[No. 34453. Department Two. Supreme Court September 25, 1958.]
EDWARD F. MURRAY, JR. et al., Respondents, v. CHARLES D.
MOSSMAN, Appellant.«1»
[1] JURY - EXAMINATION OF JURORS - SCOPE AND PURPOSE - DISCRETION OF COURT. A trial court has considerable latitude in guiding the voir dire examination of prospective jurors; the pertinency of the questions and the limits and extent of the examination are within its discretion, and it can only be reversed if there has been an abuse of discretion.
[2] SAME. In an action for damages arising from an automobile collision, it was not an abuse of discretion for the trial court to sustain an objection to the defendants' counsel inquiring on voir dire examination whether a prospective juror was a member of a certain fraternal organization, and to direct counsel not to inquire about the named organization further in the examination of that or other prospective jurors.
[3] NEGLIGENCE - ACTIONS - EVIDENCE - ADMISSIBILITY - ON ISSUE OF DAMAGES. When a defendant in a negligence case admits liability and contests only the question of damages, he is entitled to have excluded from the testimony all references to the manner in which the accident occurred except such as are relevant to the question of damages, but a trial court's ruling that testimony received is relevant to the question of damages is not to be overridden unless an abuse of discretion is shown.
[4] TRIAL - INSTRUCTIONS - FORM STATEMENT OF ISSUES - QUOTATION FROM COMPLAINT. Rule of Pleading, Practice and Procedure 9, providing that pleadings shall not go into the jury room, was not intended to interfere with the giving of instructions necessary to call attention to the essential issues of the case, and it is immaterial whether, in stating the issues, the court adopts the language of the pleadings or uses language of its own choosing, the only material inquiry being, whether, by the instructions, whatever language may be used, the jury is properly instructed as to the issues.
[5] SAME - INSTRUCTIONS - ERROR CURED BY OTHER INSTRUCTIONS. In an action for damages arising from an automobile collision, it was not reversible error to instruct the jury on the issue of loss of wages notwithstanding the plaintiff testified she had lost no wages as a result of the accident, although a loss of earnings was alleged in her complaint, where the jury was further instructed that the plaintiff had the burden of proving her allegations, and an instruction setting forth the elements of damages that the jury could consider did not include "loss of wages."
Reported in 329 P. (2d) 1089.
[4] See 53 Am. Jur. 487.
886 MURRAY v. MOSSMAN. [52 Wn. (2d)
[6] DAMAGES - GROUNDS - IMPAIRMENT OF EARNING CAPACITY AND LOSS OF WAGES - DISTINGUISHED. Impairment of earning capacity is different from loss of wages; it is the permanent diminution of the ability to earn money.
[7] SAME - EVIDENCE - SUFFICIENCY - IMPAIRMENT OF EARNING CAPACITY. In an action for damages arising from an automobile collision, held that the evidence was sufficient to warrant the giving of a portion of an instruction allowing the jury to consider any impairment of earning capacity they found established by the evidence.
[8] TRIAL - INSTRUCTIONS - APPLICATION TO FACTS AND EVIDENCE. In an action for damages arising from an automobile collision, the trial court properly refused to instruct the jury regarding whether the plaintiff exercised reasonable care and diligence in consulting doctors and exercised reasonable care and diligence in following the course of treatment prescribed by such doctors, where there was no evidence that she did not timely consult competent doctors and the evidence did not justify an instruction regarding her duty to take treatments.
[9] SAME - INSTRUCTIONS - CAUTIONARY INSTRUCTION. In such an action, an instruction which concluded by stating "In criminal cases, the proof must be `beyond a reasonable doubt.' Such is not the rule with respect to civil actions such as this." was merely cautionary and could not mislead the jury.
[10] APPEAL AND ERROR - BRIEFS - POINTS AND ARGUMENTS. Assignments of error which are not argued in the appellant's brief cannot be considered, except as they are supported by arguments made in support of other assignments of error which have been found to be not well taken.
[11] SAME - ASSIGNMENT OF ERRORS - NECESSITY. Where no error is assigned to the claimed excessiveness of a verdict, it cannot be considered on appeal. (Rule on Appeal 43).
Appeal from a judgment of the superior court for Thurston county, No. 28524, Wright, J., entered May 27, 1957, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for damages arising from an automobile collision. Affirmed.
