O'Donoghue v. Riggs

• Decision Date: 09 May 1968
• Docket Number: No. 39172,39172
• Citation: 440 P.2d 823,73 Wn.2d 814
• Court: Washington Supreme Court
• Parties: Neil B. O'DONOGHUE and Helen M. O'Donoghue, his wife, Respondents, v. Sue RIGGS and John Doe Riggs, her husband, Appellants.

Page 814

73 Wn.2d 814

440 P.2d 823

Neil B. O'DONOGHUE and Helen M. O'Donoghue, his wife, Respondents, v. Sue RIGGS and John Doe Riggs, her husband, Appellants.

No. 39172.

Supreme Court of Washington, Department 1.

May 9, 1968.

Rehearing Denied June 19, 1968.

John J. O'Connell Atty. Gen., Burton R. Johnson, Sp. Deputy Atty. Gen., Olympia, for appellants.

Horton, Wilkins, Horton & Bennett, Hugh B. Horton, Kennewick, for respondents.

WARD, Judge. ^*

This is the second appearance in this court of the Helen M. O'Donoghue claim for damages. Her first action was brought against the state of Washington under the tort claims act, RCW 4.92. In that action, she claimed she suffered personal injuries while she was a patient in the Eastern State Hospital at Medical Lake, for which the state of Washington was liable. That action, however, was dismissed by the trial court on account of her failure to file a timely claim against the state as required by the provisions of RCW 4.92, and that disposition of the case was affirmed by this court in O'Donoghue v. State, 66 Wash.2d 787, 405 P.2d 258 (1965).

The plaintiff then commenced the present action against Dr. Garrett Heyns, Director of the Department of Institutions, Dr. Harris F. Bunnell, Superintendent of Eastern State Hospital, Laurel V. Nelson, Eastern State Hospital Administrator, Sue Riggs, a practical nurse at the hospital, and Belle Orr, a hospital attendant.

Mrs. O'Donoghue was admitted as a voluntary patient at Eastern State Hospital on May 10, 1963. She claims that, on the day following her admittance, she was pushed by the defendant, Sue Riggs, who was attempting to force her to take her place in a line of patients going to their evening meal, and that, as a result of being pushed, she fell and sustained a fracture of the femur. For such injury, and for subsequent urinary troubles, claimed to have resulted from the immobilization necessary for the treatment of the leg injury, she sought recovery of damages.

Dr. Heyns was dismissed as a defendant before trial. Dr. Bunnell, Laurel V. Nelson, and Belle Orr were dismissed on their motion at the close of the plaintiff's case, leaving Sue Riggs the sole defendant. The jury returned a verdict against Mrs. Riggs in the sum of $10,000, and this appeal is from the judgment entered thereon. We shall discuss the facts in more detail only as may be necessary for an understanding of the 16 assignments of error raised on this appeal.

The defendant assigns error upon the failure of the trial court to dismiss the case on her motion for summary judgment. She claims that the abortive action, which Mrs. O'Donoghue first brought against the state of Washington, constituted an election of remedies, barring her from bringing the subsequent action against the individual defendants. There is no merit in this contention. Mrs. O'Donoghue brought her prior action under the mistaken belief that she had a valid claim against the state. If a party believes he has a claim, but subsequent events prove the claim to be nonexistent, his attempt to assert such claim in court does not constitute an election, barring pursuit of a meritorious claim based on the same facts but against a different party. In such a case, it is immaterial whether the remedy be nonexistent because it develops that the facts are different from what the plaintiff supposed them to be, or whether the law applicable to the facts is found to be other than the claimant supposed. 25 Am.Jur.2d, Election of Remedies § 22 (1966). As we said in In re Pulver, 146 Wash. 597, 604, 264 P. 406, 409 (1928):

Invoking a claimed remedy, which is not in law available, is not an election of a remedy precluding thereafter the invoking of a remedy which is in law available. Roy v. Vaughan, 100 Wash. 345, 170 P. 1019; Harris v. Northwest Motor Co., 116 Wash. 412, 199 P. 992; Warren v. W. W. Sheane Auto Co., 118 Wash. 213, 203 P. 372; Friend v. Talcott, 228 U.S. 27, 33 S.Ct. 505, 57 L.Ed. 718.

See also Spokane Security Finance Co. v. Crowley Lumber Co., 150 Wash. 559, 274 P. 102 (1929); In re Berry's Estate, 196 Wash. 252, 82 P.2d 549 (1938); Portland Association of Credit Men, Inc. v. Earley, 42 Wash.2d 273, 254 P.2d 758 (1953).

The defendant further assigns as error the giving of instruction No. 14, because it contained a statement that one element of damage which the jury might consider, if its verdict was in favor of the plaintiff, was loss of earnings. It is the defendant's position that there was no evidence in the case which would support an award of damages for loss of earnings.

