93 Wash. 274 | Wash. | 1916
Lead Opinion
Respondent was a lineman working for appellant near Pomeroy, Washington, in reconstruction of a telephone line. A pole which he had climbed broke and re
Appellant, in its answer, admits that the respondent was in the employ of appellant, denies all allegations of negligence, and affirmatively alleges the following: (1) That, on December 12, 1910, or three months after the accident, plaintiff settled, satisfied, and released all claims and demands arising out of the accident, for the sum of $135 then paid to him; (2) that the action was commenced more than three years after the cause of action accrued and is barred by the statute of limitations ; (3) that there was contributory negligence and fault on the part of the respondent; (4) that the respondent assumed the risk; (5) that the injury was caused by the negligence of a fellow servant. Respondent in reply alleges in respect to the release that, at the time of executing it, he was incapable of transacting business or knowing the effect of such an instrument because of his weakened mental condition, and that the instrument was obtained from him
Twenty-eight errors are assigned by appellant, and the printed abstract of the record comprises 752 pages. The errors assigned, however, invoke principally, and this opinion will deal only with, the questions of the running of the statute of limitations, of the validity of the release, of the refusing and giving of instructions to the jury, and of the ex-cessiveness of the verdict. There was a verdict for respondent for the sum of $24,000. Appellant unsuccessfully moved for a directed verdict in its favor, for judgment notwithstanding the verdict, and for a new trial.
As the action was not brought until January 12, 1914, the injury having occurred September 15, 1910, and approximately four months more than the period of the statute of limitations of such actions had run, and as the release is claimed to have been executed on December 12, 1910, within three months after the accident, it is unnecessary to discuss separately the question of the validity of the release and the tolling of the statute of limitations. They are co-ordinate and co-related. If respondent was insane for a period of time sufficient to toll the statute of limitations to within three years of the commencement of the suit, then the period of his insanity would cover the time of the execution of the release so that the same would not be binding upon respondent. And, conversely, if he was lucid and mentally competent at any time to transact ordinary business, the statutory period must start running from that time.
The court submitted to the jury three special interrogatories, the first of which was as to whether plaintiff executed the contract of settlement and release in question, to which the jury answered, “Yes.” The second interrogatory was: “If you answer the first question ‘Yes,’ did the plaintiff at the time of signing the same possess sufficient understanding-
The trial court correctly instructed the jury, in instruction five, that the burden of proof would be upon the plaintiff to show by clear and convincing evidence that, upon the day when the alleged injuries were sustained, plaintiff became and was insane and that he was incapable of transacting ordinary business, and that this condition of mind continued for a period of four months or until the 14th day of January, 1911.
The only testimony in behalf of respondent describing the condition of respondent immediately after the injury on September 15, 1910, was that of his brother James Roberts who was also a lineman working at the same place and time, who testified that, when respondent was placed in an automobile to be taken to Pomeroy for medical attention, respondent seemed to think he was having a joy ride. On the following night the witness went to Pomeroy and respondent looked distant and didn’t want to recognize him. Respondent didn’t sleep and wouldn’t let the witness sleep. Respondent stated that people were going to hang him. Woke witness and told him that somebody had gotten him out in the street and wanted to whip him, and wanted witness to go out in the street with him. Witness did so and found no one. Respondent kept continually awaking witness. When respondent was brought out to the camp again he made threats to attack the witness, constantly quarreling with him, although he had never been quarrelsome before; that respondent’s mind seemed blank; he was just crazy; he didn’t know what he was doing.
Respondent himself testified that the first thing he remembered after the pole fell was his being in the asylum in Steilacoom in 1913. He did not recollect any event or occurrence
“Mr. Thos. H. Elson, District Supt. of Plant, 508 Fraternal Bldg., Spokane. Oct. 9, 1910.
“Dear Sir: While in the employ of P. T. & T. Co. under Foreman McDonald at Pomeroy, Wn., was injured first part of Sept, by pole breaking off at top of ground when wires were off of pole ahead of me; the pole I was on snapped throwing me to the ground, cutting large gash over left eye, breaking small bones in left hand; I sprained both of my ankles; they took me to Pomeroy in an automobile and put me under doctor’s care where they left me five days then went back to camp, where I stayed ten days with the understanding that my time was to go on until I was able to go to work; came to my sister’s in Spokane, 29th day of Sept, and have been with her ever since; they have pay me up until 28th of Sept., when left; can get you doctor’s certificate as to my present condition or let the company’s doctors examine me; am willing at any time it may be convenient to you; now Mr. Elson I don’t want to have any trouble about this matter but I want what is right and justly my due, and I trust that you will, after making investigation and finding I have not misstated facts, see fit to continue me on pay roll until I am in condition to go to work, as my head has bothered me all the time but can not tell what will turn up, but wish to do the right thing, but if can not agree will see attorneys and see what I can do that way. Trusting to. hear from you soon, I remain,
“Most respectfully,
“(Signed) E. N. Roberts, Plummer, Idaho.”