O'Leary, Meyer & O'Leary, for appellant.
Kennett, McCutcheon & Soderland and Brodie & Fristoe, for respondents.
WEAVER, J. -
This is an action for damages arising from an automobile collision. At the commencement of trial, defendant amended his answer, admitted liability, and
Sept. 1958] MURRAY v. MOSSMAN. 887
limited the issue to the amount of damages to which plaintiff might be entitled. Defendant appeals from the judgment entered after the jury verdict.
We consider appellant's (defendant's) eight assignments of error in order, stating only those facts necessary to the discussion of each assignment.
On voir dire examination of prospective juror number one, appellant's counsel inquired if she were a member of a certain fraternal organization. She replied in the affirmative. The objection of respondent's counsel, that such a question was improper because, inter alia, it would tend to bring into the case extraneous matters, was sustained by the trial judge, who directed appellant's counsel not to "inquire about the named organization further on the voir dire examination of this juror and the other prospective female jurors."
Juror number one was accepted and served on the panel. Appellant exercised only one pre-emptory challenge.
[1] The trial court has considerable latitude in guiding the voir dire examination of prospective jurors. The pertinency of the questions and the limits and extent of the examination are within its discretion (State v. Tharp, 42 Wn. (2d) 494, 499, 256 P. (2d) 482 (1953)), and the trial court can only be reversed if it can be said that there has been an abuse of discretion.
[2] In the instant case, the voir dire examination of prospective jurors was not recorded by the court reporter. The statement of facts contains a twenty-line narrative statement (page 6-A, apparently prepared and inserted after the statement of facts had been written and paged) of what took place. From the record before us, we cannot say that the trial court abused its discretion.
Five photographs of the scene of the accident were admitted in evidence for the limited purpose of showing the force of the impact that resulted in damage to respondenta whiplash injury. Certain witnesses were permitted, over objection, to mark the exhibits and to testify concerning the point of impact and the course appellant's car took after the accident.
888 MURRAY v. MOSSMAN. [52 Wn. (2d)
[3] Our conclusion, that admission of the photographs and testimony pertaining thereto did not constitute reversible error, is governed by the rationale of our decision in Snyder v. General Electric Co., 47 Wn. (2d) 60, 68, 287 P. (2d) 108 (1955), wherein this court said:
"When the defendant in a negligence case admits liability and contests only the question of damages, he is entitled to have excluded from the testimony all references to the manner in which the accident occurred except such as are relevant to the question of damages. The trial court announced its adherence to this principle and sought to so limit the testimony. A trial court's ruling that testimony received is relevant to the question of damages is not to be overridden unless an abuse of discretion is shown." (Italics ours.)
With minor exceptions in the testimony (the admission of which is not sufficient to constitute an abuse of discretion), the photographs and the testimony concerning them tended to show the force and direction of the impact that resulted in respondent's injury.
Appellant assigns error to instruction No. 2, urging that (a) it violates Rule of Pleading, Practice and Procedure 9, 34A Wn. (2d) 74, which provides that "pleadings shall not go to the jury room"; and that (b) it submits to the jury the issue of respondent's loss of wages of which there is no evidence in the record.
[4] Instruction No. 2 quotes seven paragraphs of respondent's complaint verbatim. They are enclosed in quotation marks and identified by the Roman-numeral designations of the complaint. The instruction is introductory; it informs the jury of respondent's claim for damages; it informs the jury that appellant denies the claim.
"But the appellant mistakes the purpose of the rule. [Rule of Pleading, Practice and Procedure 9] It was not intended by the rule to prevent the court from stating to the jury the issues they were required to determine, nor was it intended to control its language when so stating the issues. On the contrary, it was intended by the rule that the jury should derive their knowledge of the issues from the instructions of the court, and not be left to gather them from their own construction of the pleadings. Obviously,
Sept. 1958] MURRAY v. MOSSMAN. 889
therefore, it is immaterial whether, in stating the issues, the court adopts the language of the pleadings or uses language of its own choosing. The only material inquiry is, whether, by the instructions, whatever language may be used, the jury were properly instructed as to the issues." Settles v. Johnson, 162 Wash. 466, 473, 298 Pac. 690 (1931).
