Frick v. Washington Water Power Co.
| Decision Date | 10 October 1913 |
| Citation | 76 Wash. 12,135 P. 470 |
| Parties | FRICK et ux. v. WASHINGTON WATER POWER CO. |
| Court | Washington Supreme Court |
On rehearing. Former opinion overruled, judgment reversed, and cause remanded.
For former opinion, see 130 P. 98.
The original opinion in this case will be found in 130 P. 98 where the case is fully stated. When the original opinion was written, the writer overlooked the opinion in Zolawenski v. City of Aberdeen, 72 Wash. 95, 129 P. 1090, where the principal point was decided opposite to our conclusion in this case. Our attention was called to this fact, whereupon a rehearing was granted in both cases, and they were accordingly heard by the court sitting en banc. Upon this rehearing and further consideration, we have concluded that we went too far in this case when we announced the rule that a plaintiff in a personal injury case must abide the result of an allegation of perfect health, and, failing to establish that fact, will not be permitted to recover for an aggravated condition of a previous known infirmity, which aggravated condition is caused by the negligence of the defendant. This rule was there based upon the idea that the plaintiff knowing her previous condition, should have alleged it, and claimed damages only for the aggravation. While there is substantial justice in this rule as there announced, we have now concluded that it is not the better rule, because it is a rule of almost universal application that a claim for a greater amount necessarily includes the lesser. For example: In an action upon a promissory note, or any other contract, where it is alleged that the whole amount thereof is due, the plaintiff will be permitted to recover the amount actually due, notwithstanding he willfully alleges and testifies that the whole thereof is due, when in truth only a small part is due. The defense of payment in such cases is an affirmative defense, and must be proved as such. No sufficient reason has been advanced why the same rule shall not apply in personal injury cases. The plaintiff alleges negligence of the defendant, and resulting injury that he was in perfect health before the injury; that all his damage flowed naturally from the injury. He testifies to these facts knowing that he was previously afflicted with diseases. The fact that he was previously afflicted was a defense, pro tanto only, and not a complete defense. For it is a well-settled rule that h...
To continue reading
Request your trial
-
Varley v. Motyl
...3 N.J.Super. 132, 135, 65 A.2d 766; Virginia Ry. & Power Co. v. Hubbard, 120 Va. 664, 669, 91 S.E. 618; Frick v. Washington Water Power Co., 76 Wash. 12, 13, 135 P. 470. As is well pointed out in the dissent in this case, the complaint does not conform to good pleading. We hold, however, th......
-
Johnson v. Howard
...condition may be received, even though there is no allegation of such aggravation in the complaint. See Frick v. Washington Water Power Co., 76 Wash. 12, 135 P. 470. The trial court was correct in holding that reception of this evidence did not entitle respondents to a new The remaining rea......
-
Frye v. Jensen
... ... Aberdeen, 72 Wash. 95, 129 P. 1090, ... and Frick v. Washington Water Power Co., 76 Wash ... 12, 135 P. 470. The ... ...
-
City of Richmond v. Land-Dilks Company
... ... quantities of surface water to flow into the basement of ... appellee's factory building. A demurrer ... 738, 79 S.E. 731, 48 L.R.A. (N. S.) 561, ... Ann. Cas. 1915D 956; Frick v. Washington, etc., ... Co. (1913), 76 Wash. 12, 135 P. 470; Sterrett ... ...