Rochester v. Seattle, R. & S. Ry. Co.

• Decision Date: 02 October 1913
• Citation: 75 Wash. 559,135 P. 209
• Court: Washington Supreme Court
• Parties: ROCHESTER v. SEATTLE, R. & S. RY. CO.

135 P. 209

75 Wash. 559

ROCHESTER v. SEATTLE, R. & S. RY. CO.

Supreme Court of Washington

October 2, 1913

Department 2. Appeal from Superior Court, King County; J. T. Ronald Judge.

Action by G. A. C. Rochester, as administrator of the estate of W C. Bell, deceased, against the Seattle, Renton & Southern Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed on conditions.

See also, 67 Wash. 545, 122 P. 23, 39 L. R. A. (N. S.) 1156.

Scott Calhoun, of Seattle, for appellant.

Peters & Powell, of Seattle, for respondent.

MAIN J.

This action was brought by G. A. C. Rochester, as administrator of the estate of W. C. Bell, deceased, for the purpose of recovering damages for the death of the deceased caused by the wrongful act of the defendant.

On April 30, 1910, W. C. Bell was killed in a collision which occurred on the street railway line owned by the defendant. Thereafter the plaintiff brought this action to recover damages for the benefit of the wife of the deceased and also for a minor son, W. Con Bell. Before the time of the trial the wife died, and the action was prosecuted for the benefit of the son only. Upon the trial the negligence of the defendant was admitted. The only question submitted to the jury was the amount of damages which should be awarded. The jury returned a verdict in the sum of $17,500. The defendant thereafter made and filed its motion for a new trial based upon all of the statutory grounds. The trial court upon consideration of the motion concluded that error had been committed in not limiting the amount of recovery to such damages as the surviving son would suffer prior to his majority and thereupon granted the motion. The order granting the new trial shows that the court considered all of the grounds stated in the motion and overruled and denied all of them except the one above stated. From this order the plaintiff appealed, and this court held that the instruction which the trial court believed to be erroneous and on account of which it granted the motion was correct and reversed the order granting a new trial and directed the superior court to enter a judgment upon the verdict. That decision is reported in 67 Wash. 545, 122 P. 23, 39 L. R. A. (N. S.) 1156. On April 29, 1912, the trial court, in conformity with the direction of this court, entered a judgment on the verdict in favor of the plaintiff for $17,500. From that judgment the present appeal is prosecuted. The respondent moves the court to dismiss this appeal for the reason that the judgment appealed from was entered by the superior court in obedience to the judgment or order of this court.

The general rule is that no appeal will lie from a judgment entered by the trial or subordinate court in accordance with a mandate or direction from the appellate or reviewing court. Cyc. vol. 2, p. 608; Krantz v. Rio Grande W. Ry Co., 13 Utah, 1, 43 P. 623, 32 L. R. A. 828; Heinlen v. Beans et al., 73 Cal. 240, 14 P. 855; Albin v. Seattle Elec. Co., 46 Wash. 420, 90 P. 435; State v. Boyce, 25 Wash. 422, 65 P. 763; Apex Transportation Co. v. Garbade, 32 Or. 582, 54 P. 882, 62 L. R. A. 513; Dubuque & P. R. Co. v. Litchfield, 1 Wall. 69, 17 L.Ed. 514; Gaines v. Caldwell, 148 U.S. 228, 13 S.Ct. 611, 37 L.Ed. 432; Kimpton v. Jubilee Mining Co., 22 Mont. 107, 55 P. 918.

In Krantz v. Rio Grande W. Ry. Co., supra, it is said: 'All the alleged errors now complained of occurred during the proceedings of the trial court before the motion for a new trial was heard, and there is no question made as to any errors having been committed in the proceedings subsequent to the mandate. Nor are we asked to review such proceedings. It is evident that this is an attempt to have another review of the rights of the parties, on the same record which was reviewed on the former appeal, when it was held that the plaintiff had the right to recover. Under such circumstances, an appeal from a judgment entered by an inferior court in pursuance of a mandate of the appellate court cannot be sustained; and this rule is not only in accordance with authority but is founded on reason and justice, for, if successive appeals were allowed on the same state of the record, there would be no end to litigation and appeals, and the courts themselves could be turned into instruments of injustice by an obstinate litigant.'

In cases where the subordinate or trial court upon motion has entered an order granting a new trial upon a specific ground and an appeal follows, the great weight of authority is that the party in whose favor the order was entered may, upon appeal therefrom by the adverse party, urge any ground in support of the order which was covered by the motion, and that the appellate or reviewing court, even though it be of the opinion that the order cannot be sustained upon the specific ground stated or reason given by the trial court, will not reverse the order if it can be sustained upon any legal ground. Nally v. McDonald, 77 Cal. 284, 19 P. 418; Sherwood et al. v. Kyle, 125 Cal. 652, 58 P. 270; Kaufman v. Maier, 94 Cal. 269 29 P. 481, 18 L. R. A. 124; Hewitt v. Steele, 118 Mo. 463, 24 S.W. 440; Shanklin v. Hall, 100 Cal. 26, 34 P. 636; Morrow v. St. Paul City R. Co., 65 Minn. 382, 67 N.W. 1002; Enc. Pl. & Pr. vol. 2, p. 373; Lovell v. Davis, 52 Mo.App. 347; Ittner v. Hughes, 133 Mo. 679, 34 S.W. 1112. The principle which runs through all of these cases is that where the trial court grants a motion for a new trial upon a specific ground, and there is an appeal therefrom, the reviewing court may consider all the grounds of the motion in determining the correctness of the ruling. This principle appears to us to be not only sound in reason but just in its practical operation. If the appellate court is limited in passing upon an appeal from an order granting a new trial to the ground stated in the order, and it should believe that ground untenable, then the order must be reversed, and, after the trial court has entered a judgment of reversal, a second...