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John Conway to remain and act upon the ship as a hatch tender; that on January 21, 1903, while the steamer was lying at the dock at Seattle, Wash., and while Anderson was aboard acting as boatswain in charge of the sailors and winches and winchmen, and while defendant Conway was aboard acting as hatch tender, and both Anderson and Conway were in sole and complete charge of the first mate, and while the captain of the vessel was absent, Anderson and Conway became exceedingly drunk and remained drunk in the immediate presence of Forward continually all of said day, cursing, swearing, and drinking until plaintiff's injury, between 3 and 4 o'clock of the afternoon of that day; that plaintiff was employed by the defendant company as a longshoreman, and was at work as such, handling freight in the hold of said vessel, knowing nothing of the actions of either Anderson or Conway; that between 3 and 4 o'clock the drunken boatswain negligently and carelessly attempted to operate a winch and to lower freight thereby into the hold of the vessel; that it was Conway's duty as hatch tender to keep watch down the hatch (where plaintiff was at work), and to warn any one below of danger from freight being loaded in the hold; that the drunken boatswain caused a sling load of freight to fall without any warning whatever, and, without any effort on his part to prevent the same from falling, recklessly, carelessly, and in a drunken manner turned the winch loose and allowed the freight to fall of its own weight nearly 20 feet upon plaintiff; that Conway negligently and carelessly failed to keep a lookout for the safety of plaintiff, and to warn plaintiff that freight was approaching the hatch, and to warn plaintiff in any manner of his danger; that plaintiff was crushed under the weight of said cargo, his left leg crushed so that it became necessary to amputate it below the knee, and that he suffered various other injuries; and asked for damages in the sum of $75,000. The defendant admitted the employment of Forward as first mate and Conway as hatch tender, of plaintiff as longshoreman; admitted that the plaintiff was crushed by a sling load of cargo; but denied all other allegations contained in plaintiff's complaint, including the employment of Anderson as boatswain. As an affirmative defense, it alleged that whatever damage and injury plaintiff sustained were caused by his own carelessness and negligence and want of care, without any fault or negligence on the part of the company, which affirmative matter was denied by plaintiff. The defendant, before answering, petitioned the court to remove the case to the federal court, which petition was denied; and also demurred to the complaint, which demurrer was also denied.

We think the court was justified in refusing the change asked for, and there seems to be no merit in the demurrer to the complaint;

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it plainly, in our judgment, stating a cause of action. Nor can there be any question, under the testimony, of the responsibility of the appellant for Anderson's acts. A ship company cannot intrust a drunken boatswain with authority over the sailors and disavow responsibility for the reckless exercise of that authority. There are no questions of law in this case that have not been decided many times over by this court in opposition to appellant's contention. The testimony as conclusive that there was the most culpable negligence on the part of the officers and agents of the appellant company; that they were intoxicated to such a degree that they handled the business of lowering the freight with the most reckless indifference to the safety of the men who were working below, neither giving timely warning of the descent of the load, or using any effort or care to send it down at a reasonable rate of speed. The respondent was in the strict performance of his duty. He had been commanded by the captain of the ship to move some potatoes that were under the hatch coamings, being told that the steward would tell him where to put them. The steward did immediately tell him where to put them, and as he bent over to comply with this order, he was struck and crushed by the descending freight. There is no showing whatever of any contributory negligence or assumption of risk. Respondent was in the performance of his duty, yielding that ready, unquestioning obedience to orders which is so necessary upon shipboard. In the performance of that duty, he had a right to rely upon the duty of the master to furnish him a safe place in which to work, and to rely upon its duty to employ competent and reliable agents to handle the dangerous agencies which they were using in the business, the negligent use of which was without any doubt the proximate cause of the injury. We find no reversible error in the instructions given by the court, or in rulings upon the admission of testimony.

It is contended, however, by the appellant, that the judgment of $20,000 which the respondent obtained is excessive, and from an examination of the record we are forced to the conclusion that the judgment is excessive. The respondent at the time of the injury was 39 years old, his business was that of a longshoreman, and his testimony was that his earnings amounted to from $50 to $75 a month, or an average of $60. A judgment of $14,000, with interest at 6 per cent., which is probably available, would amount to $70 a month, $10 a month more than the average which the respondent testified he earned, even conceding that he was able to obtain steady employment, and that such employment would not be affected by sickness or any of the vicissitudes of life. This would still leave the principal of $14,000, which it seems to us would be a sufficient recompense for the injuries which he received.

