Kagele v. Frederick
| Decision Date | 02 October 1953 |
| Docket Number | No. 32317,32317 |
| Citation | 43 Wn.2d 410,261 P.2d 699 |
| Parties | KAGELE, v. FREDERICK et al. |
| Court | Washington Supreme Court |
George H. Freese, Ritzville, for appellants.
Miller, Miller & Jansen, Ritzville, McCallum & Zellmer, Davenport, for respondent.
This is an action for damages. Plaintiff was the victim of a savage and brutal beating administered by defendants. We will detail his injuries later. The jury returned a verdict for $11,410.58. Defendants appeal.
It is not necessary that we set forth the alleged causes of the fight. The pleadings and the evidence tendered the issue of self-defense. The verdict of the jury rejected it.
Appellants' first three assignments of error are: (1) that their separate demurrers to the complaint should have been sustained; (2) that a motion for separate trials should have been granted; and (3) that a motion to make the complaint more definite and certain should have been granted. All three assignments are argued upon the theory that defendants were not joint tort-feasors.
At the time appellants' demurrers and motions were presented to the trial court, the pleadings only were before it. The complaint alleged:
'That at said time and place, the above named defendants William Frederick and Rudolph Frederick, and each of them, acting together did wilfully, intentionally, violently and unlawfully assault the plaintiff * * *' (Italics ours.)
Nor is the evidence such that it supports appellants' theory. The evidence discloses (and the jury was entitled to believe) that appellant William Frederick attacked respondent first. His brother, Rudolph Frederick, joined the fray almost immediately. Thereafter, they acted as an assault team to accomplish a united purpose. Richard Kagele, respondent's son, who was rendered unconscious for a time when hit on the head by a rock, testified that when he regained consciousness,
Under circumstances such as these, it is not necessary that respondent allege and prove a conspiracy between the appellants in order to plead and prove a cause of action against appellants, jointly and severally.
'Except as stated in § 881 [], each of two or more persons whose tortious conduct is a legal cause of a harm to another is liable to the other for the entire harm.' Restatement, Torts, § 875.
The complaint alleges, and the evidence supports the conclusion, that appellants participated in the same assault committed at the same time at the same place, upon the same person. The first three assignments of error are not well taken.
Appellants submitted written interrogatories to respondent. RCW 5.04.020; Rem.Rev.Stat. § 1226. They were answered the day before trial, more than twenty days after service. RCW 5.04.030 [cf. Rem.Rev.Stat. § 1227]. Appellants moved to strike the complaint and to dismiss the action. RCW 5.04.060 [cf. Rem.Rev.Stat. § 1230]. No motion for a continuance was made. Prejudice was not claimed nor shown.
The statute (RCW 5.04.060, [cf. Rem.Rev.Stat. § 1230]) provides a penalty for refusal to answer interrogatories, not for delay in answering them. In Gostina v. Whitham, 1928, 145 Wash. 72, 73, 268 P. 132, this court said
'* * * that the striking of a complaint for failure to answer interrogatories is such a harsh remedy that it will not be resorted to except upon a clear showing of prejudice to the opposing party.'
We have examined the interrogatories and the answers. There is nothing in the record to indicate that appellants were prejudiced by the delay. The trial court did not abuse its discretion when it refused to strike the complaint.
One prospective juror stated that he had discussed the preparation of a will with one of the lawyers for respondent; that there was no unfinished business between them; that if he had a legal problem he would consult this lawyer; that, in his opinion, this former relationship would not prevent him from being a fair and impartial juror. Appellants' claim that the relationship of lawyer and client existed between the juror and the lawyer, is not borne out by the record.
In McCorkle v. Mallory, 1903, 30 Wash. 632, 638, 71 P. 186, 188, this court said:
'* * * where the attorney is not a party to the action, a client in other causes, who is otherwise qualified, may not be challenged for implied bias.'
