitting the respondent to testify on rebuttal as follows:

“Q. Herbert, while you were at the hospital, what about the claim agents of the defendant company coming frequently to see you and trying to get a settlement out of you ? . . . A. Well, he came up there quite frequently. I cannot say as to how often. There was one week there he came two- or three times. Mow, I don’t'want to be misunderstood about it. When he first asked me about a settlement— Q. I don’t want you to say anything about what he said. Just the fact of his coming here. A. One week he came three times. Another week two times. He would drop in once in a while to see how I was getting along.’ ’

It is contended that the purpose of this evidence was to show an admission of liability on the part of appellant, and that offers of compromise are inadmissible’. If the purpose was as stated, there cam be no doubt about the inadmissibility of the evidence; but we think this was not the purpose of it under the circumstances of the case. The principal defense of the appellant was that the respondent was in a large measure simulating his injuries. Appellant’s evidence tended to show that respondent was afflicted with what the doctors termed “hysterical paralysis,” and that the pendency of a lawsuit had a strong tendency to prevent improvement in such cases. The evidence above quoted was received by the trial court upon the theory that it had a tendency to rebut the evidence of the physicians by discrediting their statements that respondent was suffering from hysterical paralysis, because, under such circumstances, the attending physicians would not have permitted the claim agent to visit this respondent. We think the evidence was admissible for that purpose, and for that reason only.

Appellant insists upon this rehearing that the verdict is excessive and should be reduced, even if we do not reverse the case. The verdict and judgment in the case was for $33,000. We have gone carefully over all the evidence in the case; and are satisfied that the verdict is largely excessive. It is true, the respondent is a young man of good habits, and that he is severely injured; but there is much doubt in our minds, as there must have been in the minds of the jury, that he is permanently injured. Conceding, however, that he is partially paralyzed, and that he can never walk and never, regain the sight of his left eye, we think that $20,000 is a large measure for his injuries. The respondent in this case was no more severely injured than the respondent in Melse v. Alaska Commercial Co., ante p. 356, 84 Pac. 1127, where we reduced the verdict from $20,000 to $14,000. But respondent in this case is considerably younger and received at the time of his injury about the same amount of wages. Respondent insists that appellant cannot now raise the question of the excessiveness of the verdict, because it was not clearly pointed out in the opening brief. This was one of the grounds for a motion for a new trial, and the opening brief assigns the overruling of the motion as error. This is sufficient to raise the question.

The cause is therefore remanded to the lower court to grant a new trial unless the respondent, within sixty days after the remittitur is filed below, shall remit $13,000 from the judgment. If such sum is remitted within the time named, the judgment will stand affirmed for $20,000, which; shall bear interest from the date of the verdict. Appellant shall recover costs of this appeal.

Hadley, Ceow, and Boot, JJ., concur.