Peddicord v. Lieser

• Decision Date: 20 August 1940
• Docket Number: 27947.
• Citation: Peddicord v. Lieser, 105 P.2d 5, 5 Wn.2d 190 (Wash. 1940)
• Parties: PEDDICORD v. LIESER.
• Court: Washington Supreme Court

105 P.2d 5

5 Wn.2d 190

PEDDICORD v. LIESER.

No. 27947.

Supreme Court of Washington

August 20, 1940

Department 2.

Suit by William C. Peddicord against Dr. Herbert Lieser to recover damages for alleged malpractice by the defendant. From the judgment, the defendant appeals, and the plaintiff cross-appeals.

Judgment reserved, with direction to dismiss the action.

Appeal from Superior Court, Clark County; Charles W. Hall, judge.

Senn &amp Recken, of Portland, Or., and McMullen & Snider, of Vancouver, for appellant.

Louis Schaefer, of Vancouver, and Wm. P. Lord and T. Walter Gillard, both of Portland, Or., for respondent.

STEINERT Justice.

Plaintiff brought suit to recover damages for alleged malpractice by a physician and surgeon. The complaint alleged that as a result of the explosion of a household refrigerator certain chemicals and gases known as sulphur dioxide were discharged against the body and into the eyes of plaintiff, and that, in the emergency thus created, defendant was called to treat plaintiff's injuries. The charges of negligence against defendant, as alleged in the complaint were: (1) Failure to make a proper and careful diagnosis of plaintiff's condition; (2) failure to use reasonable skill and care in treating plaintiff, particularly in failing to take immediate steps to counteract the effect of the chemicals and gases; (3) failure to apply palliatives to relieve plaintiff's pain and suffering; and (4) abandoning plaintiff at a time when he was in need of further care and attention. The complaint further alleged that, as a direct and proximate result of defendant's negligence plaintiff not only suffered excruciating pain, but also became totally and permanently blind. The allegations of negligence were denied by defendant. Trial was had Before a jury, and at the conclusion of the evidence the trial court denied defendant's motion for a directed verdict, but granted his motion to withdraw from the jury the issue of defendant's negligence as a contributing cause of plaintiff's blindness. The case was then submitted to the jury solely upon the issues of defendant's negligence as a proximate, or contributing, cause of plaintiff's pain and suffering, and of the amount of damages thereby sustained. The jury returned a verdict for plaintiff in the amount of $6,500. On defendant's motion for judgment notwithstanding the verdict or, in the alternative, for a new trial, the court entered an order granting a new trial unless plaintiff should consent to a reduction of the verdict to $4,000. Plaintiff filed his consent to such reduction, and a judgment in the reduced amount was thereupon entered. From that judgment, defendant appealed, and, according to the respective briefs, plaintiff cross-appealed. We shall hereinafter refer to defendant as appellant, and to plaintiff as respondent.

Appellant has filed in this court a motion to dismiss respondent's cross-appeal on the ground that certain legal requirements have not been met.

The judgment was entered on November 21, 1939. According to appellant's brief in support of his motion, the only notice of cross-appeal served upon appellant was a notice served December 20, 1939, to the effect that respondent appealed from the order made by the court, during the course of the trial, withdrawing from the jury the question of damages for loss of eyesight. Respondent has filed no brief in opposition to the motion, and has not otherwise advised us regarding the steps taken by him in perfecting a cross-appeal. Assuming that the order in question was an appealable one, we are, nevertheless, governed by, and can look only to, the record Before us in determining whether or not a cross-appeal was properly taken and perfected by respondent.

The transcript of the proceedings, filed in this court, does not disclose that respondent ever served or filed any notice of cross-appeal, as required by Rule V, Rules of the Supreme Court (193 Wash. 4-a), and Rem.Rev.Stat. § 1719, or ever filed an appeal bond, as required by Rules V and VI, and Rem.Rev.Stat. §§ 1721 and 1722.

The giving of a notice of appeal, or cross-appeal, as required by Rule V and Rem.Rev.Stat. § 1719, is jurisdictional. Metropolitan Club v. Massachusetts Bonding & Ins. Co., 127 Wash. 320, 220 P. 818; Franklin v. Knox, 157 Wash. 349, 288 P. 924; Hibbard & Co. v. Morton, 184 Wash. 569, 52 P.2d 313; Hart v. Crowell, 198 Wash. 77, 87 P.2d 105; Isom v. Olympia Oil & Wood Products Co., 200 Wash. 642, 94 P.2d 482.

