Pepperall v. City Park Transit Co.

• Decision Date: 09 October 1896
• Parties: PEPPERALL v. CITY PARK TRANSIT CO.
• Court: Washington Supreme Court

46 P. 407

15 Wash. 176

PEPPERALL v. CITY PARK TRANSIT CO.

Supreme Court of Washington

October 9, 1896

Dissenting opinion. For majority opinion, see 45 P. 743.

Per Dunbar, J., dissenting.

DUNBAR, J.

I dissent. I am forced to confess that the authorities are divided upon the main proposition discussed in the opinion and, indeed, it seems that, from such investigation as I have been able to make, the weight of authority sustains the majority decision, although there are some cases, and comparatively recent ones, too, which take the other view. If, however, the authorities were uniform in holding that, where a jury decides a question of law rightly which had been submitted to them erroneously by the court such rightful decision would be ground of error, I could not give my assent to such doctrine, because it seems to me to be absurd, and opposed to the plainest principles of common sense. The only object of an appeal to this court is to enable the court to determine whether a fair trial has been accorded to the litigants below. How can it be said that an error of law has been committed if the jury has decided the law correctly, notwithstanding the fact that it is the duty of the court to instruct the jury as to what the law is? The essential thing is that the case should be decided under the law, and, if the jury decides it under the law which this court deems to be correct, then the object of the law is met. If the court had instructed the jury-as we will presume for the purposes of this case that it did-erroneously, and the jury had followed the instructions of the court, the verdict must necessarily have been erroneous, and the case would have been reversed on appeal to this court. The respondent could not have corrected it below, nor taken any exceptions to it because it was in his favor. It is true that, under the theory of the law generally, and under the rule laid down by our constitution in particular, the trial judges shall declare the law. The language of the constitution is "declare the law." But it presumes that the law shall be correctly declared, or, in other words, that the law shall be declared, and not something which is not the law, or which this court finds not to be the law. It has been the uniform announcement by this court that, where error was committed by the court in its instructions to the jury, if it affirmatively appeared that no other verdict could have been rendered...