Johnson v. Marshall Field & Co., 41479

• Decision Date: 24 December 1970
• Docket Number: No. 41479,41479
• Citation: 478 P.2d 735,78 Wn.2d 609
• Court: Washington Supreme Court
• Parties: Julius G. JOHNSON and Willabelle Johnson, his wife, Petitioners, v. MARSHALL FIELD & COMPANY, doing business as Frederick & Nelson, a Washington corporation, Respondent, Otis Elevator Company, a corporation doing business in the State of Washington, Defendant.

Page 609

78 Wn.2d 609

478 P.2d 735

Julius G. JOHNSON and Willabelle Johnson, his wife, Petitioners, v. MARSHALL FIELD & COMPANY, doing business as Frederick &amp Nelson, a Washington corporation, Respondent Otis Elevator Company, a corporation doing business in the State of Washington, Defendant.

No. 41479.

Supreme Court of Washington, En Banc.

Dec. 24, 1970.

Ralph B. Potts, and Sten H. Dagg, Seattle, for petitioners.

William R. Lanthorn, and Leo A. Anderson, Seattle, for respondent.

McGOVERN, Associate Justice.

February 16, 1970, this court granted plaintiffs' petition to review a decision of the state Court of Appeals, which had affirmed the trial court in this matter. See 1 Wash.App. 655, 463 P.2d 645 (1969).

The record reveals the following situation. In their amended complaint, plaintiffs alleged that the wife, Willabelle Johnson, while a customer in defendant's store, was riding in an escalator and was injured through defendant's negligence. Plaintiffs also claimed that after the escalator was stopped, Mrs. Johnson was not given proper care and attention by defendant's employees, although she was in fear of bleeding to death and was begging for help. The prayer of the complaint was for $60,000 general damages and $1,500 special damages.

Several months prior to the trial, plaintiffs filed a notice of trial amendment which stated:

PLEASE FURTHER TAKE NOTICE that the plaintiff will insert a separate paragraph listing the negligence of defendant, Marshall Field & Co., d/b/a Frederick & Nelson, a Washington corporation, in addition to the negligence which was the proximate cause of the accident on the escalator in failing to use proper and reasonable care of the injured plaintiff after the accident as follows:

1. In failing to immediately call a Doctor, although literally dozens were available within a few hundred feet.

2. In failing to use proper care in giving first aid due to the wounds of plaintiff and exposing the plaintiff to untrained personnel who caused the plaintiff severe pain by jabbing her opened scalp and exposed skull.

3. In failing to immediately call an ambulance, after refusing to call a Doctor and in treating plaintiff discounteously and inhumanly thereby rendering her more nervous and making her hysterical, each of which acts of negligence contributed to the pain and agony of the plaintiff and to her disability, both temporary and permanent.

After trial, the jury returned the following verdict:

We, the jury in the above-entitled cause, do find for the plaintiffs in the sum of $0 as to their first cause of action, and in the sum of $ 20,000 as to their second cause of action.

Defendant thereafter moved for judgment n.o.v. or, in the alternative, for a new trial on eight of the nine grounds stated in CR 59. The motion was argued on May 26, 1967, and again on September 8, 1967. On each occasion the trial court orally stated its reasons for its decision to grant a new trial on the second cause of action unless the plaintiffs within 10 days thereafter elected to accept a reduced award of $2,500.

October 24, 1967, the trial court entered its order granting defendant a new trial unless the plaintiffs should consent to a reduction of the verdict from $20,000 to $2,500. Plaintiffs elected not to consent to the trial court's reduction of the verdict and appealed from its order conditionally granting a new trial as to the second cause of action. The Court of Appeals affirmed the action of the trial court. We, however, reverse.

Plaintiffs first challenge the authority of the trial court to grant the defendant a new trial upon the grounds of passion or prejudice, RCW 4.76, and under the governing Civil Rules for Superior Court, CR 59(f), formerly Rules of Pleading, Practice and Procedure 59.04W.

While the order of October 24, 1967, which granted the defendants a new trial on the second cause of action did not specifically state whether the order was based 'upon the record or upon facts and circumstances outside the record which cannot be made a part thereof', as required by CR 59(f), the record otherwise indicates that it was based upon matters in the record. We treat it accordingly and find that the assignment of error has merit.

