Dial v. Dominick

• Citation: 300 P. 1061,163 Wash. 253
• Decision Date: 29 June 1931
• Docket Number: 23208.
• Parties: DIAL et al. v. DOMINICK.
• Court: United States State Supreme Court of Washington

300 P. 1061

163 Wash. 253

DIAL et al. v. DOMINICK.

No. 23208.

Supreme Court of Washington

June 29, 1931

Department 1.

Appeal from Superior Court, Chelan County; W. O. Parr, Judge.

Action by Harry Dial, a minor, by his guardian ad litem, Bertha Dial, and by Bertha Dial, against Theo. Dominick. From a judgment for plaintiffs, defendant appeals.

Affirmed.

A. N. Corbin, of Wenatchee, for appellant.

Le Roy McCann, of Wenatchee, for respondents.

MITCHELL, J.

This is an action by Harry Dial, a minor, by his guardian ad litem to recover damages for assault and battery. Damages were alleged and judgment demanded in the sum of $1,600. There was a verdict in the sum of $350. Defendant has appealed from a judgment on the verdict.

The principal assignment urged on the appeal is that the trial court in its instructions advised the jury that it was authorized to take into consideration certain items of damages, among others, beyond those mentioned in the complaint. The instructions were broader than the complaint in that respect, but the record shows justification therefor on account of testimony admitted on behalf of the plaintiff that was in no way objected to by the appellant. As stated in Schirmer v. Nethercutt, 157 Wash. 172, 288 P. 265, 267: 'Whatever the deficiencies in the complaint may have been, they were amply covered by proofs in the case, and the pleading is to be deemed to be amended to conform to the proof, in the absence of surprise and prejudice, under our unvarying practice.'

The only other assignment on the appeal relates to the sufficiency of the facts to justify the verdict. Concerning this assignment there was abundant evidence to take the case to the jury and to justify the verdict.

Judgment affirmed.

TOLMAN, C.J., and HOLCOMB, PARKER, and MAIN, JJ., concur.