Balandzich v. Demeroto, 1478--I

• Decision Date: 11 March 1974
• Docket Number: No. 1478--I,1478--I
• Citation: 519 P.2d 994,10 Wn.App. 718
• Parties: Sinisa BALANDZICH et al., Appellants, v. Jerome A. DEMEROTO, Respondent.
• Court: Washington Court of Appeals

Page 718

10 Wn.App. 718

519 P.2d 994

Sinisa BALANDZICH et al., Appellants, v. Jerome A. DEMEROTO, Respondent.

No. 1478--I.

Court of Appeals of Washington, Division 1.

March 11, 1974.

Review Denied June 24, 1974.

Rehearing Denied April 25, 1974.

Richard B. Sanders, Seattle, for appellants.

Murray, Dunham & Waitt, Wayne Murray, Seattle, for respondent.

HOROWITZ, Judge.

Plaintiffs appeal a judgment in their favor, for personal injuries and property damage sustained in an automobile accident, limited to the issue of the inadequacy of the damages, and seek a new trial on that issue.

The facts are these. Plaintiffs Balandzich sued defendant Demeroto for personal injuries and property damage sustained in an automobile collision which occurred on June 18, 1966 at the intesection of Third Avenue North and Roy Street in Seattle, Washington. At trial a verdict was directed for plaintiffs on the issue of liability, leaving to the jury the assessment of damages. The jury awarded plaintiffs a total of $1,600. Following the verdict plaintiffs filed a motion for new trial. Judgment was thereafter entered on the verdict. Whether or not the court entered an order denying the motion is not clear; the transcript contains no copy of any such order. Plaintiffs appeal the judgment entered. We find no error and affirm.

Plaintiffs first contend the court erred in denying their motion for continuance under the following circumstances. The case was set for trial and continued on six different occasions. On July 29, 1971, the sixth occasion, continuance was granted because plaintiff wife was in the hospital and unable to attend trial then scheduled for that day. Plaintiffs' then attorney had withdrawn as attorney on July 22, 1971. Plaintiff husband suggested the case be continued to January 12, 1972. The court agreed on the express condition 'Plaintiffs shall have no more continuances for any reason.'

Thereafter, plaintiffs made several unsuccessful attempts to retain another attorney. They retained their present counsel on January 6, 1972. On January 7, 1972 counsel moved for a seventh continuance stating in his affidavit 'at this late date it is physically and humanly impossible for him to properly prepare the case for trial which is set for January 12, 1972.' Defendant's counsel, in his opposing affidavit, stated in part:

(T)he constant shifting of trial dates and alerting (defendant) for trial requesting him to put his affairs in order so that he can be in the Seattle area for three or four days have caused hardship on the defendant and he has indicated that because of this he may lose his present employment.

The court denied the motion for continuance. The motion was renewed at trial and again denied.

Whether a motion for continuance should be granted or denied is a matter discretionary with the trial court, reviewable on appeal for manifest abuse of discretion. Jankelson v. Cisel, 3 Wash.App. 139, 473 P.2d 202 (1970). In exercising its discretion, the court may properly consider the necessity of reasonably prompt disposition of the litigation; the needs of the moving party; the possible prejudice to the adverse party; the prior history of the litigation, including prior continuances granted the moving party; any conditions imposed in the continuances previously granted; and any other matters that have a material bearing upon the exercise of the discretion vested in the court.

In the instant case, the action was commenced in August 1967. Plaintiffs had been represented by various counsel and six continuances had been granted. The sixth continuance was granted on July 29, 1971 to January 12, 1972, a date suggested by plaintiff husband. In granting the continuance, however, the court imposed the condition that 'Plaintiffs shall have no more continuances for any reason.' Viewed against the totality of the circumstances brought to the trial court's attention on plaintiffs' motion for a seventh continuance, we cannot say the court's exercise of discretion was 'upon a ground, or to an extent, clearly untenable or manifestly unreasonable.' Friedlander v. Friedlander, 80 Wash.2d 293, 298, 494 P.2d 208, 211 (1972).

Plaintiffs contend the court erred in refusing their six requested instructions, including WPI 30.18 (previous infirm condition), WPI 30.07 (impairment of earning capacity), and WPI 30.09 (housekeeping expense) set out in the margin. ¹ CAROA 34(9) requires requested instructions be contained in the statement of facts in order to be reviewable. State v. Johnson, 2 Wash.App. 527, 500 P.2d 788 (1972), aff'd, 82 Wash.2d 156, 508 P.2d 1028 (1973). The text of the pattern instructions requested, however, is contained in the exceptions taken by plaintiff which are included in the statement of facts. We treat the text of the exceptions so taken as sufficient compliance with CAROA 34(9). According to the text of the exceptions, each of the foregoing pattern instructions was requested in unedited form without indicating which of the alternative words or phrases enclosed in parentheses was to be used by the court. CR 51(d)(1) requires the pattern instruction be requested

in the form he wishes it read to the jury. If the instruction in WPI allows or provides for a choice of wording by the use of brackets or otherwise, the written requested instruction shall use the choice of wording which is being requested.

