Wood v. Postelthwaite

• Decision Date: 14 June 1973
• Docket Number: No. 42577
• Citation: Wood v. Postelthwaite, 510 P.2d 1109, 82 Wn.2d 387 (Wash. 1973)
• Parties: Sam L. WOOD and June R. Wood, his wife, Respondents, v. Richard POSTELTHWAITE and Jane Doe Postelthwaite, his wife, Petitioners.
• Court: Washington Supreme Court

Page 387

82 Wn.2d 387

510 P.2d 1109

Sam L. WOOD and June R. Wood, his wife, Respondents, v. Richard POSTELTHWAITE and Jane Doe Postelthwaite, his wife Petitioners.

No. 42577.

Supreme Court of Washington, En Banc.

June 14, 1973.

As Corrected on Denial of Rehearing Aug. 21, 1973.

Karr, Tuttle, Koch, Campbell, Mawer & Morrow, Seattle, for petitioners.

Jackson, Goldmark & Bender, Roger M. Leed, Dillon E. Jackson, Seattle, for respondents.

HUNTER, Associate Justice.

The defendant (petitioner), Richard Postelthwaite, seeks review of a decision of the Court of Appeals reversing a trial court decision in a personal injury action.

The single issue presented to us is whether the trial court properly instructed the jury as to the defense of volenti non fit injuria. After hearing the argument of counsel and considering the entire record, we find the Court of Appeals was correct in its holding on this issue in Wood v. Postelthwaite, 6 Wash.App. 885, 496 P.2d 988 (1972). The opinion therein states the facts, correctly sets forth the applicable law and is hereby approved and adopted as the opinion of this court.

During oral argument, the defendant raised certain issues concerning the exceptions to the proposed instructions by the plaintiff. However, the defendant failed to raise any of these issues in his petition for review. ¹ Issues not raised in a petition for review will not be considered by this court. In Zukowsky v. Brown, 79 Wash.2d 586, on page 588, 488 P.2d 269, on page 271 (1971), we stated:

We granted defendants' petition for review which challenges two of the conclusions of the Court of Appeals. However, plaintiffs' answer to that petition raises for review each assignment of error set forth in their opening brief in the Court of Appeals. By reason of this answer, we have considered all assignments of error presented there.

Inherent within this reasoning is the conclusion that this court will not consider matters not placed in issue in either the petition for review or the answer to the petition.

The very concept a petition for review calls for such a conclusion. Via a petition for review, the petitioner asks this court to review a decision of the Court of Appeals. In the petition, the petitioner assigns error to that portion of the opinion which he thinks is incorrect. We review these petitions, which are granted or denied, based upon the issues presented to us in the petition. The party opposing the petition for review prepares in accordance with the issues raised in the petition. To allow the petitioner to raise issues not addressed in his petition would be an injustice to the party opposing the petition and inconsistent with the rules on appeal. In no other area of appellate work do we allow, as a matter of course, one seeking review by this court to address issues in oral argument that are not addressed in his request for review. We recognize that ROA II--1 provides that 'No additional briefs shall be filed unless requested by the supreme court.' Thus, one might argue that this court hears all petitions for review de novo. However, the reason this provision is contained in ROA II--1 is to save the parties the additional expense of new briefs. Reprinting an argument would be an additional cost and appear to serve no useful purpose. The fact that we do not require new briefs as a matter of course when considering petitions for review does not relieve one of...