Singer v. Metz Co.

• Decision Date: 05 April 1918
• Docket Number: 14446.
• Citation: 101 Wash. 67,171 P. 1032
• Court: Washington Supreme Court
• Parties: SINGER v. METZ CO.

171 P. 1032

101 Wash. 67

SINGER v. METZ CO.

No. 14446.

Supreme Court of Washington

April 5, 1918

Department 1. Appeal from Superior Court, King County; Mitchell Gilliam Judge.

Action by Louis Singer, an infant, by Fannie Singer, his guardian ad litem, against the Metz Company. Judgment for plaintiff, and defendant appeals. Reversed, with directions.

J Speed Smith and Henry Elliott, Jr., both of Seattle, for appellant.

Leopold M. Stern and J. W. Russell, both of Seattle, for respondent.

FULLERTON J.

The respondent, Louis Singer, was riding a motorcycle, proceeding north on one of the streets of the city of Seattle, and an employé of the appellant was driving an automobile south on the same street, each on the proper said of the street under the law of the road. The driver of the automobile turned to the left, crossing the course of the motorcycle at an intersecting street, which the two vehicles approached from opposite directions at about the same time. A collision occurred, in which the respondent was seriously injured. The respondent brought the present action for damages, based on the alleged negligence of the driver of the automobile in failing to conform to the city ordinance, requiring that vehicles turning from one street into another should make the turn around the center of the intersecting streets; the charge being that the driver 'cut the concur of the street,' or, in other words, made a turn short of the center of the intersection, instead of rounding that point. This was denied by the appellant, and the defense of contributory negligence set up. On submission to a jury a verdict was returned, awarding the respondent $2,500 damages and from the judgment thereon this appeal is prosecuted.

A motion to dismiss the appeal is made by the respondent on the ground that it is ineffectual because the appeal bond was filed some 83 days before the notice of appeal was served. Our statute provides that:

'An appeal in a civil action or proceeding shall become ineffectual for any purpose unless at or before the time when the notice of appeal is given or served, or within five days thereafter, an appeal bond to the adverse party * * * be filed with the clerk of the superior court.' Rem. Code, § 1721.

It appears that the notice of appeal was regularly given within the statutory time. The statute requiring an appeal bond, it will be noticed, permits it to be filed before the time when the notice of appeal is given or served, and contains no limitation upon the extent of such antecedent period of time. Laurendeau v. Fugelli, 16 Wash. 367, 47 P. 759, is cited by respondent in support of his contention that the filing of the bond was premature, but it will be noted that our holding in that case is based on the fact that the appeal bond was filed prior to entry of judgment, as well as prior to the notice of appeal. Under the statute then in force (Laws 1891, p. 342, § 6), the bond was required to be filed within five days after notice of appeal.

The respondent also urges as a ground for the dismissal of the appeal that the appellant's abstract of the record fails to comply with the statutes and rules of court. But this is not a ground for the dismissal of an appeal in the first instance. Under section 1730-6 of the Code (Rem.) the appellant must be given an opportunity to amend or supplement the abstract if it is found deficient, and the abstract stricken only after the opportunity is given and a refusal is made to supplement or amend. No order of the court for amendment of the abstract having been made, the motion for dismissal on the ground of its insufficiency is not well founded.

A motion is likewise made to strike the abstract of record on the grounds that the title page does not disclose the court and judge before whom the cause was tried, nor the names and addresses of the attorneys; that the pleadings are set out in full instead of being abstracted; and that portions of the evidence and the whole of the instructions are omitted. We find in this no sufficient ground for striking the abstract. The title page is capable of amendment. The rule does not exact the statement of the pleadings in substance, but permits literal copies if the litigant deem them essential to show error. As to omissions of evidence and instructions, the statute and rules of court require the incorporation of such matters only as are deemed necessary to show the errors involved. Provision is made for the filing of a supplemental abstract by opposing counsel covering matters omitted and deemed essential to correct or supplement the original abstract, and ordinarily this is the sole remedy. But aside from this, ample remedies are provided for amending insufficient abstracts other than the striking them from the record on appeal, and they will not be stricken until these remedies are resorted to without success. The motions are denied.

The appellant first asserts that it was entitled to a directed verdict, both at the close of respondent's evidence and at the conclusion of all the evidence, and to judgment notwithstanding verdict, on the grounds that the evidence failed to show negligence on its part, that it did show contributory negligence on the part of ...