Johnson v. Marshall Field & Co.

478 P.2d 735, 78 Wash. 2d 609, 1970 Wash. LEXIS 338
CourtWashington Supreme Court
DecidedDecember 24, 1970
Docket41479
StatusPublished
Cited by14 cases

This text of 478 P.2d 735 (Johnson v. Marshall Field & Co.) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Johnson v. Marshall Field & Co., 478 P.2d 735, 78 Wash. 2d 609, 1970 Wash. LEXIS 338 (Wash. 1970).

Opinions

McGovern, J.

February 16, 1970, this court granted plaintiffs’ petition to review a decision of the state Court of Appeals, which had affirmed the trial court in this matter. See 1 Wn. App. 655, 463 P.2d 645 (1969).

The record reveals the following situation. In their amended complaint, plaintiffs alleged that the wife, Willa-belle Johnson, while a customer in defendant’s store, was riding on an escalator and was injured through defendant’s negligence. Plaintiffs also claimed that after the escalator was stopped, Mrs. Johnson was not given proper care and attention by defendant’s employees, although she was in fear of bleeding to death and was begging for help. The prayer of the complaint was for $60,000 general damages and $1,500 special damages.

Several months prior to the trial, plaintiffs filed a notice of trial amendment which stated:

Please Further Take Notice that the plaintiff will insert a separate paragraph listing the negligence of defendant, Marshall Field & Co., d/b/a Frederick & Nelson, a Washington corporation, in addition to the negligence which was the proximate cause of the accident on the escalator in failing to use proper and reasonable care of the injured plaintiff after the accident as follows:
1. In failing to immediately call a Doctor, although literally dozens were available within a few hundred feet.
2. In failing to use proper care in giving first aid due to the wounds of plaintiff and exposing the plaintiff to untrained personnel who caused the plaintiff severe pain by jabbing her opened scalp and exposed skull.
3. In failing to immediately call an ambulance, after refusing to call a Doctor and in treating plaintiff discourteously and inhumanly thereby rendering her more nervous and making her hysterical, each of which acts of negligence contributed to the pain and agony of the plaintiff and to her disability, both temporary and permanent.

[611]*611After trial, the jury returned the following verdict:

We, the jury in the above-entitled cause, do find for the plaintiffs in the sum of $ 0 as to their first cause of action, and in the sum of $20,000 as to their second cause of action.

Defendant thereafter moved for judgment n.o.v. or, in the alternative, for a new trial on eight of the nine grounds stated in CR 59. The motion was argued on May 26, 1967, and again on September 8, 1967. On each occasion the trial court orally stated its reasons for its decision to grant a new trial on the second cause of action unless the plaintiffs within 10 days thereafter elected to accept a reduced award of $2,500.

October 24, 1967, the trial court entered its order granting defendant a new trial unless the plaintiffs should consent to a reduction of the verdict from $20,000 to $2,500. Plaintiffs elected not to consent to the trial court’s reduction of the verdict and appealed from its order conditionally granting a new trial as to the second cause of action. The Court of Appeals affirmed the action of the trial court. We, however, reverse.

Plaintiffs first challenge the authority of the trial court to grant the defendant a new trial upon the grounds of passion or prejudice, RCW 4.76, and under the governing Civil Rules for Superior Court, CR 59(f), formerly Rules of Pleading, Practice and Procedure 59.04W.

While the order of October 24, 1967, which granted the defendants a new trial on the second cause of action did not specifically state whether the order was based “upon the record or upon facts and circumstances outside the record which cannot be made a part thereof”, as required by CR 59(f), the record otherwise indicates that it was based upon matters in the record. We treat it accordingly and find that the assignment of error has merit.

Despite the trial court’s general statement that “the amount of the award indicates passion and prejudice”, other statements by the court clearly indicate that passion or prejudice did not result from anything that may have [612]*612occurred during the course of the trial. The trial judge said:

Now, it would be difficult for me to say and perhaps impossible — I must be fair to Mrs. Johnson — probably impossible for me to say that twenty thousand dollars is so excessive as to unmistakably indicate passion and prejudice . . .
. . . I think that in fairness I must say that there was nothing in the trial or argument to the jury that was in any way subject to criticism or that was designed to encourage passion or prejudice.

