Cranford v. O'Shea

• Decision Date: 15 August 1913
• Citation: 134 P. 486,75 Wash. 33
• Court: Washington Supreme Court
• Parties: CRANFORD v. O'SHEA.

134 P. 486

75 Wash. 33

CRANFORD v. O'SHEA.

Supreme Court of Washington

August 15, 1913

Department 2. Appeal from Superior Court, Spokane County.

An action for malpractice by Clara E. Cranford against John H O'Shea. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Lloyd E. Gandy and Graves, Kizer & Graves, all of Spokane, for appellant.

Attwood A. Kirby and H. M. Stephens, both of Spokane, for respondent.

ELLIS J.

Action against a surgeon to recover damages for alleged malpractice in the treatment of a broken leg. The jury returned a verdict for plaintiff in the sum of $5,000. Judgment was entered thereon, and the defendant has appealed.

Since none of the assignments of error are predicated thereon, we find it unnecessary to review the evidence. The errors claimed relate to the giving of an instruction, the refusal to give another, and to the denial of a new trial on these grounds and because of alleged misconduct of respondent's counsel.

1. It is first claimed that the court erred in instructing the jury as follows: 'If the defendant, at any stage of the treatment of the plaintiff, or at any time during his employment, failed to do what physicians and surgeons usually and generally in this locality would have done in the treatment of her, and because of such failure there was an unfavorable result, then the defendant would be liable to the plaintiff for the damages occasioned by such failure.' The instruction is faulty in that it makes the standard of treatment that of the locality alone in which the appellant was practicing whereas the true standard is that of all similar localities. 5 Thompson, Negligence, § 6711.

The appellant, however, is not in a position to avail himself of the error. He requested an instruction more elaborate in terms, but embodying the same restricted standard. Moreover it is obvious that the error was no more prejudicial to the respondent than to the appellant.

2. The appellant requested an instruction to the effect that if the jury found that an X-ray picture of the fracture should have been taken it would not be negligence, as a matter of law, for the appellant not to have such picture taken at his own expense. The evidence showed that the limb was broken on January 17, 1911, and that an X-ray picture of the fracture was taken on February 3, 1911, at the request of the appellant. Who paid for it did not appear. The requested instruction, whatever its merit as a legal abstraction, was properly refused, as there was no evidence to which it could apply.

3. In his closing address to the jury senior counsel for respondent, doubtless inspired by a somewhat exaggerated sense of his duty to his client, repeatedly indulged in inflammatory argument, some of it alluding to matters outside of the record. The address was reasonably calculated to prejudice the appellant in the minds of the jurymen. For example, referring to the appellant and his treatment of the respondent, he said: 'He has no more right to ruin her by maltreatment than he would have by ravishing her, not a bit.' And again: 'I tell you, ladies and gentlemen of the jury, that if you do, if you say by your verdict in this case that the doctor has not done anything but what he ought to have done, and that he did not leave anything undone that he ought to have done, I want to quit practicing law, because I will know then that the poor have not any chance in this world with these great railroad physicians, calling to their aid the most eminent railroad lawyer in the city, and the most eminent railroad doctors, as well as others. I will reach the conclusion that it is no use to fight because of the justice of the case, but you must get where the influence or the money is, or you will lose out.' Much beside of a similar character was said, but it would extend this opinion to an unreasonable length to set out all of the objectionable matter. A reading of the entire argument convinces us that, had the trial court granted a new trial because of it, we would not have been warranted in disturbing his action. Respondent's counsel claims that his language was used in reply to argument of the same kind by respondent's counsel. Nothing specific, however, is pointed out excusing the language used.

Respondent cites authority to the effect that a first offender by improper argument cannot complain of a repry in kind. This is undoubtedly the general rule, but we fail to find anything in the argument of opposing counsel, so far as set out in the record, sufficient to invoke that rule. Counsel for appellant did not interrupt the argument with objections, but at its conclusion, and after the jury had retired, took exceptions thereto. The court asked if it was desired that the jury be recalled and instructed to disregard the remarks excepted to. To this counsel replied that there was no objection to the court doing so, if he thought he ought to, and added: 'But I don't think that an instruction to the jury to disregard that would cut any figure. Your honor can't recall the exact language that was used and change the impression that was made by it. It is misconduct of counsel in my judgment of the very grossest kind, and it is impossible to eradicate it from the jury's mind by just telling them to disregard it. * * * I don't think that the practice of telling the jury to disregard that in any way cures it, either as a fact or a matter of law.' The jury was not recalled, and no instruction touching the matter was given. This misconduct of respondent's counsel seems to have been pressed as the principal ground relied upon for a new trial. In overruling the motion for a new trial the court said: 'In every properly conducted jury trial, each actor has his own well-defined duty to perform, the judge, his, and the attorneys, theirs; and it would ill become a judge to interfere, sponte sua, with the duty of the attorney, barring exceptional cases. This is particularly true when counsel are experienced. One of the duties of counsel is to observe what opposing counsel is saying, and to make timely objection whenever, in his opinion, his opponent is saying anything not warranted in the case and prejudicial to his own client. If opposing counsel makes unauthorized statements in his argument to the jury, he should instanter object thereto, and move the court to warn the jury not to regard them. If he remains silent, the jury may well believe that the offending statements are true and unanswerable. If, however, objection had been made promptly, and the objection sustained and the jury warned, it is quite likely that the jury would resent the wrongful statement. It is also likely that if opposing counsel's first wrongful remark had been interrupted and stopped, he would not have repeated the offense. Failure to object only urged him on to other and perhaps more flagrant remarks. I see no good reason why the rule of the Supreme Court should not be applied to the trial court, requiring due objection and exception to be taken under these circumstances before a motion for a new trial will be entertained. So far as the offending language is concerned, I should have no hesitancy in granting a new trial on account thereof, had the necessary objection been taken. Mr. Graves may incorporate my view, as to the effect of the language used, in the order denying motion for new trial, if he desires.' The court expressly refused to enter an order placing his denial of a new trial on the discretionary ground of estoppel by failure to object implied in the first part of his announcement, but did enter an order denying a new trial on the ground that he had no legal power to grant it. The order entered, omitting formal parts, is as follows: 'In the opinion of the court, the language of counsel for plaintiff, excepted to by the defendant and urged upon the court as a ground for a new trial, is such that the motion should be granted, and would be granted if timely objection had been taken thereto. The court holds, however, as a matter of law, that objection should be made to the language at the time it is used, and the court should have been moved at that time to warn the jury to disregard such language, and the court is further of the opinion that he has no power, as a matter of law, to grant a new trial on account of said language because timely objection was not made, and the motion is overruled because of this view of the law. If the court were wrong in this view of the law, a new trial would be granted by this court, and this court is of the opinion that if wrong in that view of the law, a new trial should be granted on account of the several matters and things contained in the closing argument of counsel for the plaintiff.'

It will be noted that the court, both in his oral announcement and in his formal order, expressed the clear opinion that the offending language, even in the absence of what he deemed timely objection thereto, was such as would have impelled him to grant a new trial had he believed that he possessed the legal power to do so. His formal order, which we have seen he signed advisedly, is based unqualifiedly upon the sole ground of lack of discretionary power, as a matter of law, to grant a new trial, because no exceptions were taken at the very time when the remarks were made, and because of the failure of counsel to then move the court to instruct the jury to disregard the objectionable language, though such exceptions were taken immediately after the jury retired, and the court then had an opportunity to so instruct before the jury had fairly entered upon its deliberations. In this the court was in error. Neither the statute nor the law, in the absence of statute, so circumscribes the trial court's discretion. The statute (Rem. & Bal....