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Though plaintiff in a personal injury case has waived his privilege by making no objection to the doctor who attended him testifying for defendant, the trial court may in its discretion allow him a wide latitude in cross-examination of the witness for the purpose of discrediting him, by showing interest or bias in the case, which discretion is reviewable only for abuse. [Ed. Note. For cases in point. see vol. 50, Cent. Dig. Witnesses, §§ 1192, 1193.] 3. EVIDENCE--RELEVANCY-REBUTTAL.

In a personal injury case, in which the principal defense was that plaintiff was in a large measure simulating his injuries, and in which defendant's evidence tended to show plaintiff was afflicted with what the doctors termed "hysterical paralysis," and that the pendency of a lawsuit has a strong tendency to prevent improvement in such cases, testimony that defendant's claim agent frequently visited plaintiff in the hospital is admissible as tending to rebut the evidence of the physicians by discrediting their statements that plaintiff was suffering from hysterical paralysis, because under such circumstances the attending physicians would not have permitted the claim agent to visit the plaintiff.



A verdict for $33,000 for injuries to one in the railway mail service, whereby he was partially paralyzed, so that he can never walk, and can never regain the sight of his left eye, is excessive, though he is a young man and of good habits.

[Ed. Note.-For cases in point, see vol. 15, Cent. Dig. Damages, §§ 372, 374, 385, 387, 394.] 5. APPEAL-ASSIGNMENT OF ERROR-EXCESSIVE VERDICT.

That excessiveness of plaintiff's verdict was one of the grounds of the motion for new trial, and that the opening brief assigns the overruling of the motion as error, is sufficient to allow defendant on appeal to raise the question of excessiveness.

Dunbar, J., dissenting.

On rehearing. Reversed and remanded. For former opinion, see 80 Pac. 1100.

MOUNT, C. J. On May 22, 1905, we filed an opinion in this case, affirming the judg ment rendered by the lower court. See 80 Pac. 1100, where the facts are stated. In that opinion we said: "In consideration of the fact that the amount of the judgment is not called in question, the second, third, and fourth assignments of error are immaterial.” Subsequently, upon petition of appellant for a rehearing, we concluded that the amount of the judgment was called in question, and that we ought to consider the above-named assignments, and we therefore granted the petition for a rehearing as to the assignments of error stated. Supplemental briefs were filed, and an argument has been heard, and we come now to consider the case upon those assignments.

The second assignment is to the effect that the court erred in permitting evidence of the fact that, but for the injury, respondent's salary would have been increased. The witness Elwell, who was employed as chief clerk in the United States railway mail service in the district comprising Spokane and Northport, was examined by the respondent for the purpose of showing the compensation received by postal clerks in the class to which repondent belonged at the time of the injury; also as to the fact that, before being assigned to a run, applicants were required to pass the civil service examination. He was then asked the following question: "Q. Now, what salary does he get when he becomes a regular mail clerk? A. On that run, the run on which he was at the time of the accident, the salary commences at $800 a year for--let's see, Mr. Williams would have probably 60 days to serve at the rate of $800 a year. Then, if his examination was satisfactory, and if his work was satisfactory, he would then have been promoted to $900 a year. Then he would be put in the $1,000 class." The witness was then interrupted and stated that, after each of these periods, another examination was necessary. An objection was then made that the evidence was too remote. This objection was overruled, and the witness proceeded : "He would be in the $1,000 class. He would remain in that class until there was a vacancy in the $1,200 class, which is the highest class on the run at the present time." Appellant urges that this evidence is purely speculative and conjectural, but we think not. The respondent was working under civil service rules. He had already passed his principal examination, and his promotion to the $900 and $1,000 classes was reasonably sure to follow. In fact, after his injury and before his trial, he had been promoted from the $800 to the $900 class, but was unable, by reason of his injury, to go about his work. This case is unlike those cases where promotion depends upon the will of some individual or is speculative in other respects. It is governed by fixed rules, which, being complied with, promotion follows of course.



