Winningham v. Philbrick

• Decision Date: 22 November 1909
• Citation: 56 Wash. 38,105 P. 144
• Court: Washington Supreme Court
• Parties: WINNINGHAM v. PHILBRICK.

105 P. 144

56 Wash. 38

WINNINGHAM v. PHILBRICK.

Supreme Court of Washington

November 22, 1909

Department 1. Appeal from Superior Court, King County; Wilson R. Gay Judge.

Action by John W. Winningham against W. W. Philbrick. From an order granting defendant a new trial conditionally, plaintiff appeals. Affirmed and remanded.

John H. Allen, for appellant.

Higgins Hall & Halverstadt, for respondent.

MORRIS J.

Each of the parties hereto is the patentee and owner of patents for cutter-heads and matcher-heads. The appellant brought the action, contending that the respondent had slandered his title by maliciously and falsely stating to divers persons that the Winningham head was an infringement upon the Philbrick head, and setting forth his damages. Respondent denied the charge of malice and falsity, admitted stating to different persons that the Winningham head was an infringement upon his patent, and set forth such infringement. Upon the trial a jury was called, and on January 26, 1909, a verdict was returned in favor of appellant in the sum of $4,000. Thereupon respondent moved for a new trial upon various grounds; one being that the verdict was excessive. The court in ruling upon this motion made an alternative order, granting a new trial unless the appellant would within five days file a waiver of all sums in excess of $452. There seems to have been some misunderstanding as to the language of this order, after its announcement by the court, and appellant filed a petition for a rehearing, which was denied, and on March 24th the court handed down and filed a memorandum decision, in which, after reciting the making of the previous order, the petition for a rehearing, and other matters, it rules 'that the petition for a rehearing is denied, and the original order granting a new trial, unless all sums above $452 shall be remitted, is allowed to stand as of this date.' The five days granted appellant to determine whether he would accept the $452 or submit to a new trial expired, and the record discloses no further action until April 5th, which was 12 days after the entry of the court's order, when appellant served notice of appeal from the order of the court 'granting the defendant a new trial herein.'

The errors assigned are: 'In directing a remission of $3,548 of the verdict'; and 'in granting the motion for a new trial upon refusal of plaintiff to make such remission.' In the briefs many interesting questions are discussed, which we will not inquire into, as, in our view the same are not properly before us, the jurisdiction of the court below being attacked upon the ground that, inasmuch as it was incumbent upon appellant before he could recover to establish the falsity of the charge, he must prove that his head was not an infringement upon the Philbrick head; and respondent contends that such a question can only be determined in the federal courts. It is likewise asserted that the communication was privileged, and that the court erred in permitting the verdict to stand in any amount because of insufficiency of the evidence. Respondent, however, has not appealed, and it has long since become the established rule in this court that we will not review any order or ruling made by the court below unless the appeal is presented by the party aggrieved. If therefore respondent desired this court to review the ruling of the court below upon the questions submitted in his brief and upon which the ruling below was adverse to him, he should have taken a cross-appeal, failing which the rulings thereon of the court below become the law of this case, and we are precluded from reviewing them. Rockford Shoe Co. v. Jacob, 6 Wash. 421, 33 P. 1057; Langert v. David, 14 Wash. 389, 44 P. 875; Tacoma v. Tacoma Light & Water Co., 16 Wash. 288, 47 P. 738 Phillips v. Reynolds,

20 Wash. 374, 55 P. 316, 72 Am. St. Rep. 107.

The only question before us upon this appeal is that suggested by appellant, that the court erred in granting a new trial. When appellant permitted the time fixed by the court, in which he must accept a reduction of his verdict or submit to a new trial, to elapse without accepting such reduction respondent's right to a new trial became absolute without any further order upon the part of the court, and such order was at the time of the taking of the appeal the only order of force and effect in the matter. It has long since been established that when, upon ruling upon a motion for a new trial, the court grants or refuses a new trial upon conditions set forth in the order, the compliance with the condition within the time fixed, or the failure to comply within the time fixed, operates as an absolute grant or denial of the new trial, and the status and rights of the parties become...