105 Wash. 694 | Wash. | 1919
The daughter of the respondent, it is alleged, was rendered sick by eating some dried beef purchased from the appellant company, the beef being unfit for food. The respondent asked to recover for medical services, the expense of care and nursing for his daughter, and the loss of her services during the period of her minority. The answer, after denying all the material allegations of the complaint, contained the affirmative allegation that the respondent, as guardian ad litem of his daughter, had thereto
In the former appeal, the question was determined as to whether “in the action tried in the Federal court there were included the items of medical treatment and care or nursing,” and we held that, so far as the pleadings were concerned, “the items of medical attendance and expenses for care and nursing were not included in the allegations of the complaint in the Federal court action and were in no form litigated in that action ’ ’; and held that, when a minor is injured, “two causes of action arise, in favor of the minor for pain and suffering and permanent injuries, and the other in favor of the parent for loss of services during minority and expenses of treatment. These actions may be joined or tried separately.” And that, where the minor is injured and action is brought by the parent as guardian ad Utem, and in that action recovery is sought, or there are litigated items of damage which belong to the parent, a subsequent action cannot be waged by the parent for the same items, and the parent is estopped from subsequently recover
When the case was remitted to the superior court, it proceeded to trial and the jury returned a verdict in favor of respondent, upon which judgment was entered, and from it this appeal was taken.
The appellant asserts its right to have had a judgment notwithstanding the verdict, claiming that the burden of proof was upon the plaintiff to prove that the damages claimed in this action were not litigated in the action tried in the Federal court, and that it was the duty of the court, rather than the jury, to pass on the sufficiency of the testimony introduced in regard to this question. Assuming that this latter claim is correct, it would avail the appellant nothing; for, under the testimony of the case, the court would have been compelled to have determined, as a matter of law, that the items sought to be recovered in this action were not litigated in the Federal court action, and to have so instructed the jury; and certainly the appellant cannot claim any prejudice from the fact that the court, instead of so instructing the jury, allowed the jury to determine, as a matter of fact, whether the same claims were involved in both actions. If there were an error it was in the appellant’s favor.
The contention as to where rested the burden of proof is answerable by a reference to the pleadings;
Objection is made to the verdict because the appellant is not satisfied that the damages were proved to have followed from the injury. The testimony, however, shows us that it was ample on which the jury could have based its verdict.
It is also claimed that the verdict is so excessive that it shows the result of prejudice and passion, and was assessed upon an erroneous basis. The verdict being for the sum of $900, it does not appear to us that there is merit in these contentions.
The other claims of error are equally without merit.
The judgment is affirmed.
Chadwick, C. J., Tolman, Mitchell, and Main, JJ., concur.