The third assignment is that the court erred in permitting certain cross-examination of Dr. Potter, a witness for appellant. It appears that Dr. Potter had been called by former attorneys for the respondent to make examinations of the respondent. These examinations were made by Dr. Potter in his professional capacity. Dr. Potter was not called as a witness for the respondent, but he was called for the appellant, and testified without objection. He detailed the condition in which he found the respondent, and gave his opinion of the results which would follow. On cross-examination counsel for respondent, over appellant's objection, was permitted to ask questions as follows: "Q. Now, did you ever hear of section 1649, second volume of Hill's Code, subdivision 4, which reads as follows: A regular physician or surgeon shall not without the consent of his patient be examined in a civil action as to any information acquired in attending such patient, which is necessary to enable him to prescribe or act for such patient'? A. I never read the statute. Q. Did you ever hear there was such a statute? A. I have heard the matter discussed within the last two or three days. Q. Did you not, when you came on the witness stand to testify, know that, in your position as surgeon and physician to this boy, you had no right to come here and testify to what you found out about him, unless he consented to it? A. I did not. Q. Do you consider that it is professional decency, when you are employed by a man, when you are taken into his secret bedchamber to treat him and find out all you know about him, is it considered decent in your profession to run over and tell it to somebody else who is hostile to that person? * 串 * A. Please repeat that. Q. I say, when you are employed by a sick man to go to his bedside and attend him, and he gives you every opportunity to get information concerning him, and you do go on and get that information by visit after visit, is it considered decent in your profession to run over and tell somebody else who is hostile to him, or who has interests antagonistic to his, everything you know about him? A. It is unethical under the circumstances as stated." Other questions along this same line were permitted. Appellant insists that this cross-examination was improper. The respondent, no doubt, waived his privilege, when he permitted the doctor to give his testimony without making any objection thereto. Lissak v. Crocker Estate, 119 Cal. 442, 51 Pac. 688; Briesenmeister v. Knights of Pythias, 81 Mich. 525, 45 N. W. 977; Lincoln v. Detroit, 101 Mich. 245, 59 N. W. 617. But he had a right to discredit the witness by showing interest or bias in the case, and legitimate cross-examination was perfectly proper for that purpose. A wide latitude is usually, and should be, given upon cross-examination, the extent of which must be governed largely by the discretion of the trial court. Such

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discretion will only be reviewed for abuse thereof. Fleischner v. Beaver, 21 Wash. 6, 56 Pac. 840; State v. Coates, 22 Wash. 601, 61 Pac. 726. While we think the cross-examination complained of as to this witness is very close to the line of error, because of the apparent unfair inferences which might have been drawn by the jury, yet, by reason of the fact that there were several other reputable doctors who had as good or better opportunities of knowing the condition of respondent as Dr. Potter had, and that these doctors gave substantially the same testimony as Dr. Potter, and against which doctors there was not shown any bias or prejudice or interest in the case, and for the further reason that the discretion of the trial court should not be reviewed except for abuse, we have concluded that the cause ought not to be reversed on this account.

The fourth assignment is that the court erred in permitting the respondent to testify on rebuttal as follows: "Q. Herbert, while you were at the hospital, what about the claim agents of the defendant company coming frequently to see you and trying to get a settlement out of you? * * * A. Well, he came up there quite frequently. I cannot say as to how often. There was one week there he came two or three times. Now, I don't want to be understood about it. When he first asked me about a settlement- Q. I don't want you to say anything about what he said. Just the fact of his coming there. A. One week he came three times. Another week two times. He would drop in once in a while to see how I was getting along." It is contended that the purpose of this evidence was to show an admission of liability on the part of appellant, and that offers of compromise are inadmissible. If the purpose was as stated, there can be no doubt about the inadmissibility of the evidence; but we think this was not the purpose of it under the circumstances of the case. The principal defense of the appellant was that the respondent was in a large measure simulating his injuries. Appellant's evidence tended to show that repondent was afflicted with what the doctors termed "hysterical paralysis," and that the pendency of a lawsuit had a strong tendency to prevent improvement in such cases. The evidence above quoted was received by the trial court upon the theory that it had a tendency to rebut the evidence of the physicians by discrediting their statements that respondent was suffering from hysterical paralysis, because, under such circumstances, the attending physicians would not have permitted the claim agent to visit this respondent. We think the evidence was admissible for that purpose, and for that reason only.

