Ogilvie v. Hong, 24802.

• Decision Date: 27 November 1933
• Docket Number: 24802.
• Parties: OGILVIE et al. v. HONG et al.
• Court: Washington Supreme Court

27 P.2d 141

175 Wash. 209

OGILVIE et al. v. HONG et al.

No. 24802.

Supreme Court of Washington

November 27, 1933

Department 2.

Appeal from Superior Court, Pierce County; Fred G. Remann, Judge.

Action by Betty A. Ogilvie and another, executrices of the estate of Jacob M. Lieby, deceased, against Nelson R. Hong and others. From a judgment for defendants, plaintiffs appeal.

Affirmed.

Dwinell & McCoy, of Longview, and Henry S Westbrook, of Portland, Or., for appellants.

Ellis &amp Evans, of Tacoma, and Wright, Jones & Bronson, of Seattle for respondents.

TOLMAN Justice.

This is an action brought by the personal representatives of Jacob M Lieby, deceased, to recover for his wrongful death.

The deceased, while walking across an arterial highway in the city of Tacoma, came into contact with or was struck by an automobile driven by defendant Nelson R. Hong, and then received the injuries from which he later died.

The complaint charges negligence on the part of Hong in a number of particulars, and charges that he was then employed by the defendant Tribune Publishing Company and was acting in the performance of the duties of that employment and within its scope at the time of the accident.

The case was tried to a jury. At the close of plaintiffs' case, on motion, the court dismissed the Tribune Publishing Company from the case. The issues as to Hong and the community composed of Hong and wife were submitted to the jury, and a verdict for the defendants was rendered. A judgment on the verdict followed.

The plaintiffs appealing assign as error the granting of the nonsuit as to the Tribune Publishing Company; that the court omitted and refused to declare the law of the case to the jury; that certain instructions given were erroneous; that evidence was improperly admitted; and that it was error to deny the plaintiffs' motion for a new trial and to enter judgment on the verdict. Some of these assignments are stressed and others are given but little attention in the brief or in the oral argument. We shall discuss first those matters upon which appellant seems to place the most reliance and follow our own order rather than the order in which the errors are assigned.

1. The first subject discussed is entitled, 'the verdict is contrary to the evidence.' We have read the testimony with care, have applied to it to the best of our ability the careful analysis and reasoning of the appellants' brief and while we can see very clearly how the jury might have reached a different verdict, yet, still the fact remains that the evidence was seriously in conflict, that inferences might be drawn either way on vital points, and since the trial court, who saw and heard the witnesses, refused to grant the motion for a new trial, it is not within our province to hold that he abused his discretion or otherwise erred in that ruling.

2. Perhaps the most seriously argued assignment is that charging that by his omissions the trial court failed to perform the duty required of him by section 16, art. 4, of the state Constitution, and by subdivision 4 of section 339, Rem. Rev. Stat.

It appears that the parties submitted to the court, at the proper time under the rules, their proposed and requested instructions. The court considered these requests, and with the aid thus given him prepared his written instructions, which he gave to the jury as the statute directs. Immediately at the close of the charge thus given to the jury the following occurred:

'Mr. Dwinell: If it please the court, the instructions having been read to the jury and arguments not yet made, I wish to request the court to instruct on the following propositions, we having assumed that the court would instruct as to the rules of law relative to the legal rate of speed on 'G' Street at the time of the accident in question; also relative to the duty of the defendant to keep within the speed limit provided by the statute and by the ordinance; and upon the right of the decedent to assume that defendant Hong was operating his car in a lawful manner, and upon the duty of Hong toward the decedent under the circumstances.

'The Court: The request will be denied on the ground that it did not come properly or within the time and no such instructions were prepared and given to the court, and there is no duty upon the court to provide instructions for either the plaintiff or the defendant, and that the request comes too late. Exception allowed.'

It is apparent from this record that what is here complained of was nondirection and not misdirection. The general rules of the superior court (rule 12), and the general rules of practice governing procedure in courts of record (Rem. Rev. Stat. § 308-4 and § 308-6), clearly place upon counsel the duty of preparing, reducing to writing, and requesting such instructions as are deemed material at a reasonable time to permit of consideration by the court and by opposing counsel and the rules and the statute also provide for the taking of exceptions so as to obtain a review of an adverse ruling. Not having prepared and presented any requested instructions covering these matters at a time when the court could give them consideration, but by his motion after the charge had been given, counsel perhaps unwittingly and unintentionally called upon the court to act offhand and without preparation or consideration in the delicate matter of defining the law applicable to certain phases of the case. To countenance that practice would be not only to encourage and invite error, but in many if not most instances it would make error inevitable. Judges are but men with all of the usual human limitations, and trial judges work under a time...