Haaga v. Saginaw Logging Co., 23222.

• Decision Date: 26 October 1932
• Docket Number: 23222.
• Citation: 170 Wash. 93,15 P.2d 655
• Parties: HAAGA v. SAGINAW LOGGING CO. et al.
• Court: Washington Supreme Court

15 P.2d 655

170 Wash. 93

HAAGA v. SAGINAW LOGGING CO. et al.

No. 23222.

Supreme Court of Washington, En Banc.

October 26, 1932

Appeal from Superior Court, Grays Harbor County; Wm. E. Campbell Judge.

Action by Hugo Haaga against the Saginaw Logging Company and another. Judgment for plaintiff was affirmed by the Supreme Court ina judgment [165 Wash. 367, 5 P.2d 505], which was affirmed on rehearing . On defendants' petition for leave to apply for a new trial.

Petition granted, with directions.

John C Hogan and Thomas S. Grant, both of Aberdeen (Ernest L. Skeel of Seattle, of counsel), for appellants.

L. B Sulgrove, of Tacoma, for respondent.

C. H. Paul, of Longview, W. H. Abel, of Montesano, F. T. Merritt, L. B. da Ponte, T. H. Maguire, Roberts, Skeel & Holman, Thos. Balmer, F. M. Dudley, Stratton & Kane, all of Seattle, and Alex M. Winston, of Spokane, amici curiae.

PARKER, J.

The appellants, logging company and Aubert, hereinafter called petitioners, have filed in this cause in this court their petition for leave to file in the superior court for Grays Harbor county, and leave to that court to act upon, their petition to set aside the judgment rendered in this cause against them in that court in favor of the respondent, Haaga and grant them a new trial upon the ground of newly discovered evidence of facts occurring after the trial of the cause in the superior court while their appeal from the judgment was pending in this court, demonstrating that the award of the verdict and judgment is grossly excessive.

Upon the trial of the cause in the superior court, Haaga was, by verdict and judgment rendered therein, awarded recovery against petitioners in the sum of $40,000 for their negligence causing personal injuries to him, consisting principally of the 'breaking of the plaintiff's back,' as alleged in his complaint, and particularly of the 'dislocation of the sixth cervical vertebra' and the 'fracture of the seventh cervical vertebra,' as testified to by his physical upon the trial. The cause was prosecuted and recovery sought in the sum of $40,000, and the award of the verdict made in that sum upon the theory that by such injuries Haaga was caused great physical and mental suffering and also was rendered permanently and totally disabled, and that his earning power was entirely destroyed for the remainder of his natural life; he having a life expectancy of approximately forty-one years, during which period an annuity equal to his earning power would have cost him approximately $32,000.

Petitioners appealed from the judgment to this court. Thereafter department 1 of this court rendered its decision affirming the judgment. 165 Wash. 367, 5 P.2d 505. Thereafter a petition for rehearing Before the court en banc was granted. Thereafter, Before the rehearing argument was had, petitioners filed in the cause in this court this petition for leave to apply to the superior court for a new trial. The petition was allowed to rest undisposed of until the decision of the court en banc upon the rehearing of the appeal; this because a decision upon the rehearing awarding to the petitioner a new trial upon the record made in the superior court would obviate any necessity of disposing of the petition. In due course, the argument upon the granted rehearing was had Before the court en banc and a decision rendered thereon, by which a majority of the judges adhered to the decision of the department; the judgment of the trial court being thereby finally affirmed on September 20, 1932. 14 P.2d 55.

Thereafter the petition, which had been filed June 29, 1932, came regularly on for hearing Before the court en banc, and, after argument of counsel for the respective parties, was submitted for final disposition. The ground for relief sought is stated in general terms in the petition as follows:

'That said judgment was wrongfully obtained and that new evidence has been discovered which indicates that the respondent has substantially, if not entirely, recovered from the injuries which he complained of.'

This is supported by several affidavits attached to and made part of the petition. One of the affidavits, made June 20, 1932, attached to the petition, reads as follows:

'I am 47 years of age and reside on the Olympic Highway between Aberdeen and Montesano, near the N. P. Railway crossing.

'I know Hugo Haaga. For some months past he has been living near the Olympic Highway between Aberdeen and Montesano, near the N. P. Railway crossing. He lives about 200 ft. distant from where I live. I have known him since some time in the fall of 1931. I was absent from my place from the fall of 1931 until March 20, 1932.

'On March 20, 1932, I returned to my home and since that time Haaga has been under my daily observation. He and another man had been practically constantly since March 20, 1932 engaged in clearing, grading and filling a tract of land owned by one Fixmore and Haskell. He has been working daily at this work and he and another man by the use of shovels and a Ford car filled about one-half acre of tide land with dirt to a depth of approximately 3 or 4 feet. This work was well under way on March 20, 1932, when I returned home and Haaga and this other man have been working at it practically constantly since that time. During that time I have had occasion to walk by daily where they were working 3 times a day or more and I have stopped at times to chat with them, and have had every opportunity to observe how Haaga worked. His working was like any normal man. I saw Haaga time and again working under the automobile fixing it and fixing the engine, fixing tires and doing all sorts of work just like anybody else and doing miscellaneous work around just like anybody else, and I saw nothing in his movements that looked like the movements of a disabled man. In fact I did not know he had been hurt until just a few days ago when I was told that he claimed to have had a broken neck.

'Haaga handled the shovel like anyone else, apparently shoveling as much dirt as anybody else and driving the automobile, chopping with the axe and using tools and he had no brace on his neck or anything of that kind. He never gave the slightest appearance to me of being disabled and I was surprised a week ago when I was told that he claimed to be disabled.'

Attached to the petition there are other affidavits made on June 20, 23, 25, and 27, lending strong support to the statements made in the one above quoted. Upon the hearing in this court, other affidavits were submitted, some in support of, and some controverting, the statements made in the affidavits above noticed.

The petition was filed in the cause in this court manifestly looking to a hearing in the superior court under the statutory provisions relating to the vacation and modification of judgments, which, so far as need be here noticed, are as follows (we quote from Remington's Compiled Statutes):

'§ 464. The superior court in which a judgment has been rendered, or by which or the judge of which a final order has been made, shall have power, after the term (time) at which such judgment or order was made, to vacate or modify such judgment or order:----

'1. By granting a new trial for the cause, within the time and in the manner, and for any of the causes prescribed by the sections relating to new trials; * * *

'4. For fraud practiced by the successful party in obtaining the judgment or order; * * *

'7. For unavoidable casualty or misfortune preventing the party from prosecuting or defending. * * *

'§ 465. When the grounds for a new trial...