The rule was not intended to interfere with the giving of instructions necessary to call attention to the essential issues of the case. State v. Ramos, 159 Wash. 599, 602, 294 Pac. 223 (1930); see Robinson v. Ebert, 180 Wash. 387, 397, 39 P. (2d) 992 (1935); Ulve v. Raymond, 51 Wn. (2d) 241, 251, 317 P. (2d) 908 (1957).
The second facet of this assignment of error, however points up the danger of quoting too extensively the allegations of the pleadings when defining the issues. One of the quoted paragraphs of respondent's complaint states that respondent "has lost earnings for said days in the sum of $80." Respondent testified that she had not lost any wages as a result of the accident; hence, appellant urges that an issue was presented to the jury that was not supported by the evidence.
[5] Although it was error to include the issue of loss of wages in instruction No. 2, we do not find it reversible error. Instruction No. 3 informs the jury that respondent has the burden of proving her allegations. Instruction No. 6, in which the court set forth the elements of damages that the jury may consider, does not include "loss of wages." This instruction is curative and the jury could not have been misled by instruction No. 2.
Appellant assigns error to a portion of instruction No. 6 that states: "You may consider any impairment of [plaintiff's] earning capacity which you find established by the evidence" (Italics ours.) because "there was no evidence that would justify any such finding."
[6] Impairment of earning capacity is different from 1055 of wages. It is the permanent diminution of the ability to earn money.
[7] Respondent, a private secretary, testified that since the accident, she has experienced a loss of sensation in her
890 MURRAY v. MOSSMAN. [52 Wn. (2d)
arm and hand; that her ability to take shorthand is affected; that typing is more difficult and that she often finds it necessary to retype her work; that she is not as efficient as she was. A witness who works with respondent testified that respondent has slowed down in every respect; that she complains of feeling tired, suffering from headaches and backaches; that she frequently has to retype her work; that her shorthand notes are not as good as they used to be.
This evidence is sufficient to warrant that portion of instruction No. 6, quoted supra. Johnson v. Howard, 45 Wn. (2d) 433, 450, 275 P. (2d) 736 (1954), and cases cited; see Connolly v. Pre-Mixed Concrete Co., 49 Cal. (2d) 483, 319 P. (2d) 343 (1957).
Appellant assigns error to the court's refusal to give his requested instruction No. 2 dealing with respondent's duty to mitigate damages. The requested instruction would have required the jury to inquire into two subjects: (1) whether respondent exercised reasonable care and diligence "in the matter of consulting doctors" and (2) whether she exercised reasonable care and diligence in "following the course of treatment, if any, prescribed by such doctors."
[8] There is no evidence that respondent did not timely consult competent doctors; the evidence is to the contrary. It would add nothing to the decisional law of this jurisdiction to set forth respondent's medical history. It is sufficient to state that the record supports the trial court's conclusion that "the evidence did not justify giving defendant's [appellant's] requested instruction No. 2 relative to plaintiff's duty to take treatments."
[9] Instruction No. 4 properly defines "burden of proof" and "fair preponderance of the evidence." The court concluded the instruction by stating: "In criminal cases, the proof must be `beyond a reasonable doubt.' Such is not the rule with respect to civil actions such as this."
The quoted portion of the instruction was merely cautionary. We do not see how it could mislead the jury. As the trial court remarked: "Such an instruction might remove a misapprehension and could harm no one." It has
Sept. 1958] MURRAY v. MOSSMAN. 891
previously been approved by this court. See Hart v. Niagara Fire Ins. Co., 9 Wash. 620, 635, 38 Pac. 213 (1894).
[10] Appellant's remaining assignments of error are directed to the entry of judgment on the jury's verdict and denial of a motion for a new trial. They are not argued in appellant's brief and cannot be considered, except as they are supported by the arguments made in support of other assignments of error that we have found were not well taken.
[11] Appellant devotes a portion of his brief to the argument that the verdict of the jury is excessive. No error has been assigned to the claimed excessiveness of the verdict, and it cannot be considered. Rule on Appeal 43, 34A Wn. (2d) 47, as amended, effective January 2, 1953.
The judgment is affirmed.
HILL, C. J., DONWORTH, ROSELLINI, and FOSTER, JJ., concur.
December 10, 1958. Petition for rehearing denied.