Thornton v. Dow

• Decision Date: 26 November 1910
• Citation: 60 Wash. 622,111 P. 899
• Parties: THORNTON v. DOW et al.
• Court: Washington Supreme Court

111 P. 899

60 Wash. 622

THORNTON v. DOW et al.

Supreme Court of Washington

November 26, 1910

Department 2. Appeal from Superior Court, King County; Robert H Lindsay, Judge pro tem.

Action by Cecil Thornton, by Frank Thornton, his guardian ad litem against Matthew Dow and another, copartners as Matthew Dow &amp Co. From a judgment granting a new trial after verdict for defendants, they appeal. Reversed and remanded.

Shank & Smith, for appellants.

Reynolds, Ballinger & Hutson, for respondent.

DUNBAR J.

This is an action for personal injuries sustained by the plaintiff, against the defendants as contractors, who built the present state armory building for the state of Washington in the city of Seattle. The plaintiff alleged negligence in the construction of a balcony railing, constructed in such a way as to render the same dangerous, that it was dangerous, and that by reason of its frailty the plaintiff and others, while witnessing an athletic meet, were precipitated over the balcony railing and were injured. The defense was that the building was constructed in accordance with the plans and specifications; that prior to the date of the accident, which was May 6, 1909, the building had been turned over to the state through its agents; that the state had taken absolute possession of the building; and that the defendants had nothing whatever to do with giving or permitting the athletic entertainment at which the accident occurred. These were, in substance, the issues presented. The case was tried by a jury, who returned a verdict in favor of defendants. A motion for a new trial was interposed, and was granted, because, in the opinion of the court, the jury had disobeyed the instructions of the court in this: The court defined a nuisance to the jury, and instructed the jury that, if they found that this structure was a nuisance from the beginning, the question of occupancy cut no figure in the case, and that the defendants would be liable as the creators of such nuisance; and in order to make this effective, the following question was propounded to the jury for answer: 'At the time of the occurrence of the accident in question in this case, was the railing around the balcony in the drill hall of the armory, and particularly was that part of the railing on the east side of the drill hall, a nuisance, within the definition of a nuisance as contained in the instruction of the court?' The jury answered this question in the affirmative, but also found for the defendants. Deeming this a refusal on the part of the jury to follow the instructions of the court, the motion for a new trial was sustained; and from the granting of such motion this appeal is taken.

It is the contention of the respondent that, inasmuch as the special verdict should control the general finding, and the general finding is inconsistent with the special verdict, the general finding was properly set aside, and that it is not within the province of this court to enter into an investigation of the correctness or incorrectness of the instructions given by the court to the jury, for the reason that the instructions, whether right or wrong, were the law of the case. Counsel for respondent rely upon the case of Pepper-all v. City Park Transit Company, 15 Wash. 176, 45 P. 743, 46 P. 407, where, it must be confessed, this question was decided by this court in favor of such contention, and the doctrine announced that, although an instruction to the jury may have been wrongfully given, it was binding and conclusive upon the jury. This case was decided by a divided court, three judges concurring and two dissenting, and the case has been indorsed in a measure two or three times since. But it may not be amiss to say that it has been followed with some reluctance, and that this court as since constituted has not been satisfied with the rule there announced in its fullest application. In that opinion several cases were discussed by the court which undoubtedly sustain the conclusion reached, but there are other cases which hold to the contrary view; and it must conclusively appear that such a doctrine as this is opposed to the well-established rule, announced by this and other courts, that when it affirmatively appears that an error is not prejudicial, and could not have affected the result which was reached, and which ought to have been reached, the commission of such an error would not warrant a reversal of the judgment. In this case, if this judgment should be reversed because the jury did not follow the erroneous instruction on the part of the court, and the case should be sent back for a retrial for that reason, the court being instructed to remedy the error by giving a proper instruction, and the case should be tried again, and the same verdict rendered under such proper instruction, what benefit would accrue to either of the parties litigant? It is true that it is the duty of the judge under the provisions of the Constitution and statutes to declare the law; but this is on the theory and on the supposition that the law will be declared correctly. While inconveniences may arise by reason of the failure of the jury to implicitly follow the instructions as given by the court, if it can be clearly seen that such instructions were wrong, and that a case would have to be reversed by this court if the jury had obeyed such instructions, thereby depriving the litigant of a legal right, it would seem idle to put him to the expense of another trial to obtain a right which he had lost without any fault of his own.

In Thornburgh v. Mastin, 93 N.C. 259, it was held that, when a jury correctly decides a question of law, incorrectly left to them by the court, the verdict cures the error. That is exactly the proposition here. If the jury had followed the erroneous instruction of the court, on appeal this court would have cured the error by a reversal of the judgment. But it would have necessitated a circuity of action and additional expenses; and if we find in the investigation of the case here that the instruction was erroneous, but that it was not prejudicial, because the jury cured it, it seems to us that this is the short and sensible way out of the difficulty, and is in accordance with the trend of modern authority generally, to the effect that a judgment will not be reversed if it conclusively appears that it was not prejudicial in its results. In Thompson on Trials, § 1020, it is said: 'If the judge submits a question of law to the jury, and they decide it rightly, there is no ground of exception, since it would be absurd to reverse a judgment in order that the judge might decide what the jury rightly decided.' It is manifest that it would be just as absurd to reverse a judgment, in order that the jury might bring in the same verdict under a different instruction. This is attaching more importance to the machinery of the law than to the law itself, and imposing unnecessary costs and delays upon litigants, who are confessedly entitled to the judgments which are rendered. A judgment will not be reversed for intermediate errors, when the record upon the whole case shows it to be right on its merits. Whitworth v. Ballard, 56 Ind. 279.

It has been the uniform holding of this court that, where the whole record shows that no other judgment than the one that was rendered could properly be rendered, errors occurring during the trial become immaterial. A common instance is where a court renders a decision on some particular ground which is not tenable. In such case it has always been determined by this court that, if the judgment could be maintained on any ground, the reason assigned for the judgment or ruling would be immaterial. As was said in the case of Kane v. Dawson, 52 Wash. 411, 100 P. 837: 'The question before us is not whether the lower court arrived at a correct conclusion by an incorrect process of reasoning, but whether, considering all the evidence, its decision was the proper one to be entered'--the object of courts, and especially of appellate courts, being to see that the litigants have obtained their legal rights, which in a broad sense means, not a right to every intermediate order or ruling which may occur in the trial of the cause, but an ultimate right to which they are entitled under the facts and the actual law in the case. In consideration of these views, we are constrained to overrule the case of Pepperall v. City Part Transit Company, supra, and to hold, in conformity with the general principles announced by this court, that where we find that the verdict of the jury is sustained by the law, the verdict cures the erroneous instruction, and the judgment will not be reversed.

This conclusion renders it necessary, then, to enter into a determination of the question whether the instructions of the court were right; and in order to do this we must consider the nature of the structure, and the nature of the employment of the appellants. Sess. Laws Wash. 1907, c. 55, make an appropriation and provide for the erection of a state armory building, for the use of the national guard in the city of Seattle; provide for a commission, of which the adjutant general and others shall be members; that the commission shall choose a suitable site for the armory building, shall obtain proper architectural design and plans, and specifications and details in conformity with such plan and design, and secure the erection and completion of such armory building, conforming faithfully to such plan and design. The contract for this building was let to the appellants. A meeting was held on the 16th of April, 1909, and an inspection of the building was made, after which, on motion the armory building was accepted by the state, and final payment allowed. Some minor corrections were...