Forsyth v. Wallace

• Decision Date: 16 August 1916
• Docket Number: 13431.
• Court: Washington Supreme Court
• Parties: FORSYTH v. WALLACE et al.

159 P. 696

92 Wash. 523

FORSYTH v. WALLACE et al.

No. 13431.

Supreme Court of Washington

August 16, 1916

Department 2. Appeal from Superior Court, Spokane County; Wm. A. Huneke Judge.

Action by Ora O. Forsyth against J. B. Wallace and another. Judgment for plaintiff, and defendants appeal. Affirmed.

O. C Moore, of Spokane, and Henry S. Noon, of Seattle, for appellants.

Don F Kizer, of Spokane, for respondent.

BAUSMAN J.

Forsyth a passenger in defendant's jitney, knocked senseless by a collision, brought suit for damages based on unconsciousness continuing several days, permanent diminution of hearing, and recurring headaches and dizziness. Defendant appeals from a judgment based upon a verdict for plaintiff.

A first error assigned is the court's permitting plaintiff in opening to prove industrious habits. We decline to exclude this proof under either the reasoning or the rule in Davis v. Kornman, 141 Ala. 479, 37 So. 789, 791, or of Pennsylvania R. Co. v. Books, 57 Pa. 339, 98 Am. Dec. 229. Much sounder appear Louisville & Nashville R. Co. v. Daniel, 122 Ky. 256, 91 S.W. 691, 28 Ky. Law Rep. 1146, 3 L. R. A. (N. S.) 1190; Metropolitan St. Ry. Co. v. Kennedy, 82 F. 158, 27 C. C. A. 136; Cameron Mill, etc., Co. v. Anderson, 98 Tex. 156, 81 S.W. 282, 1 L. R. A. (N. S.) 198. There was proof here of future and permanent impairment of physical condition, and nothing is more a part of a man's earning power than industrious habits. As to their not being alleged in the pleadings, this need not be discussed, since the objection was not upon that ground, but upon a vague, 'irrelevant, and immaterial.' Evergreen Farm v. Attalia Land Co., 157 P. 487. A fact perfectly relevant to a cause of action may be omitted by chance from allegations, yet this form of objection would not indicate that reason.

A new trial was asked upon affidavits showing that plaintiff had been convicted of forgery some years before in another county, which fact, had it been put in evidence, would have been of force to impeach his sole narrative on sundry important details, but no good reason was shown why this was not discovered before, and, besides, it is only impeaching evidence which, even when impeaching the opposing party, we have held insufficient to justify this court in reversing the lower court's denial of new trial. Armstrong v Yakima Hotel Co., 75 Wash. 477, 135 P. 233; Orr v. Schwager & Nettleton, 74 Wash. 631, 134...