It will be observed that this letter shows coherence and continuity of thought and reason, clearness of memory, and decisiveness of judgment. On November 11, 1910, respondent wrote another letter to the appellant which was equally intelligent, definite, decisive, and coherent, and in which he mentioned the time and place of the accident, the name of the foreman of the construction crew, and the name of the physician at Pomeroy who attended him, and requested that his claim be given attention. On about December 1, 1910, respondent and two of his brothers, one of whom was a line
The Talbotts, his sister and brother-in-law, testified that they did not call in a physician for respondent while he was in Spokane in October, 1910, nor after they went to the ranch in 1911, or any other time. Mrs. Talbott testified that she did not know of plaintiff’s writing any letters to the company or anybody connected with the company, in October,
After the close of appellant’s testimony, Mr. and Mrs. Talbott were recalled on rebuttal, and contradicted their previous testimony by testifying that Talbott, at the instance of his wife, drafted the letter of October 9, 1910, in their apartment in Spokane, and instructed respondent to copy it, and that respondent sat at a table across from Talbott and, without further assistance, instruction, or direction, copied the letter and Talbott mailed it; that as to the letter of November 11, Talbott drafted that letter and sent it to his wife to have her cause respondent to copy it at their ranch in Idaho. Mrs. Talbott testified to the same effect. It is peculiar as to the facts detailed in the first letter that James Roberts, brother of respondent, had not been in Spokane after the accident happened to respondent, and himself testified that he never saw his brother after he left the camp near Pomeroy until he saw him up at the ranch near Plummer, Idaho, in November, though Mrs. Talbott, his sister, testified
In the fall of 1912, he again worked for appellant, assisting a crew of line repairers for a few weeks near Lind, Washington, with apparent ability to perform the duties. On May 12, 1913, in Seattle, he was placed in jail for something and was found there by his brother-in-law, Talbott, who swore to a complaint of insanity against him. An inquiry was had, and on that day he Was committed to the asylum
“I charge you, as a matter of law, that, under the allegations of the complaint, you cannot find that the plaintiff is now insane or has been insane at any time since he left Steilacoom asylum, if you find he was ever in such asylum.”
This request was refused, to which exception was duly taken. Since the complaint alleges, “that by reason of said injuries plaintiff’s mind was affected and plaintiff became and was insane continuously from said time until his discharge from the asylum as hereinafter alleged,” and since plaintiff brought his suit as a competent person in his own name, this instruction, or one covering the matter in substance, should have been given. It was proper to be given for the reason that the jury might have considered respondent insane at the time of the trial, from his testimony and that of others, and thus enhanced the damages awarded. The point is not covered by any instruction given by the court.
Appellant further requested the court to instruct the jury as follows:
“If you find from the evidence in this case that the plaintiff was, at any time in the year 1913, in Steilacoom asylum, I charge you that such fact shall not be considered by you in determining whether or not the plaintiff was to any extent mentally deranged in the years 1910, 1911, or 1912. You shall not allow the fact that plaintiff was in Steilacoom asylum at any time during the year 1913, if you find it to be a fact, to influence your minds in any manner whatsoever in determining the mental condition or capacity of the plaintiff in 1910, 1911, or 1912. I also charge you that the physicians’ certificate or the answers to questions contained therein dated at Seattle in May, 1913, shall not be considered by you as evidence of any fact in issue in this case.”
“If insanity has once been established, then the presumption is that insanity continues until the contrary is established by the preponderance of the evidence.”
This instruction is proper where the allegation and the facts under the allegation show that the insanity is continuous and existing. But in this case the allegation was that the respondent was insane continuously until his discharge from the asylum. Respondent argues, however, that the complaint further alleged that, since the time of the injury, plaintiff’s physical and mental vigor has been destroyed by reason of said injuries, and he has been unable to do any work of any kind; that he will continue to suffer during the remainder of his life great physical and mental pain. These allegations are inconsistent and, under the instruction given by the court, would permit respondent to bring and maintain his action as a sane man and recover damages on the ground that he was insane.