Appellant insists, upon this rehearing, that the verdict is excessive and should be reduced, even if we do not reverse the case. The verdict and judgment in the case was for $33,000. We have gone carefully over

all the evidence in the case, and are satisfied that the verdict is largely excessive. It is true, the respondent is a young man of good habits, and that he is severely injured; but there is much doubt in our minds, as there must have been in the minds of the jury, that he is permanently injured. Conceding, however, that he is partially paralyzed, and that he can never walk and never regain the sight of his left eye, we think that $20,000 is a large measure for his injuries. The respondent in this case was no more severely injured than the respondent in Melse v. Alaska Commercial Co., 84 Pac 1127, where we reduced the verdict from $20,000 to $14,000. But respondent in this case is considerably younger and received at the time of his injury about the same amount of wages. Respondent insists that appellant cannot now raise the question of the excessiveness of the verdict, because it was not clearly pointed out in the opening brief. This was one of the grounds for a motion for a new trial, and the opening brief assigns the overruling of the motion as error. This is sufficient to raise the question.

The cause is therefore remanded to the lower court to grant a new trial, unless the respondent, within 60 days after the remittitur is filed below, shall remit $13,000 from the judgment. If such sum is remitted within the time named, the judgment will stand affirmed for $20,000, which shall bear interest from the date of the verdict. Appellant shall recover costs of this appeal.

HADLEY, CROW, and ROOT, JJ., concur.

DUNBAR, J. I dissent, not because I am convinced that the judgment is not too large, but because that question is not involved in this case, and I think it is an excellent idea for this court to try causes on the issues which are made, and to confine itself to such issues. Ordinarily, the practicing attorneys of this state can be relied upon to raise such issues in their briefs as they deem material to the best interests of their clients. Appellant's original brief presents 12 assignments of error, distinctly and concisely stated as follows: First, the court erred in refusing appellant's request to charge the jury to find for the defendant. Second, the court erred in overruling appellant's objection occurring in the examination of II. A. Elwell, a witness on behalf of respondent. The third and fourth assignments are also in relation to the admission of testimony. The fifth was in relation to allowing counsel to read from lawbooks and authorities in the presence of the jury. The sixth, seventh, eighth, ninth, tenth, and eleventh relate to the alleged error of the court in giving and refusing to give instructions. The twelfth is that the court erred in overruling appellant's motion for a new trial. If there is any intimation in these assignments of error that the verdict is ex


cessive, it would certainly take a very powerful judicial microscope to discover it. And the argument which follows these assignments is addressed specifically to the errors assigned, and no claim was made, either by assignment of error or by argument written or oral, that the judgment was excessive. This was understood by the respondent, who says in his answering brief (page 40): "Defendant did not contend in the lower court, and does not contend here, that the damages awarded were excessive." This statement is not challenged by the appellant in its reply brief, but the reply argument is confined to answering the respondent's contentions in relation to the errors assigned. On these briefs and oral argument the cause was submitted to this court. But, says the majority, the question of the excessiveness of the verdict was raised because it was one of the grounds for a motion for a new trial, and the opening brief assigns the overruling of the motion as an error. This would have been sufficient, no doubt, to preserve the question and make it available for assignment, if it had really been assigned; but it is the assignments of error that this court deals with, and not what might have been assigned. The object of a brief, manifestly, is to apprise the court and opposite counsel of the issues which are involved, and to assist the court in determining such issues. This is of so much importance that it has been provided for both by statute and by rule of this court. Section 15, c. 61, p. 127, of the Laws of 1893, provides for the service by the appellant of his opening brief, and adds "which brief shall clearly point out each error that appellant relies on for a reversal." And to prevent any possible misleading of the respondent by any omission in the appellant's opening brief, the latter part of the section provides further: "But the appellant shall not be permitted to urge, in any such reply brief or statement of additional authorities or on the hearing, any grounds for reversal not clearly pointed out in his original brief." This law has been supplemented by this court by rule. Subdivision 2 of rule 8 provides, “each error relied on shall be clearly pointed out"; and rule 12 unmistakably points out what the result will be. if this order is not obeyed. It is as follows: "No alleged error or mistake of the superior court will be considered by the Supreme Court unless the same be clearly pointed out in the appellant's brief." And yet, in the face of the statute and of its own expressed mandate, this court reverses a judgment upon an error which is not pointed out clearly or otherwise, and which was therefore presumably not relied upon. It cannot be possible that the court intends to announce a rule that will permit a litigant to come to this court, try his case upon errors specifically assigned, calling attention of the court and of opposite party, both by brief and oral argument, only to such assignment, and then,

if defeated, ask by petition for rehearing for à reversal upon grounds first mentioned in such petition, upon the theory that he had assigned as error the overruling of the motion for a new trial. This would be inviting the use of masked batteries in contests before this court, where, as in all jurisdictions in the civilized world. litigants are compelled to wage an open warfare.

