Greene v. Rothschild
| Decision Date | 23 May 1966 |
| Docket Number | No. 37296,37296 |
| Citation | 68 Wn.2d 1,414 P.2d 1013 |
| Court | Washington Supreme Court |
| Parties | David R. GREENE, Respondent, v. W. R. ROTHSCHILD et al., E. Royce, Trustee for E. M. Royce, a minor, and D. F. Royce, doing business as Yellow Cab Company, Appellants, Yellow Cab Service, Inc., Jay Scott Yellow Cab Co., Inc., and Clarence E. Babcock, Defendants. |
Little, Gandy, Stephan, Palmer & Slemmons, Seattle, for appellants.
Vaughn E. Evans, Seattle, for respondent.
The respondent petitioned for rehearing, contending that the court had disregarded the doctrine of 'law of the case' and that this doctrine dictated that the judgment on the second trial should be affirmed. The petition was granted.
In reversing the judgment of the trial court in our en banc opinion, heretofore filed herein and reported in 66 Wash.Dec.2d 271, 402 P.2d 356, we overruled the case of Greene v. Rothschild, 60 Wash.2d 508, 374 P.2d 566 (1962), which was an earlier appeal of the same case, insofar as it impliedly held that the exoneration of an agent, for whose negligence it is sought to hold his principal liable, does not exonerate the principal. There was no direct holding to this effect, and the question was not discussed in the earlier opinion, but it was inherent in the disposition made of the case. As we said in our opinion on the second appeal, this disposition was clearly erroneous and resulted in patent injustice to the appellant.
It is the contention of the respondent, as we understand it, that the court does not have jurisdiction or 'power' to overrule its former decision in the case. The respondent correctly maintains that this court has many times said that the rulings on the first appeal become the law of the case, and that questions decided by the court on the first appeal will not again be reviewed by this court; and that this court has even gone so far as to say that it Cannot review them. Cases containing language of the latter import are Hammock v. City of Tacoma, 44 Wash. 623, 87 P. 924 (1906); Starr v. Long Jim, 59 Wash. 190, 109 P. 810 (1910); Peterson v. Denny-Renton Clay & Coal Co., 100 Wash. 613, 171 P. 543 (1918); McGill v. Baker, 157 Wash. 414, 288 P. 1062 (1930); Stusser v. Gottstein, 187 Wash. 660, 61 P.2d 149 (1936); Miller v. Sisters of St. Francis, 5 Wash.2d 204, 105 P.2d 32 (1940); Davis v. Davis, 16 Wash.2d 607, 134 P.2d 467 (1943). Insofar as the language in these cases implies that the court does not have the power to overrule its prior decisions, they are in error; and to that extent, we hereby exercise that power and overrule them.
The rules pertaining to 'law of the case' which this court and others have adopted and followed in proper cases are court made rules. The doctrine is a common law doctrine and some courts have stated it more broadly and applied it more rigorously than others.
A recent statement of the doctrine, as expressed in this jurisdiction, is contained in Adamson v. Traylor, 66 Wash.Dec.2d 328, 402 P.2d 499, written by the author of this opinion. We said there:
It is also the rule that questions determined on appeal, or which might have been determined had they been presented, 1 will not again be considered on a subsequent appeal if there is no substantial change in the evidence at a second determination of the cause. Clark v. Fowler, 61 Wash.2d 211, 377 P.2d 998. The supreme court is bound by its decision on the first appeal until such time as it might be authoritatively overruled. Kennett v. Yates, 45 Wash.2d 35, 272 P.2d 122.
It will be seen that in the same breath that the court proclaims it is bound by the former decision, it recognizes its power to overrule it. Our research has disclosed only one case in which this court has expressly overruled a prior decision in the same case. In that case, Shell Oil Co. v. Henry, 175 Wash. 298, 27 P.2d 582 (1933), we held that the law laid down on the first appeal had been overruled by subsequent cases applying a different rule of law to substantially the same facts.
The power of this court to overrule its decision on a former appeal is recognized also in Thornton v. Eneroth, 180 Wash. 250, 39 P.2d 379, 48 P.2d 1120 (1934), (wherein the court did in fact review its former decision, for the opinion states, 'The majority are not disposed to overrule or recede from the former decision.'); Baxter v. Ford Motor Co., 179 Wash. 123, 35 P.2d 1090 (1934), (wherein this court said, 'At least, a majority of the court still consider the former decision as in accord with the principles of common law, in so far as this appellant is concerned, are content therewith, and are not disposed to overrule it.'), and Bunn v. Bates, 36 Wash.2d 100, 216 P.2d 741 (1950), (wherein this language is found 'Having read the testimony adduced in both hearings, we will further say that we do not recede from any of the legal or factual statements in the opinion in 31 Wash.2d 315, 196 P.2d 741, but, by reference, we restate and reaffirm them in this opinion.').
Thus it is clear that this court does have the power to review and overrule its prior decisions, and the respondent has cited no constitutional provision denying it that power.
Under the doctrine of stare decisis, the court is not obliged to perpetuate its own errors. This doctrine means that the rule laid down in any particular case is applicable to another case involving identical or substantially similar facts. Floyd v. Dept. of Labor and Industries, 44 Wash.2d 560, 269 P.2d 563 (1954). But the doctrine will not be applied in cases in which to do so would perpetuate error and in which no property rights would be affected by the overruling of the prior decision. Hutton v. Martin, 41 Wash.2d 780, 252 P.2d 581 (1953). We see no reason why this principle should not apply where the allegedly erroneous decision is one which was rendered on a prior appeal of the same case. And in fact it is the increasingly accepted view that the doctrine of 'law of the case' is a discretionary rule, which should not be applied where it would result in manifest injustice. This tendency is reported in annotations in 1 A.L.R. 1267, 8 A.L.R. 1033, 67 A.L.R. 1390, and 87 A.L.R.2d 275. In this last annotation, it is noted that Washington is among those jurisdictions which have acknowledged that the doctrine is not inflexible, and this recognition is expressed in the early case of Seattle v. Northern Pacific Ry. Co., 63 Wash. 129, 114 Pac. 1038 (1911). Summarizing the approach which this tendency represents, the writer of the annotation, at 282, says:
Under this view the doctrine of the law of the case, as applied to appellate courts on successive appeals, is a mere rule of practice, but not a limitation on the courts' power. It is, however, recognized that an appellate court's power to depart from its own ruling on a former appeal may be invoked not as a matter of right, but of grace and discretion, and should be exercised only sparingly or rarely, and for cogent reasons, after careful consideration of the situation involved in individual cases, or, more specifically, in a clear case under extraordinary or exceptional circumstances, in the interest of justice.
Such law review comments as our research has uncovered are critical of courts which apply the doctrine to perpetuate error. These are 62 Harv.L.Rev. 286 (); 5 Stan.L.Rev. 751 () and 28 Wash.L.Rev. 137. As the author of the comment in the Washington Law Review observed, the United States Supreme Court has pointed out, in United States v. United States Smelting, Refining and Mining Co., 339 U.S. 186, 70 S.Ct. 537, 94 L.Ed. 750 (1950), that whereas the...
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