Criez v. Sunset Motor Co.

• Decision Date: 17 February 1923
• Docket Number: 17364.
• Citation: 213 P. 7,123 Wash. 604
• Court: Washington Supreme Court
• Parties: CRIEZ v. SUNSET MOTOR CO. et al.

213 P. 7

123 Wash. 604

CRIEZ v. SUNSET MOTOR CO. et al.

No. 17364.

Supreme Court of Washington

February 17, 1923

Department 2.

Appeal from Superior Court, Pierce County; Wm. Daskren, Judge.

Action by John L. Criez against the Sunset Motor Company and another. Judgment for plaintiff, and defendants appeal. Reversed and remanded for new trial.

Charles E. Patterson, Tom S. Patterson, and John W. Heal, Jr., all of Seattle, for appellants.

Grant A. Dentler and Schneider & Cochran, all of Tacoma, for respondent.

TOLMAN J.

This is an action to recover damages alleged to have been sustained as the result of an automobile collision. The cause was tried to a jury, which returned a verdict in favor of the plaintiff and against the defendants, in the sum of $5,833. On motion for a new trial the amount of the verdict was reduced to $4,183, and from a judgment thereon the defendants have appealed.

It appears that on June 18, 1920, after a regular hearing in the superior court for Pierce county, respondent was adjudged to be insane, being afflicted with what physicians describe as manic depressive psychosis, probably curable, and he was ordered committed to the Western State Hospital for the Insane, and on the same day, by written order of the court he was paroled in the care of his brother, for private treatment. The accident out of which this action arises occurred on August 4, 1920, at which time respondent was driving a Dodge touring car on the highway from Puyallup to Tacoma, when appellant Whitcomb, an employee of the appellant Sunset Motor Company, and then engaged in its business driving a Hudson car, overtook and passed respondent, and it is alleged did so in a negligent, reckless, and unskilled manner so as to cause the cars to collide and force respondent's car off the paved roadway and over the embankment, causing the injuries complained of.

It is appellants' theory that respondent was, at the time of the accident, suffering from a form of insanity which caused him to be excitable, irritable, and unreasonable, and without ordinary judgment, and that he became angered and excited by the attempts of appellant Whitcomb to pass, and either drove his car off the road as the result of an insane impulse, or became so wrought up as to completely lose control of the car, and that in either event there was no actual collision.

This court, in the case of In re Brown, 39 Wash. 160, 81 P. 552, 1 L. R. A. (N. S.) 540, 109 Am. St. Rep. 868, 4 Ann Cas. 488, quoted with approval from Schouler on Wills, as follows:

'The presumption being that general insanity once shown to exist still continues, unless of a temporary sort, like the delirium of drunkenness or a fever, the burden of proof to establish a lucid interval or mental restoration rests upon the party who asserts it. Schouler, Wills (3d Ed.) § 189, and cases cited.'

And such seems to be the general rule. Therefore respondent had the burden as to his mental condition at the time of the accident, and the court did not err in permitting witnesses to testify in his behalf as to his sanity at and after the time of the accident. One of the witnesses so testifying was Ernest I. Criez, a brother, and to meet this testimony appellants offered in evidence a certified copy of the entire record in a proceeding in the same court instituted August 13, 1920, or nine days after the accident, for the appointment of a guardian for respondent. The petition recites:

'That John L. Criez was adjudged insane by the above entitled court on or about the 18 day of June, 1920, and has been committed to the hospital for insane at Ft. Steilacoom, Wash., and that he is incompetent to manage his property and estate and has no legally appointed guardian for the same,'

and is verified by Ernest I. Criez. The order made and filed August 26, 1920, after personal service of notice upon respondent, recites, 'and it appearing to the court that said John L. Criez is an insane person,' etc. Since respondent did not contest this proceeding in any way, and since there was an issue as to respondent's sanity at the time of the accident, and during the period when he claimed a loss of earnings, we think this evidence was admissible, and especially so as affecting the weight to be accorded to the testimony of Ernest I. Criez on the question of sanity.

There was evidence tending to show that respondent was sent to the asylum after the accident in order that he might there be treated for his injuries, and not because of his mental condition. This was sufficient to justify the submission to the jury of the question of damages through loss of wages, as it was for the jury to determine whether respondent was incapacitated by his injuries or by his mental condition.

Instruction numbered 16, as given by the trial court, is attacked upon two grounds: First, because it makes the driver of the overtaking and passing vehicle an insurer of the overtaken vehicle; and, second, because it makes the giving of a signal by the overtaking driver a condition precedent to his right to pass. There is some slight ground for the first criticism not sufficient, if standing alone, to call for a reversal, but, since the case must be retried, attention is called to the matter in order that upon a...