The object of the statute and the rule is obvious. It is to prevent an appellant, by dragnet assignments, from dumping in for the consideration of this court an undigested and undeterminable mass of records in which are incorporated questions both material and immaterial, and placing upon the opposing counsel and upon the court the burden of discovering, if possible, what rulings of the lower court he relies upon as error. In fact, this court has spoken with no uncertain sound on this subject. In Haugh v. Tacoma, 12 Wash. 386, 41 Pac. 173, 43 Pac. 37, wherein the opinion was written by Judge Gordon, the learned counsel now representing the appellant in this case, appellant's brief was stricken and the judgment affirmed because the errors relied upon for reversal were not clearly pointed out. In this case the errors are clearly pointed out and discussed, but they do not include excessive damages. So that it is more certain in this case what errors were relied on than in the Haugh Case, supra, where there was simply indefiniteness and uncertainty, and where the appellant was anxious by oral argument to make clear to the court the errors relied upon. But the learned judge who wrote the opinion in that case, in answer to the insistence of the counsel for appellant in a petition for rehearing that his points taken in connection with the statement of facts became intelligible, said: "Doubtless such is the case, but we think they should be made intelligible in the brief." And in that case, after citing the statute and the rule, we said: "We think that, in the preparation of the brief, counsel has wholly disregarded the plain provisions of the statute and the rules of this court"— and quote approvingly from Chicago, etc., R. R. Co. v. Moffitt, 75 Ill. 524, where the court said, "Counsel operate a drag net, but ask the court to do the sorting"; and from Railway Co. v. Van Vleck, 40 Ill. App. 367, the following: "We decline to enter upon the consideration of alleged errors thus bundled upon us." Also the following was quoted from Brown v. Tooles, 7 Cal. 398: "If a party complains of error, and seeks a reversal, it is due to us that he should show wherein the error consists. We cannot be 'expected to act in the double capacity of counsel and judges, * * and we cannot * * be expected to wade through 'the record to find argument, or invent pre'texts for reversing the cause." And much 'more was said in that case to the effect that

the brief must point out the errors relied upon without putting the necessity upon this court of resorting to the record to determine the material errors. In Chandler v. Cushing-Young Shingle Co., 13 Wash. 89, 96, 42 Pac. 548, while the motion to stike the brief was denied for the reason that it had complied with the law, we said: "In this connection it may not be improper to observe that, in our opinion, it was the purpose of the Legislature, in enacting the law concerning the assignment of errors, to require the appellant to so specifically set forth each and every alleged error that an inspection of the brief alone will fully disclose the same. It was not the intention to require this court to search through the entire record in a case in order to determine what errors may have been committed, and, if a proposed assignment is such as to require it to do so, it will be entirely disregarded.”

I will ask how this court would be able to determine, from the assignment relied upon by the majority, viz., that the court erred in denying the motion for a new trial. in what particular it was that the court erred, without an investigation of the record, laying aside assignments which were specifically made in the brief? Certainly there appears nothing in the brief to indicate that the assignment of error was based upon the fact that the verdict was excessive. In conformity with the rule announced in the Haugh Case, we struck appellant's brief in Perkins v. Mitchell, Lewis & Staver Co., 15 Wash. 470, 46 Pac. 1039, for the reason that the brief did not point out the errors relied upon for reversal. The rule was again announced in Doran v. Brown, 16 Wash. 703, 48 Pac. 251, and the brief stricken for the same reason. And in Sengfelder v. Hill, 21 Wash. 371, 58 Pac. 250, we refused to consider a contention of appellant made in the argument because it was not included in the assignments of error. Yet in the face of its own decrees, and, I think, of universal authority under statutes and rules of courts similar to ours, this judgment is reversed, for it is in effect a reversal of the judgment. Says the majority: "The appellant insists upon the rehearing that the verdict is excessive and should be reduced, even if we do not reverse the case." This is evidently an inadvertence in the statement of the case. The learned counsel for the appellant was consistent in his application, but the court evidently does not yet seem to understand his position, for while, of course, everything else being lost, he would be glad, and so stated, of a modification of the judgment, his position is, in his petition for rehearing, not that the verdict should be modified because it was excessive, but because errors were committed by the court which entitled him to a new trial. On page 8 of the petition it is said: "We are not asking for a modification of the judgment. We are simply

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