Despite the trial court's general statement that 'the amount of the award indicates passion and prejudice', other statements by the court clearly indicate that passion or prejudice did not result from anything that may have occurred during the course of the trial. The trial judge said:

Now, it would be difficult for me to say and perhaps impossible--I must be fair to Mrs. Johnson--probably impossible for me to say that twenty thousand dollars is so excessive as to unmistakably indicate passion and prejudice * * *

* * * I think that in fairness I must say that there was nothing in the trial or argument to the jury that was in any way subject to criticism or that was designed to encourage passion or prejudice.

Our extensive examination of the record also fails to disclose anything that occurred during the course of the trial that might reasonably be said to have unfairly resulted in passion or prejudice detrimental to the defendant's cause, nor has counsel for defendants directed our attention to any such prejudicial matter. The trial court therefore committed error in granting a new trial on the grounds of passion or prejudice in the record.

Plaintiffs' remaining assignments of error challenge the trial court's second basis for granting a new trial, I.e., the failure of substantial justice because of an excessive verdict not justified by the evidence. The trial court's order stated:

The amount of the award was such that the court was and is shocked by the amount. Such an amount cannot be justified. It is a gross miscarriage of justice. There was no testimony by any medical witness that the care and attention subsequent to the accident in any way contributed to the injuries or inhibited the plaintiff's recovery from those injuries. Three doctors were called and there was no testimony that the defendant's care and attention was improper.

(Italics ours.)

It must be pointed out that plaintiffs' second cause of action was not predicated solely upon the ground that the defendant's failure to provide adequate care and attention for Mrs. Johnson after the accident contributed to the injuries or that they inhibited her recovery from those injuries. Nor was medical testimony necessary--it would have added nothing to plaintiffs' claim on the second cause of action. The testimony of Mrs. Johnson alone was obviously accepted by the jury when it awarded her a $20,000 verdict, and her testimony was sufficient to support that verdict.

Plaintiff's testimony as it related to her second cause of action was as follows:

Q. (By Mr. Potts) All right. Now, you mentioned a post. About how long was it, can you estimate, after your head was hit against the steps coming down, that you got over to the post? Can you give any estimate of time? A. (By Mrs. Johnson) Well, I would think it was somewhere between four and five minutes, because it took them quite awhile--three minutes to get us off of the escalator, and then I went over to the post, and I eased myself to the floor, but I stayed there a long time. I stayed there about from ten to fifteen minutes without any help. I was screaming for an ambulance in every other word. Nobody paid much attention to me. Q. What happened after that? A. Well, then after that some--some men came over to lift me up off the floor, and then they guided me over, and one of them turned me around, and another one gave me a push in the chest towards the wheelchair, because I couldn't see anything, and then when I got into the wheelchair, why somebody else wheeled me somewhere to an elevator, a freight elevator that took me up some place, and then they wheeled me out of the freight elevator, and then everything was--nobody paid--touched me or anything all this time. Suddenly there was a man that grabbed my hands and held them down in front of me, and I blinked away the blood, and they were dirty hands; they were like he was working or something, and I saw a smock on him, and the smock looked kind of dirty to me, too. I told him he had no right to hold my hand; I wasn't violent. Nobody talked to me; nobody said anything. He just held my hands there. The nurse kept wadding something in here. (Indicating) She hurt me twice as bad as I was hurt before I think. Then, after she wadded my head up and everything, they took me by the arm and led me over to the bed, and they told me to get in. I thought, 'Well, gee whiz, if I lie down here, I'll never be able to get out of this bed. I'll bleed to death,' because the blood was gushing, and when this man pulled my hands down, the blood gushed out all over and made me blinder than ever. I couldn't see anything. And then, after they guided me over to the bed, I wouldn't get in, and, of course, they got kind of insistent, and--and--oh, then, I saw the white uniform of the nurse. I did not see her wrap my head up. I don't know who that was. She didn't get in front of me for me to see her. Then, the nurse came over to the bed over there beside me, and she said, 'You better get in bed. You'll be all right.' Well, I didn't want to get in bed, because this profuse bleeding was too much, and I could understand that I had better get standing up, or sitting up or something, because if I laid down, I would be really helpless. Then, she asked my name and telephone number--and she asked for my telephone number. I said, 'My husband isn't home. He won't be home until 5:00 o'clock.' So she went off to call him anyhow, and that took time, and all of the time I was leaning--Somebody else pushed a chair in back of me and leaned my head over on the bed. The bed was just all bloody. Again, I was losing blood all the time. The nurse came back again, and she said, 'Nobody answers at that telephone.' She said, 'Do you have any other...