Likewise, the filing of a bond on appeal, as required by Rules V and VI, and Rem.Rev.Stat. §§ 1721 and 1722, is jurisdictional. Hart v. Crowell, 198 Wash. 77, 87 P.2d 105; Public Utility Dist. No. 1 v. Girard, 198 Wash. 149, 87 P.2d 287.

Since respondent did not comply with those jurisdictional requirements, his cross-appeal, if any there was, must be dismissed.

However, despite his failure to perfect a cross-appeal, respondent contends in his brief that the damages awarded by the jury for pain and suffering only, which was the sole issue submitted by the trial court to the jury, were not excessive, and that therefore the verdict should be reinstated. The presentation of that question upon the appeal perfected by appellant did not require the formality of a cross-appeal by respondent. Rem.Rev.Stat. (Sup.), § 399-1, provides: 'If the trial court shall, upon a motion for new trial, find the damages awarded by a jury to be so excessive or inadequate as unmistakably to indicate that the amount thereof must have been the result of passion or prejudice, the trial court may order a new trial or may enter an order providing for a new trial unless the party adversely affected shall consent to a reduction or increase of such verdict, and if such party shall file such consent and the opposite party shall thereafter appeal from the judgment entered, the party who shall have filed such consent shall not be bound thereby, but upon such appeal the supreme court shall, without the necessity of a formal cross-appeal, review de novo the action of the trial court in requiring such reduction or increase, and there shall be a presumption that the amount of damages awarded by the verdict of the jury was correct and such amount shall prevail, unless the supreme court shall find from the record that the damages awarded in such verdict by the jury were so excessive or so inadequate as unmistakably to indicate that the amount of the verdict must have been the result of passion or prejudice.'

Under the mandate of that statute, this court would be required to review the order reducing the amount of the verdict were it not for the fact that our decision on a controlling issue herein eliminates all questions relative to the amount of the damages. For that reason only, we forego consideration and determination of the justice or validity of the order reducing the amount of the verdict.

The primary question in this case is whether or not respondent's pain and suffering were, either wholly or in part, proximately caused by negligence on the part of appellant. A proper consideration of that question requires, of course, a knowledge of the underlying factual situation.

Respondent, nineteen years of age, was living in a house located on the United States Army reservation at Vancouver, Washington, where his father was a civilian employee. At about eleven o'clock in the morning of the day of the accident, respondent, who was then alone in the house, was endeavoring to repair a defective electric refrigerator, in which the chemical used as a refrigerant was sulphur dioxide. Respondent had only a slight knowledge of how the refrigerator operated, and no knowledge of the kind of refrigerant contained therein. In the course of his efforts to make the repair, he shook the refrigerator, and then, by means of a screwdriver, 'removed the plate on the front of the machine where the ice cubes were and began to shake it some more.' An explosion followed, as the result of which, according to respondent's testimony, the refrigerant was ejected with great force against his body in the region of the stomach. Covering his eyes with his hands, respondent immediately ran outdoors. In the front yard, he met his younger step-brother, of whom he requested that a doctor be summoned at once.

The family physician was called by telephone, but he, being unable to come, suggested the name of appellant, who was a physician and surgeon engaged in general practice. Appellant, in response to a telephone call, went immediately to respondent's home, arriving there within five or ten minutes, or about fifteen minutes after the accident had occurred. In the meantime, the step-brother had, at respondent's request, procured a pan of water and a cloth, and with these respondent fashioned a wet compress, and applied it over his eyes. On the arrival of appellant, respondent was on his hands and knees, holding the wet bandage in place.

Respondent's testimony as to what occurred during the doctor's visit was as follows: 'He [the doctor] inquired as to what had happened, and, the best I could, I explained that the refrigerator had blown up, and that I believed that it contained ammonia, and asked him what I should do. He informed me that I should stay outside in the fresh air and sunlight for a couple of hours and I would be all right, as good as I ever was; that I was getting my desserts for monkeying around that refrigerator. * * * He left [the doctor had gone into the house to examine the refrigerator] and then he soon returned and informed me that he didn't think it was ammonia in the refrigerator, that he thought it was some other type of gas which he didn't express the name of didn't seem to know exactly what. I asked him then if he would not look at my eyes, and h...