It is contended by appellant that the introduction of the commitment papers in the insanity proceeding, which was excepted to, was erroneous. We think not. The proceedings were conformable to the law in such cases (Rem. 1915 Code, § 5953), and were a valid adjudication of his competency at that time. The commitment papers were competent to show the existence of insanity in 1913 from May 12 or thereabouts to August 4, and also the discharge of respondent as cured. Prior to the inquisition and adjudication of his insanity, the presumption was that he was sane up to the time prior thereto when he was shown to have become insane. The commitment papers include the physicians’ certificate and the answers to questions contained therein under their examination, and these were competent as tending to show upon what the physicians based their certificate. All of it was for the jury to weigh. Although it was ex parte, it was all competent as going to the question of insanity at that time, but not at any other time. Giles v. Hodge, 74 Wis. 360, 43 N. W. 163;
Appellant requested an instruction as to the effect of the statute of limitations, to the effect that, if there were any lucid interval in the mind of respondent at any time after the injury and at least up to January 12, 1911, during which lucid interval respondent was mentally capable of transacting any business, then the action would be barred under the statute and he could not recover any sum whatever; and to the further effect that the burden of proof is not on the defendant to show such mental capacity at any time during such period up to January 12, 1911, but upon the plaintiff to show such mental derangement or incapacity at all times from and including September 16,1910, to January 11, 1911, and to establish the same not only by a preponderance of evidence, but also by evidence clear and convincing. Instead thereof the court gave instruction numbered five, a part of which has been hereinbefore quoted, as to the effect of the statute of limitations and the degree of proof required on behalf of respondent to avoid the operation of the statute, and continued as follows:
“A person is presumed to be sane until he is proved to be otherwise, and that the burden is upon the person claiming insanity to prove it by clear and convincing evidence; but that when insanity of a fixed and settled nature is once established by such evidence, it is presumed to continue until it*287 is overturned by proof of sanity. You are, therefore, instructed that, if plaintiff established that he became and was insane on the day of the alleged injury, and such insanity was of a fixed and settled nature, it would be presumed that he continued insane until proven to be sane, and the burden would be upon the defendant to establish his subsequent sanity. Even though the plaintiff may have been insane on the day when injured, if it were established that he became and was sane on any subsequent day prior to January 14, 1911, then this action would be barred by the statute of limitations.”
This was consistent and it instructed the jury that, if it was established that, at any time, plaintiff had been sane prior to January 14, 1911, the action would be barred. The difference in dates of two days is not erroneous and, as suit was brought on January 12, 1914, and four calendar months after September 15, 1910, would end on January 14, 1911, the time calculation of his Honor was correct. The advice to the jury that “when insanity of a fixed and settled nature is once established by plaintiff by a preponderance of evidence and evidence that is clear and convincing ... it would be presumed that he continued insane until proven to be sane, and the burden would be upon the defendant to establish his subsequent sanity,” is also a correct statement of the law. 16 Am. & Eng. Ency. Law (2d ed.), 604; Rogers v. Walker, 6 Pa. St. 371, 47 Am. Dec. 470; Gingrich v. Rogers, 69 Neb. 527, 96 N. W. 156; In re Brown, 39 Wash. 160, 81 Pac. 552, 109 Am. St. 868, 1 L. R. A. (N. S.) 540; State ex rel. Thompson v. Snell, 46 Wash. 327, 89 Pac. 931, 9 L. R. A. (N. S.) 1191.
If insanity of a fixed and settled nature is once shown to exist in the actor, at a certain time, by evidence that is clear and convincing, it must be presumed to continue until a contrary state of sanity is made to appear by the adverse party. In the first place, the presumption of sanity has been overcome and insanity established by evidence clear and convincing. Undoubtedly the only correct rule would be that that
These last principles were not requested by appellant to be given the jury for their guidance, inasmuch, probably, as it was its contention that respondent was at all times sane during the issuable period. The instruction given by his Honor, so far as it went, and in the absence of further request, was correct.
Upon the question of negligence and assumed risk, we think the court correctly instructed the jury under the facts. Those questions were properly submitted to the jury for their solution. There was evidence on behalf of respondent tending to show negligence, and his contributory fault or assumption of risk was a question of fact for the jury under proper instructions. We have examined the instructions in relation thereto and consider them proper.
We consider the verdict, however, as grossly excessive and as necessarily given under the influence of passion and prejudice. Respondent was able to work at his usual wages in December, 1910, less than two months after his injury. He was twenty-eight or twenty-nine years of age. The permanent injuries which respondent under his evidence showed were an injured hand, some of the small bones of the left hand having been broken, a large gash over his left eye without any evidence of a broken bone, some injury to his ankles and linees of a temporary nature, an injury in the back of his head, and some impairment of sight in one eye, largely remediable by the use of proper glasses, and the possible, slight, temporary mental derangement, which became cured
Upon the whole case, for the errors in giving and refusing instructions and the excessiveness of the verdict, we are of the opinion that appellant did not have a fair trial, and that a new trial should be granted.
Reversed and remanded.
Parker, Ellis, and Chadwick, JJ., concur.
Dissenting Opinion
(dissenting) — The trial court should have directed a verdict for the defendant, because upon the whole evidence there can be no doubt that the plaintiff was perfectly sane when he executed the release. The testimony to the contrary, discredited as it was, is unworthy of serious consideration.
I concur upon the other points decided.
Morris, C. J., and Main, J., concur with Mount, J.
Dissenting Opinion
(dissenting) — The questions of fact were for the jury. There was no error in the instructions. I am of the opinion, however, that the verdict was excessive, but the remedy for this is leave to take judgment for a lesser sum, not a reversal in fofo. I therefore dissent from the judgment ordered.