DocketNumber： No. 11941
Judges： Ellis
Filed Date： 1/16/1915
Status： Precedential
Modified Date： 10/19/2024
This is an action for damages, suffered by the plaintiff in attempting to step into an elevator owned and operated by the defendant in its department store. The case is here for the second time on appéal. On the first trial, the plaintiff recovered a judgment for $800. A new trial was granted on the ground that the damages awarded were so inadequate as to show that the jury in reaching the verdict was influenced by passion and prejudice. In the course of the first trial, the defendant moved for a nonsuit, for a directed verdict, and for judgment non obstante. These motions were all overruled. The defendant’s first appeal was from the orders denying all of these motions and from the order granting a new trial. On the first appeal no objection was made to its scope and all of these orders of the trial court were reviewed and the order granting a new trial was affirmed. That affirmance necessarily included an affirmance of the other orders appealed from. This is apparent from the following language found in the opinion on the first appeal:
“The several motions of the defendant for a nonsuit, a directed verdict, and a judgment non obstante, were denied, and the motion of the plaintiff for a new trial on the ground of inadequate damages appearing to have been given under the influence of passion or prejudice was granted. The defendant has appealed.
“It concedes that, if the court was not in error in denying its several motions, the order granting a new trial was not an abuse of discretion. Its contentions are, (1) that it was not guilty of negligence, and (2) that the respondent was guilty of contributory negligence materially contributing to and causing her injury; and hence that it incurred no liability.” Perrault v. Emporium Department Store Co., 71 Wash. 523, 128 Pac. 1049.
Reference is also made to that opinion for a statement of the evidence, to which it is only necessary to add that there was some evidence tending to show that the plaintiff entered the store for a matter of her own convenience and neither
On the second trial, the plaintiff recovered a verdict for $1,500, for which amount and costs judgment was entered. Within the statutory time, the defendant moved for a new trial upon the grounds of insufficiency of the evidence and errors in law. This motion was overruled. From the judgment and from the order denying a new trial the defendant prosecutes this appeal.
The appellant urges a reversal upon three grounds, namely: (1) that the evidence tends to show that the respondent was in the store as a mere licensee and that the court should have given certain requested instructions covering that point; (2) that the court erred in refusing to give a requested instruction as to the duty of the respondent to have minimized her damages by earlier submitting to an operation; (3) that the court failed to instruct that the respondent in no event could recover more than compensatory damages.
We may preface the consideration of these points by calling attention to the following facts which will materially affect their decision:
The pleadings on the second trial were identical with those on the first. The instructions were in substance the same, save a slight difference in the instruction touching the measure of damages, to which we shall presently advert. The evidence was in every material particular the same on the first trial as on the second, save that on the second trial it was
(1) It is clear that the first point cannot be successfully invoked on this appeal. The question whether the respondent was in the store on business as an invitee, or for her own pleasure as a mere licensee, could only be material as bearing upon the extent of the appellant’s duty to avoid causing her any injury while there — that is, as determining the degree of care imposed by law upon the appellant and as bearing upon the degree of care for her own safety incumbent upon the respondent. These were questions necessarily inhering in the determination of the main questions whether the appellant was guilty of any negligence imposing a liability, and whether the respondent was guilty of contributory negligence precluding her recovery, both of which were decided on the first appeal adversely to the appellant. The appellant now complains of the court’s refusal to give a requested instruction to the effect that, if the jury should find from the evidence that the plaintiff entered the store for the sole purpose of her pleasure or convenience and made no purchase of anything for sale therein, then the verdict must be for the defendant, and also of the refusal to give another instruction to the same effect but stated at greater length.
The appellant urges that it was not then seeking a new trial, hence, could not argue errors in the instructions. The situation presented is just this. The appellant was willing to accept the law of the case as given to the jury by the court’s instructions on the first trial, rather than ask for a new trial on the ground of errors now claimed in the law as given. It staked its whole case on the chance of defeating the action m toto on the ground of absence of any negligence or liability on its part, or on the ground of -contributory negligence on the respondent’s part. As shown by the former opinion, it conceded that, if these claims were not well taken, there was no error in granting a new trial on the sole ground of inadequacy of the damages. In effect, it thus, admitted that the only error consisted in not taking the case from the jury on the evidence. The appellant was willing to speculate on the chance of defeating any recovery by the first appeal on the facts alone, and accepted as correct the law of the case as given in the court’s instructions. The law of the case as applied to the same facts, shown by the same evidence, was thus settled for all time. This court has often said that it will not entertain appeals piecemeal. In an unbroken line of decisions we have consistently held that questions determined on appeal, or which might have been determined had they been presented, will not be considered upon a second appeal of the same action. As to such questions the first appeal conclusively settles the law of the case. State v. Boyce, 25 Wash. é22, 65 Pac. 763; Crooker v. Pacific Lownge & Mattress Co., 34 Wash. 191, 75 Pac. 652; Wheeler
(2) A consideration of the second question is even more distinctly foreclosed by the former appeal. The respondent’s motion for a new trial at that time was upon the ground that the damages awarded by the jury were inadequate. Whether the respondent might have minimized the damages, by submitting to an earlier operation, was clearly involved in the question of adequacy of damages there presented. The appellant, by then conceding that there was no abuse of discretion in awarding a new trial on that ground if it was liable for any damages, is estopped to raise the question now upon the same evidence. It is a question which not only could have been, but in all propriety ought to have been raised on the first appeal, if at all. Moreover, an examination of the evidence as adduced at both trials convinces us that, if the appellant is liable at all, a question concluded by the first appeal, the damages awarded are no more than adequate to compensate the respondent for her injuries regardless of any minimization. In fact, it is not seriously contended that the damages awarded are excessive.
(3) What we have already said also disposes of the third question. There being no serious contention that the damages awarded are excessive, in view of the serious character of the injury and the pain and suffering, loss of time and expense to which the respondent was subjected, the technical error in the instruction, in that it failed to advise the jury
The judgment is affirmed.
Fullerton, Mount, Crow, and Main, JJ., concur.