Forsyth v. Kuphal, 24089.

• Decision Date: 22 November 1932
• Docket Number: 24089.
• Citation: 170 Wash. 202,15 P.2d 1115
• Parties: FORSYTH v. KUPHAL et al.
• Court: Washington Supreme Court

15 P.2d 1115

170 Wash. 202

FORSYTH v. KUPHAL et al.

No. 24089.

Supreme Court of Washington

November 22, 1932

Department 1.

Appeal from Superior Court, Mason County; John M. Wilson, Judge.

Suit by Angela Forsyth, by and through her guardian ad litem, Laura Forsyth, against John Kuphal and another, copartners doing business as the Shelton Baking Company. From a judgment for plaintiff, defendants appeal.

Affirmed.

Ellis &amp Evans, of Tacoma, for appellants.

Alfred Thompson, Frank R. Jeffrey, F. A. Pellegrini, and W. B Severyns, all of Seattle, for respondent.

MITCHELL J.

Angela Forsyth, about 13 years of age, was injured in an automobile collision. She sued the owner of the automobile whose driver's negligence caused the collision and recovered a verdict and judgment in the sum of $12,000, from which the appeal had been taken.

The sole question on the appeal is as to the amount of damages awarded; appellants claiming that it is excessive and was given under the influence of passion and prejudice, and that the trial judge abused his discretion in refusing to grant a new trial unless a reduced amount were accepted by the respondent, or grant a new trial outright.

At the age of 13 months the girl had influenza and double pneumonia which left her afflicted with encephalitis, commonly known as sleeping sickness. She became emaciated, and her feet were affected; she did not want to use her feet for some considerable time, and suffered from nervousness and tremor when excited. Later she improved nicely, as the testimony shows. She got along well at school, although part of the time she was given a quiet room, with others, in which to study. Her mother testified that prior to the accident the girl went to school alone, more than a mile away; dressed and undressed herself, fed herself, did everything as any normal girl, and helped with the house-work and baked beautifully. Since the accident, there is nothing the child can do. She cannot go to school, because she falls down if allowed to walk very far, and cannot dress or feed herself. She cannot play handball, croquet, hopscotch, or other games with the children as she did prior to the accident. Before the accident, she had gotten to be about normal, but since then she cannot do anything because of 'the tremors,' and since the accident she throws her head to the left and her whole body seems to be rigid. 'Q. Has she any trouble in falling? A. Yes, she has fallen. She falls all the time.' She further testified that prior to the accident the child had no aches or pains, but since then she complains of aches and pains in her head and back.

The family physician testified that under treatment the child was improving Before the accident; that she was getting on well at school and at home in social life including play; that she was normal, except her body had a tendency to be somewhat rigid when excited, and a little stiffness in her walk; that he diagnosed her trouble as encephalitis, and that the disease had been arrested at the time of the accident; that the girl was taken to his office shortly after the accident. He further testified: 'She came in. Her head was all swathed in bandages. They were blood soaked. Her eyes were all black and her cheek bones swollen. I took off the bandages and over this part of the forehead (indicating) there was a large swollen area that was pulpified and thick and swollen and over the eye there was a cut and a small cut at the angle of the eye. She was in a very bad nervous condition. She jerked and for the first time I noticed that she pulled her head back like this (indicating) and her spine was arched upwards and her foot was turned very much out and she had a very great tremor and I had a hard time getting her undressed and a new dressing put on. At that time I had learned of the accident. She was complaining of headaches, not able to sleep. She was having nightmares, she was unable to feed herself, unable to dress...