We agree. The plaintiff's own testimony revealed she was both unemployed and unemployable. She testified that for a number of years prior to 1961 she had been employed as records librarian at the Kadlec Methodist Hospital, but suffered two heart attacks, and, as a result, was required to give up her employment in August, 1961. Thereafter, she was hospitalized a number of times and, in 1962, became addicted to narcotic drugs which she had taken in the treatment of her heart condition. Later, psychiatric problems developed. For the treatment of this condition, she entered Eastern State Hospital as a voluntary patient in May, 1962. Thereafter, she returned home but continued to suffer attacks, similar to those which preceded her first admission, of nervousness and depression, accompanied by loss of weight and appetite. On account of such recurrence of symptoms, she re-entered Eastern State Hospital in May, 1963.

In Vangemert v. McCalmon, 68 Wash.2d 618, 622, 414 P.2d 617, (1966), we said:

We have frequently held, and we adhere to the view, that instructions should not be given on issues which are not supported by the evidence. This applies also to the elements for which damages are to be allowed. Pakka v. Fitzpatrick, 53 Wash.2d 356, 333 P.2d 917 (1959); Vogreg v. Shepard Ambulance Serv. Inc., 47 Wash.2d 659, 289 P.2d 350 (1955); Nelson v. Fairfield, 40 Wash.2d 496, 244 P.2d 244 (1952).

Even though the medical evidence indicated that plaintiff had a severe injury, we cannot say that, under the facts of this case, the element of loss of earnings was so minimal that it was harmless error to give instruction No. 14. If it could be said definitely that Mrs. O'Donoghue had suffered these extensive injuries as a result of the fall on May 11, 1963, then it might be proper for us to treat this as a harmless error, not reflected in the amount of the verdict. Vangemert v. McCalmon, supra. In the instant case, however, a Spokane specialist in radiology, with 30 years' specialization and with an outstanding professional background, testified that, from his examination of the X rays taken of Mrs. O'Donoghue's hip, no conclusion could be reached other than that the fracture predated her admission to the hospital. There was no medical testimony to the contrary. From this testimony, the jury could have concluded that, even if Mrs. O'Donoghue was pushed, and fell as a result, no more than an aggravation of a pre-existing injury resulted, and that only a minor part of her injuries was attributable to defendant's act. If that was the jury's reasoning, loss of earnings could be a material element of damage. We are not, therefore, in a position to say, with this element of damage included, that a harmless error was committed in giving instruction No. 14.

The defendant excepted to the failure of the court to give proposed instruction No. 6, reading:

If you find that the fracture of the plaintiff's hip occurred prior to her admission to Eastern State Hospital on May 10, 1963, then your verdict will be for the defendants.

The court did not err in omitting this instruction. This proposed instruction would have been correct only if there was no evidence which would support a finding of aggravation of a pre-existing injury as a result of the push and fall.

Mrs. O'Donoghue testified that the act which caused her injury occurred in the following manner.

A. Well, I was protesting about going down stairs because my legs were bothering me, and the nurse told me I had to go, and she pushed me in line, and I fell, and when I fell I grabbed hold of her to pull myself up, and she said 'don't pull on me; I can't stand to have anyone pull on me,' and after that I don't remember anything more.

In her complaint, Mrs. O'Donoghue claims that these acts, attributable to Mrs. Riggs, constituted negligence. The trial court submitted the case to the jury as an action based on negligence. The defendant claims this was error. She claims that if the acts attributed to her were actionable, they were actionable as a civil action for 'assault,' ¹ and not for negligence. It was not error for the trial court to submit this case to the jury as a negligence case. Mrs. O'Donoghue's testimony quoted above is the only direct evidence in the case stating the manner in which the incident occurred. Mrs. Riggs denies there was any such incident. If the incident occurred, as the jury had a right to believe, then Mrs. Riggs' conduct would constitute negligence if she unintentionally but carelessly used excessive force in placing Mrs. O'Donoghue in the line of patients going to dinner. Under such circumstances as we have here, the intention with which Mrs. Riggs acted would be the primary question in determining whether her act should be deemed negligent or whether it would constitute battery. In McLeod v. Grant County School Dist. No. 128, 42 Wash.2d 316, 319, 255 P.2d 360, 362, (1953), we said:

The tort here charged is negligence. In order to state a cause of action for negligence, it is necessary to allege facts which would warrant a finding that the defendant has committed an unintentional breach of a legal duty, and that such breach was a proximate cause of the harm. See Ullrich v. Columbia & Cowlitz R. Co., 189 Wash. 668, 66 P.2d 853; Harvey v. Auto Interurban Co., 36 Wash.2d 809, 220 P.2d 890.

An act cannot, however, be considered a battery unless...