Williams v. Spokane Falls & Northern Railway Co.

Dunbar, J. (dissenting) — I dissent. Hot 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 twelve assignments of error, distinctly and concisely stated as follows: First, the court erred in refusing appellant’s request to charge the jury toi find for the defendant. Second, the court erred in overruling appellant’s objection occuring in the examination of H. 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 law books and authorities in the presence of the. jury. The sixth, seventh, eighth, ninth, tenth and eleventh relate to the alleged error — 604 — 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 excessive, 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, page 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 — 605 — section provides further: “But the appellant shall not he 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 : “Ho 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 1» come to this court, try his case upon errors specifically assigned, calling attention of the court and of opposite1 party, both by brief and oral argument, only to such assignment, and then, if defeated, ask by petition for rehearing for a 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, whereas 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 uncertain sound on this subject. In Haugh v. Tacoma, 12 Wash. 386, — 606 — 41 Pac. 173, 43 Pac. 37, wherein the opinion was written hy 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 o*f 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. Co. v. Moffit, 75 Ill. 524, where the court said, “Counsel operate a dragnet, but ask the court to do the sorting;” and from Chicago etc. R. Co. v. Van Vleck, 40 Ill. App. 367, the following: “We decline to enter upon the consider aton of alleged errors thus bundled upon us.” Also, the following was quoted from Brown v. Tolles, 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 pretexts 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 neces — 607 — sity upon this court of resorting to the record to determine the material errors. In Chandler v. Cushing-Young Shingle Co., 13 Wash. 89, 42 Pac. 584, while the motion to strike 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 proposéd 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 etc. 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 in — 608 — sists 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, hut the court evidently does not yet seem to understand his position, for while, of course, everything else being lost he would he glad, and so stated, of a modification of the judgment, bis 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 asking what the law° guarantees ns, viz., a fair trial; and until we have the verdict of a jury upon a fair trial, where incompetent and prejudicial testimony is excluded and competent and relevant testimony of witnesses is received without such witnesses being unjustly held up for ridicule and disgrace, it is pure speculation to undertake to say what verdict or in what amount the truth and justice of the case requires.” As showing the object of the petition, and just what was asked by counsel for appellant, in the closing of the opening petition on page 17, it is said: “While much, very much, might be said and strong grounds advanced for a rehearing upon the questions which you have discussed, yet to avoid confusion and in the firm belief that we axe entitled to a rehearing because of the disposition made of assignments 2, 3 and 4, we are willing to confine this petition to their consideration only.” Two, three and four were the assignments which this court has just deliberated upon, viz., the errors of the court alleged in the introduction of testimony. Appellant’s counsel, not only in his oral argument hut in his reply brief on petition for rehearing, has not only not asked this court to modify the judgment, hut has strenuously and, I think, logically in — 609 — sisted. that this court has no right to do so; and in his reply brief on the petition for rehearing — the last expression of counsel on the subject — on page 10, we find the following: “We have said elsewhere in this brief that the injury arising from the incident complained of was more harmful to the case of the defendant than if the court had arbitrarily refused to allow the witness to be sworn. Is it logical to say that the remedy for such an error is to reduce the amount of the verdict? To what conclusion would you thus be led? Supposing that instead of depriving the defendant of the benefit of the testimony of one witness, the court had ruled out the testimony of two witnesses, you would naturally deduct a still greater sum from the verdict; and ‘by the same token,’ if the trial court arbitrarily shut out all of the defendant’s testimony, you would meet the error by adjusting the amount to accord with your own views. Surely such would not be administering justice by the usual course, and the constitutional guaranty of 'fair trial’ becomes meaningless.” Counsel for appellant has been consistent in the different presentations of the case. The inconsistency, in my judgment, is with this court. If prejudicial error was committed by the court on questions raised on the second,' third and fourth assignments, which we refused to pass upon at the first trial, the judgment should be reversed. But this court, upon a final investigation of such alleged errors, has found that prejudicial error was not committed. That being true, the only logical thing to do is to affirm the judgment.