A court is not required 'to revise a proposed instruction to make it properly applicable.' State v. Chambers, 81 Wash.2d 929, 933, 506 P.2d 311, 314 (1973). The requested WPI instructions were properly refused. CR 51(d)(1), (e).

Plaintiffs also contend the court erred in refusing their requested instructions WPI 12.04 (multiple causes) and WPI 15.01 (proximate cause). ² These too are found in the exceptions taken included in the statement of facts. These exceptions, however, show the pattern instructions were in the exact and edited form in which plaintiffs requested the court to give them. Assuming the court erred in refusing the requested instructions, plaintiffs were not prejudiced. Whether prejudice exists must be considered in light of all the instructions given. State v. Toliver, 6 Wash.App. 531, 494 P.2d 514 (1972). If, therefore, the substance of the refused instruction is included in the instructions given, the error is not prejudicial. Baxter v. Greyhound Corp., 65 Wash.2d 421, 397 P.2d 857 (1964); Wooldridge v. Pacific Coast Coal Co., 22 Wash.2d 314, 155 P.2d 1001 (1945). Furthermore, if the proponent's theory can be adequately argued under other instructions given, the error is ordinarily not prejudicial. Kiellman v. Richards, 82 Wash.2d 766, 514 P.2d 134 (1973); Laudermilk v. Carpenter, 78 Wash.2d 92, 457 P.2d 1004, 469 P.2d 547 (1969).

Instruction No. 2 includes a paragraph on proximate cause identical with the first paragraph of WPI 15.01 in the form requested by plaintiff. The instruction omits the last sentence of the pattern instruction reading 'There may be one or more proximate causes of an (injury) (event).' Instruction No. 2 refers to the required proximate cause as 'a cause,' not 'the cause' or 'the sole cause.' Had instruction No. 2 used either of the latter phrases, a different question would be presented. See Cleasby v. Taylor, 176 Wash. 251, 28 P.2d 795 (1934). Plaintiffs' counsel was able to argue the theory embodied in his proposed instruction WPI 12.04. With instruction No. 2 in the case, we cannot say the jury were misled to plaintiffs' prejudice. It is unnecessary to consider defendant's further arguments advanced to support the trial court's refusal to instruct the jury as requested.

Plaintiffs contend the court committed prejudicial error in commenting on the evidence in violation of Const. art. 4, § 16, and demeaning plaintiffs' counsel. During the direct testimony of plaintiffs' witness, Dr. Ivan Loughlen, plaintiffs' attorney sought to introduce four x-rays of plaintiff wife, two of which were taken by Dr. Richard McCullough, Dr. Loughlen's associate. These x-rays and Dr McCullough's notes concerning the reading of the x-rays were all contained in the doctor's file on plaintiff wife. Dr. Loughlen testified he did not bring Dr. McCullough's notes to court. Defendant objected to the admission of the two x-rays on the ground the entire file was not before the court. The following coloquy occurred:

MR. MURRAY: Under the business rule statute I gather he is attempting to introduce these, your Honor, the entire business records must be produced. You can't extract.

THE COURT: How long would it take to get your business records from your file here?

MR. SANDERS: Well, his office is up by Cabrini Hospital.

THE COURT: Have someone go up and proceed with these and admit them under those conditions so we don't lose any more time. Get the rest of the file here. Go up and get the entire file. I don't want to try this case but I can't stay here all year.

THE WITNESS: They won't give them to anybody unless I authorize them.

MR. MURRAY: Dr. Loughlen, it is all right with me.

THE COURT: Use the telephone in here and let's get moving. Tell them to deliver them to you so we can get going because that is the rule you have to have the entire file, not what is favorable to you and leave the rest of it out.

MR. SANDERS: Well, I am not implying that. I don't think it is fair to say that in front of the jury.

THE COURT: No, it isn't. I want you to disregard that, but the rule is you've got to have the entire file. He is entitled to have the entire file. When you take part of it out we are losing time.

We do not agree the court's remarks constitute an unlawful comment or that the prejudicial effect, if any, of the court's comments was not sufficiently corrected. The court's remarks were addressed to counsel, stating his reasons and the facts upon which he based them. This is not necessarily an unlawful comment. State v. Weeks, 70 Wash.2d 951, 425 P.2d 885 (1967); State v. Studebaker, 67 Wash.2d...