Smith v. Ernst Hardware Co.

• Decision Date: 20 December 1962
• Docket Number: No. 36254,36254
• Court: Washington Supreme Court
• Parties: Phyllis SMITH and Robert L. Smith, Jr., her husband, Appellants, v. ERNST HARDWARE COMPANY, Respondent.

Page 75

61 Wn.2d 75

377 P.2d 258

Phyllis SMITH and Robert L. Smith, Jr., her husband, Appellants, v. ERNST HARDWARE COMPANY, Respondent.

No. 36254.

Supreme Court of Washington, Department 2.

Dec. 20, 1962.

Rehearing Denied Feb. 11, 1963.

Roy E. Jackson and Daniel G. Goodwin, Seattle, for appellants.

Lycette, Diamond & Sylvester, Martin L. Wolf and Ralph M. Bremer, Seattle, for respondent.

OTT, Judge.

Phyllis Smith was injured July 14, 1959, while making a purchase in the Ernst Hardware Company store at Northgate in Seattle, when a box containing a light fixture fell and struck her head.

The community of Phyllis Smith and Robert L. Smitht, Jr., her husband, commenced this action against the Ernst Hardware Company to recover for her damages. Phyllis Smith will be referred to hereinafter as though she were the sole plaintiff.

At the trial, the defendant admitted liability; therefore, the only issue submitted to the jury was the amount of the damages. The jury returned a verdict for the plaintiff in the sum of $15,000. Thereafter, the court granted a new trial for the following reasons:

'* * * the court erred in failing to remove from the jury's consideration any claim by plaintiff as to the alleged sinus condition as related to this accident, and further, that the court erred in not submitting defendant's additional Instruction 'A' to the jury withdrawing the sinus condition from the jury's consideration. Because of this, the verdict was excessive and substantial justice was not done to the defendant by failing to submit their requested Instruction 'A'.

'The court has further considered the affidavit filed herein relative to one of the jurors, Leo Sundgren, and finds that the said affidavit, granted it be true, would not be sufficient grounds alone for granting a new trial to the defendant.'

The trial court, believing that the erroneous evidence caused the jury to increase its verdict by $5,000, granted the new trial unless the plaintiff would accept a judgment in the sum of $10,000. The plaintiff did not accept the reduction. The court thereupon granted a new trial for the reasons above indicated. The plaintiff has appealed.

Did the court err in permitting the jury to consider, as an element in its award for damages, whether appellant's sinus condition was proximately caused or aggravated by the accident?

Appellant's medical testimony in this regard was that of Dr. Carl E. Maas, who testified that, when appellant related to him the history of her sinus condition, she stated that it did not exist before the accident; that, six months thereafter, she went to the hospital for treatment of her injuries and caught cold while in the hospital, and that, 'In this indirect manner only,' the sinus condition was a result of the accident. The doctor's deposition was as follows:

'I must qualify my opinion somewhat. When this patient came to me, she had a new condition that as I found in looking at my records as long that as I have on her, she has never had before. That of definite right frontal headache pain and profuse purulent drainage from the right frontal, and swelling around her right eye and pressure on the right eye. This was new and different from what I have treated on her a multitude of times previously. As to the relationship to her accident, I can only base it on this fact that it was new, plus the fact that the patient related to me that while she was in the hospital and receiving the aforementioned hot packs and that she felt to a certain extent she was left exposed a few times, underwent a chill and sustained a severe cold, and it was following this that she feels that this right frontal sinus condition developed, because the symptoms began at that time following this chill and exposure. In this indirect manner only can I blame her sinusitis onto the accident.'

Appellant's testimony in this respect was as follows:

'Q. All right. Now when you came out of the hospital, you say, on January 18 of 1960, what was your condition at that time? How did you feel? Had you improved? Had the hospital treatment helped you? A. Well, it is hard to say at the beginning. I was very ill when I came out of that Providence Hospital. Several days before I left this extreme pain came in my forehead up here and when I came out of that hospital or while I was in the hospital I knew what had happened to me. It was the wool and the nurses tried to help me. They had nothing in the hospital but wool blankets and, like I say, when I came out of the hospital I was very ill, and besides this trouble I had, my nerves were just absolutely shot. So, I couldn't do anything. My mother had to stay and help me. * * *

'Q. And then what did Doctor--What did you tell Doctor Maas was your trouble when you went to him? A. Well, I told him that I had been wrapped in these, in this wool in the hospital and I told him I was just a mess and had to be helped out. So after he got me feeling--well, again he had me take the--what do they call it?--allergy extract where you take the shots. I was so afraid it could happen to me again if I was put in the hospital.'

Appellant asserts that a causal relationship between the accident and her sinus condition was established by her testimony. We agree with the trial court that appellant's testimony did not establish that she contracted a cold while in the hospital.

Appellant asserts that, assuming that her testimony did not establish a causal relationship between the accident and the sinus condition, causal relationship was established by the doctor's answer to a hypothetical question, in which he related that the appellant had told him s...