Perrault v. Emporium Dept. Store Co.

• Decision Date: 16 January 1915
• Docket Number: 11941.
• Parties: PERRAULT v. EMPORIUM DEPARTMENT STORE CO.
• Court: Washington Supreme Court

145 P. 438

83 Wash. 578

PERRAULT v. EMPORIUM DEPARTMENT STORE CO.

No. 11941.

Supreme Court of Washington

January 16, 1915

Department 2. Appeal from Superior Court, Yakima County; Thos. E. Grady Judge.

Action by Florestine Perrault against the Emporium Department Store Company. From a judgment for plaintiff, defendant appeals. Affirmed.

See also, 71 Wash. 523, 128 P. 1049.

Englehart & Riggs, of North Yakima, for appellant.

John H Lynch, of North Yakima, for respondent.

ELLIS, J.

This is an action for damages suffered by the plaintiff in attempting to step into an elevator owned and operated by the defendant in its department store. The case is here for the second time on appeal. On the first trial the plaintiff recovered a judgment for $800. A new trial was granted on the ground that the damages awarded were so inadequate as to show that the jury in reaching the verdict was influenced by passion and prejudice. In the course of the first trial the defendant moved for a nonsuit, for a directed verdict, and for judgment non obstante. These motions were all overruled. The defendant's first appeal was from the orders denying all of these motions and from the order granting a new trial. On the first appeal no objection was made to its scope, and all of these orders of the trial court were reviewed and the order granting a new trial was affirmed. That affirmance necessarily included an affirmance of the other orders appealed from. This is apparent from the following language found in the opinion on the first appeal:

'The several motions of the defendant for a nonsuit, a directed verdict, and a judgment non obstante were denied and the motion of the plaintiff for a new trial on the ground of 'inadequate damages appearing to have been given under the influence of passion or prejudice was granted. The defendant has appealed. It concedes that, if the court was not in error in denying its several motions, the order granting a new trial was not an abuse of discretion. Its contentions are: (1) That it was not guilty of negligence and (2) that the respondent was guilty of contributory negligence materially contributing to and causing her injury, and hence that it incurred no liability.' Perrault v. Emporium Dept. Store Co., 71 Wash. 523, 524, 525, 128 P. 1049.

Reference is also made to that opinion for a statement of the evidence, to which it is only necessary to add that there was some evidence tending to show that the plaintiff entered the store for a matter of her won convenience, and neither made not attempted to make any purchase while there. There was also evidence that she refused for some time to submit to an operation advised by her physician, who also told her that the operation might produce a stiff knee, but that the danger of that result was not great. After taking treatment for a short time from an osteopathic physician, she finally underwent the operation at first advised. The result was satisfactory, though the knee at the time of the second trial was still weak and the limb slightly reduced in size.

On the second trial the plaintiff recovered a verdict for $1,500, for which amount and costs judgment was entered. Within the statutory time the defendant moved for a new trial upon the grounds of insufficiency of the evidence and errors in law. This motion was overruled. From the judgment and from the order denying a new trial the defendant prosecutes this appeal.

The appellant urges a reversal upon three grounds, namely: (1) That the evidence tends to show that the respondent was in the store as a mere license, and that the court should have given certain requested instructions covering that point; (2) that the court erred in refusing to give a requested instruction as to the duty of the respondent to have minimized her damages by earlier submitting to an operation; (3) that the court failed to instruct that the respondent in no event could recover more than compensatory damages. We may preface the consideration of these points by calling attention to the following facts which will materially affect their decision:

The pleadings on the second trial were identical with those on the first. The instructions were, in substance, the same, save a slight difference in the instruction touching the measure of damages, to which we shall presently advert. The evidence was in every material particular the same on the first trial as on the second, save that on the second trial it was probably more definite than on the first that the elevator boy was at his post at the time of the accident, holding the elevator door open as an invitation to the respondent to enter. If there was any other difference, the appellant has not attempted to point it out, and a careful examination of the record of both trials on our part has failed to reveal it. The appellant says there is nothing before this court showing that fact, but in their briefs both parties invite an examination of the record on the former appeal. Moreover, courts will take notice of their records touching prior proceedings in the same case. Hale v. Crown Columbia Pulp & Paper Co., 56 Wash. 236, 105 P. 480; O'Brien v. Washington Water Power Co., 79 Wash. 82, 139 P. 771; Hays v. Merc. Investment Co., 73 Wash. 586, 132 P. 406.

1. It is clear that the first point cannot be successfully invoked on this appeal. The question whether the respondent was in the store on business as an invitee or for her own pleasure as a mere licensee could only be material as bearing upon the extent of the appellant's duty to avoid causing her any injury while there; that is, as determining the degree of care imposed by law upon the appellant and as bearing upon the degree of care for her own safety incumbent upon the respondent. These were questions necessarily...