Our extensive examination of the record also fails to disclose anything that occurred during the course of the trial that might reasonably be said to have unfairly resulted in passion or prejudice detrimental to the defendant’s cause, nor has counsel for defendants directed our attention to any such prejudicial matter. The trial court therefore committed error in granting a new trial on the grounds of passion or prejudice in the record.

Plaintiffs’ remaining assignments of error challenge the trial court’s second basis for granting a new trial, i.e., the failure of substantial justice because of an excessive verdict not justified by the evidence. The trial court’s order stated:

The amount of the award was such that the court was and is shocked by the amount. Such an amount cannot be justified. It is a gross miscarriage of justice. There was no testimony by any medical witness that the care and attention subsequent to the accident in any way contributed to the injuries or inhibited the plaintiffs recovery from those injuries. Three doctors were called and there was no testimony that the defendant’s care and attention was improper.

(Italics ours.)

It must be pointed out that plaintiffs’ second cause of action was not predicated solely upon the ground that the defendant’s failure to provide adequate care and attention for Mrs. Johnson after the accident contributed to the injuries or that they inhibited her recovery from those injuries. Nor was medical testimony necessary — it would have added nothing to plaintiff’s claim on the second cause [613]*613of action. The testimony of Mrs. Johnson alone was obviously accepted by the jury when it awarded her a $20,000 verdict, and her testimony was sufficient to support that verdict.

Plaintiff’s testimony as it related to her second cause of action was as follows:

Q. [By Mr. Potts] All right. Now, you mentioned a post. About how long was it, can you estimate, after your head was hit against the steps coming down, that you got over to the post? Can you give any estimate of time? A. [By Mrs. Johnson] Well, I would think it was somewhere between four and five minutes, because it took them quite awhile — three minutes to get us off of the escalator, and then I went over to the post, and I eased myself to the floor, but I stayed there a long time. I stayed there about from ten to fifteen minutes without any help. I was screaming for an ambulance in eivery other word. Nobody paid much attention to me. Q. What happened after that? A.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Chapple v. Ganger
851 F. Supp. 1481 (E.D. Washington, 1994)
Harding v. United States Figure Skating Ass'n
851 F. Supp. 1476 (D. Oregon, 1994)
Jacobs v. Calvary Cemetery & Mausoleum
765 P.2d 334 (Court of Appeals of Washington, 1989)
Bingaman v. Grays Harbor Community Hospital
699 P.2d 1230 (Washington Supreme Court, 1985)
Manzanares v. PLAYHOUSE CORPORATION
611 P.2d 797 (Court of Appeals of Washington, 1980)
Krause v. McIntosh
562 P.2d 662 (Court of Appeals of Washington, 1977)
Ryan v. Westgard
530 P.2d 687 (Court of Appeals of Washington, 1975)
Allen v. Union Pacific Railroad
509 P.2d 99 (Court of Appeals of Washington, 1973)
State v. Casey
503 P.2d 1123 (Court of Appeals of Washington, 1972)
Curtiss v. Young Men's Christian Ass'n
498 P.2d 330 (Court of Appeals of Washington, 1972)
Waechter v. Carnation Co.
485 P.2d 1000 (Court of Appeals of Washington, 1971)
Carlos v. Cain
481 P.2d 945 (Court of Appeals of Washington, 1971)
Duchsherer v. Northern Pacific Railway Co.
481 P.2d 929 (Court of Appeals of Washington, 1971)
Johnson v. Marshall Field & Co.
478 P.2d 735 (Washington Supreme Court, 1970)

Cite This Page — Counsel Stack

Bluebook (online)
478 P.2d 735, 78 Wash. 2d 609, 1970 Wash. LEXIS 338, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-marshall-field-co-wash-1970.