A challenge of a juror for implied bias will not lie, simply because the juror and one of counsel are acquainted. Denial of the challenge was not an abuse of discretion.
Appellants assign error to the admission of evidende of the injuries sustained by Richard Kagele, son of respondent. Richard's participation in the fracas became an issue in the case when appellants alleged they acted in self-defense against respondent and his son. The evidence of what happened to Richard was admissible to refute the claim of self-defense. The jury was informed that no damages were sought for him. The evidence was within the issues of the case and its admission was not error.
Appellants assign error to a portion of instruction No. 1, to instrustion No. 23, and to the court's refusal to give appellants' requested instruction No. 9. These instructions and the requested instruction are not set forth in the briefs. Assignments of error 8 and 10 cannot be considered. Rule on Appeal 42(1)(f), 34A Wash.2d 45; State v. Green, 1951, 38 Wash.2d 240, 229 P.2d 318, 23 A.L.R.2d 1397; Lujan v. Santoya, 1952, 41 Wash.2d 499, 250 P.2d 543. In addition, no exception was taken to instruction No. 23. It became the law of the case. White v. Dept. of Labor and Industries, 1952, 41 Wash.2d 276, 248 P.2d 566.
Appellants assign error to the court's refusal to give requested instruction No. 8. We consider only that portion of the requested instruction which is set forth in the brief.
Appellants' counsel took exception to the court's refusal to give this instruction
'* * * because the Court had permitted testimony over objection of counsel as to the alleged injuries of Dick Kagele, who was not a party to this suit * * *.'
We have already pointed out that the testimony was properly admitted in evidence and that the jury had been informed that no damages were sought for the injuries suffered by Dick Kagele. The jury was instructed that 'the damages must be limited to those shown by the evidence' and that their verdict 'must not be arrived at through sympathy, passion, or prejudice.' While we have no quarrel with the contents of the requested instruction, it was not error for the trial court to refuse to give it. The jury had already been properly informed.
Appellants urge that the trial court erred 'in submitting the question of damages for loss of time to the jury.' The court instructed the jury:
(Part of Instruction No. 23.) (Italics ours.)
As to their possible verdict, the jury was instructed:
'You will be furnished with two forms of verdict, one for the plaintiff assessing the amount of his recovery, in which (if you find for the plaintiff) you will fill in the amount of the recovery in the blank space therefor which you will find in the form of verdict; and one for the defendants.' (Part of Instruction No. 26.)
The jury was further instructed that the respondent could recover only
'* * * for the whole result which would not have existed but for the said assault and battery.' (Part of Instruction No. 24.)
It is apparent that, should the jury find for respondent, they should return a general verdict. There was no...
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Redwine v. Fitzhugh
...excusing a prospective juror where the relation of attorney and client existed between a juror and counsel in the case. Kagele v. Frederick, 43 Wash.2d 410, 261 P.2d 699, and Stockdale v. Eads, Ky., 263 S.W.2d 133, held that as the relation of attorney and client did not exist at the time, ......
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...cases in which an itemized verdict was held to be surplusage, see McClain v. Collins (1955), D.C.App., 117 A.2d 125; Kagele v. Frederick (1953), 53 Wash.2d 410, 261 P.2d 699. Thus the inquiry must be limited to whether a general damage award of $80,000 was excessive. Indiana courts have ado......
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...to obey a discovery order, which refusal substantially prejudices the opponent's ability to prepare for trial. See Kagele v. Frederick, 43 Wash.2d 410, 261 P.2d 699 (1953); Cameron v. Boone, 62 Wash.2d 420, 383 P.2d 277 But the unexplained failure to furnish complete and meaningful answers ......
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...to the jury by instruction No. 12. This instruction was not excepted to and thus became the law of the case. Kagele v. Frederick, 1953, 43 Wash.2d 410, 416, 261 P.2d 699. The instruction directed the jury, if they found for the respondents, to allow 'such sum as will compensate them for the......