Reeves v. Wilson

• Decision Date: 10 January 1919
• Docket Number: 15038.
• Citation: 105 Wash. 318,177 P. 825
• Court: Washington Supreme Court
• Parties: REEVES v. WILSON.

177 P. 825

105 Wash. 318

REEVES v. WILSON.

No. 15038.

Supreme Court of Washington

January 10, 1919

Department 2.

Appeal from Superior Court, Spokane County; Hugo E. Oswald, Judge.

Action by W. B. Reeves against J. T. Wilson. Judgment for plaintiff and defendant appeals. Affirmed.

Zent &amp Powell, of Spokane, for appellant.

C. E H. Maloy, of Spokane, for respondent.

HOLCOMB J.

In the early part of 1916 respondent noticed in a paper appellant's advertisement guaranteeing dental work. Respondent went to appellant's office, and appellant, he claims, orally agreed that he would guarantee his work as being performed in a skillful, competent, and careful manner and to the satisfaction of respondent; that in event any of the work should prove unsatisfactory or to have been done in an unskillful, incompetent, or careless manner appellant would replace any work done, or repair and do over such work as might have been improperly performed. Appellant did certain work for respondent, including the placing of a three-tooth bridge upon his upper left bicuspids, with a dummy tooth anchored from one side. The other allegations of the complaint the court withdrew from the jury, thus leaving nothing involved in this action except matters relating to this particular bridge. Respondent claims that from May, 1916, after the work was performed, the bridge caused soreness, and he made immediate complaints to appellant, who informed him that it was a tenderness which he would have to get used to. The following summer, while respondent was in Seattle, he contracted blood poisoning in his hand, not attributable to the teeth, and returned to Spokane to be treated, but, not having serious trouble with his teeth, did not call on the appellant, or ask him to repair or replace any work under the terms of the agreement. After this blood poisoning occurred respondent lost weight, and had more serious trouble with his teeth. He returned to Spokane in the spring of 1917, called on the appellant twice, and claims that he demanded that the appellant replace or repair the bridge, but was refused. Appellant testified that respondent was violent, disorderly, and profane, and that he refused to talk with him until he would conduct himself in a proper manner. Respondent had paid appellant $30 for the dental work of placing a three-cap bridge in respondent's lower right jaw and a three-cap bridge in his upper left jaw. After the last altercation with appellant, respondent, went to Dr. Reed to have the bridge removed and his teeth treated. Respondent brought this action against appellant, which resulted in a verdict for $200 in his favor.

At the threshold we are confronted with a motion to dismiss the appeal for the reason that it was not taken within 90 days from the entry of judgment. It appears that the judgment was signed and filed on October 18, 1917. The order denying the motions for judgment notwithstanding the verdict and for a new trial was signed and filed with the clerk October 30, 1917. The Superior Court Journal for Tuesday, October 30, 1917, has the following:

'No. 54179. W. B. Reeves, Plaintiff, v. J. T. Wilson, Defendant. Order signed denying motion for new trial and for judgment notwithstanding the verdict and same signed as of the 16th of October.

'[Signed] ________, Judge.'

The motion for a new trial suspends the effect of the judgment until after the determination of the motion and filing of the order denying the motion. An appellant cannot be deprived of his right of appeal by the entry of a nunc pro tunc order. If this were not so, he could be deprived of his right of appeal by the court taking under advisement the determination of a motion for new trial for a period of 90 days or longer, and then entering a nunc pro tunc order. The motion to dismiss the appeal is denied.

Appellant assigns that the court erred: (1, 2) In denying appellant's motions for judgment notwithstanding the verdict, and for a new trial; (3, 5) in giving instructions Nos. 21 and 22; (4) in refusing to give defendant's requested instruction No. 6; (6) in denying appellant's motion to strike from the amended and supplemental complaint.

This case belongs to a different class from the cases of Lorenz v. Booth, 84 Wash. 550, 147 P. 31, and Dahl v. Wagner, 87 Wash. 492, 151 P. 1079, and is more nearly parallel to the case of Swanson v. Hood, 99 Wash. 506, 170 P. 135, where this court distinguished the two classes of cases as follows:

'But there is an obvious distinction between a claim of negligence in the choice of methods of treatment and a charge of negligence in the actual performance of the work or treatment actual performance of the work or treatment after

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