GARRATT v. DAILEY

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Docket Number

No. 33663.

Attorney(S)

Rode, Cook, Watkins Orth and William R. Thomas, for appellant. Kennett, McCutcheon Soderland and James P. Healy, for respondent.

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Smart Summary

Factual and Procedural Background

This action was for damages resulting from an alleged battery by the defendant, a five-year-and-nine-month-old boy, when the plaintiff attempted to sit in a chair the boy had removed. The superior court originally entered judgment for the defendant. That judgment was reviewed by this court in Garratt v. Dailey, 46 Wn.2d 197, 279 P.2d 1091, and the cause was remanded for clarification on the issue of the defendant's knowledge. On remand the superior court found the defendant knew, with substantial certainty, that the plaintiff would attempt to sit where the chair had been, and entered judgment for the plaintiff for $11,000 plus costs. The defendant (appellant) appeals from that judgment.

Legal Issues Presented

Whether the superior court acted contrary to the mandate of this court by making a finding that the plaintiff was in the act of sitting down when the chair was removed.
Whether the evidence supports the superior court's additional finding that the defendant knew, with substantial certainty, that the plaintiff would attempt to sit where the chair had been.

Arguments of the Parties

Appellant's Arguments

The superior court's post-remand finding that the plaintiff was in the act of sitting when the chair was removed contradicts the original findings approved by this court and therefore is contrary to the mandate.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Garratt v. Dailey, 46 Wn.2d 197, 279 P.2d 1091	Material facts found by the trial court and the applicable law as enunciated by this court; that knowledge is sufficient to charge the defendant with intent to commit a battery.	The court relied on its prior opinion and on the principle that knowledge with substantial certainty can constitute intent to commit a battery in affirming the superior court's finding of knowledge and intent.
Tucker v. Brown, 20 Wn.2d 740, 150 P.2d 604	The proper procedure when a superior court proceeds contrary to this court's mandate is for the aggrieved party to apply to this court for an appropriate writ requiring conformity to the mandate.	Applied to hold that, having failed to seek the appropriate writ, the appellant is foreclosed from objecting to the judgment on the ground that the superior court acted contrary to the mandate.
Frye v. King County, 157 Wn. 291, 289 P. 18	Same rule as Tucker v. Brown regarding the proper remedy when a lower court acts contrary to the supreme court's mandate.	Applied alongside Tucker to support the court's conclusion that the appellant's failure to pursue the writ remedy precludes his objection to the post-remand findings.

Court's Reasoning and Analysis

The court began by referring to its prior opinion in Garratt v. Dailey for the material facts and applicable law. On remand the superior court reviewed the evidence, heard additional arguments and briefs, and found the defendant removed the chair while the plaintiff was in the process of seating herself, concluding the defendant knew with substantial certainty she would attempt to sit where the chair had been. The court addressed the appellant's contention that this finding contradicted the original findings and reiterated that the appropriate remedy for an inferior court acting contrary to this court's mandate is to apply here for a writ (citing Tucker v. Brown and Frye v. King County); because the appellant failed to seek such relief, he cannot now object on that ground. On the merits, the court observed that remand for clarification on the defendant's knowledge presupposed the existence of evidence on that issue; the trial judge, on reconsideration of the time sequence, found the plaintiff had begun the slow process of being seated and that the defendant knowingly removed the chair and sat on it. The court affirmed that such knowledge is sufficient to charge the defendant with intent to commit a battery (as stated in Garratt v. Dailey) and found ample support for the trial court's conclusion in the record.

Holding and Implications

Judgment affirmed.

Direct effects: the superior court's judgment for the plaintiff in the amount of $11,000 plus costs is affirmed; the appellant is foreclosed from objecting that the superior court acted contrary to this court's mandate because he did not apply here for the appropriate writ. The opinion does not announce broader precedent beyond these direct consequences.

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RUTH GARRATT, Respondent, v. BRIAN DAILEY, a Minor, by George S. Dailey, his Guardian ad Litem, Appellant. Reported in 304 P.2d 681.

APPEAL AND ERROR — DISPOSITION OF CAUSE — PROCEEDINGS AFTER REMAND — PROCEEDINGS CONTRARY TO MANDATE OF SUPREME COURT. If the superior court proceeds contrary to the mandate of the supreme court, it interferes with the supreme court's jurisdiction, and the proper procedure for the aggrieved party to pursue is to apply to the supreme court for an appropriate writ requiring the superior court to conform to the mandate; and if he fails to take such action, he is foreclosed from objecting to the judgment on this ground.

ASSAULT AND BATTERY — INFANTS — BATTERY — INTENT AND KNOWLEDGE — EVIDENCE — SUFFICIENCY. In an action against a five-year-old boy for personal injuries sustained when the plaintiff attempted to sit down in a chair which the boy had moved, held that the evidence sustains the finding of the trial court that, when the boy removed the chair, he knew with substantial certainty that the plaintiff would attempt to sit in the place where the chair had been; and such knowledge is sufficient to charge the boy with intent to commit a battery.

See 4 Am. Jur. 127.

ROSELLINI, J.

This is an action for damages resulting from an alleged battery perpetrated upon the plaintiff by the defendant, who was five years and nine months of age at the time of the occurrence. The judgment of the superior court of Pierce county in favor of the defendant, was reviewed by this court in Garratt v. Dailey, 46 Wn.2d 197, 279 P.2d 1091. Reference is hereby made to that opinion for the material facts found by the trial court and the applicable law, as enunciated by this court.

Upon remand for clarification on the issue of the defendant's knowledge, the superior court reviewed the evidence, listened to additional arguments and studied briefs of counsel, and entered a finding to the effect that the defendant knew, with substantial certainty, at the time he removed the chair, that the plaintiff would attempt to sit down where the chair had been, since she was in the act of seating herself when he removed the chair. Judgment was entered for the plaintiff in the amount of eleven thousand dollars, plus costs, and the defendant has appealed.

Seven of the defendant's assignments of error raise a single question, whether the superior court acted contrary to the mandate of this court when it made a finding that the plaintiff was in the act of sitting down when the chair was removed. It is the contention of the defendant that this finding contradicts the findings originally entered, which were approved by this court.

This question was previously argued in a motion to recall the remittitur. The motion, which was argued before this court in cause No. 32841, was decided adversely to the defendant's contention on March 16, 1956.

[1] If the superior court proceeds contrary to the mandate of this court, it interferes with this court's jurisdiction. The proper procedure for the aggrieved party to pursue is to apply to this court for an appropriate writ requiring the superior court to conform to the mandate. Tucker v. Brown, 20 Wn.2d 740, 150 P.2d 604; Frye v. King County, 157 Wn. 291, 289 P. 18. Having failed to take appropriate action, the appellant is foreclosed from objecting to the judgment on this ground.

The substance of the remaining assignments is that the evidence does not support the additional finding. The record was carefully reviewed by this court in Garratt v. Dailey, supra. Had there been no evidence to support a finding of knowledge on the part of the defendant, the remanding of the case for clarification on that issue would have been a futile gesture on the part of the court. As we stated in that opinion, the testimony of the two witnesses to the occurrence was in direct conflict. We assumed, since the trial court made a specific finding that the defendant did not intend to harm the plaintiff, that the court had accepted the testimony of the defendant and rejected that of the plaintiff's witness. However, on remand, the judge who heard the case stated that his findings had been made in the light of his understanding of the law, i.e., that the doctrine of constructive intent does not apply to infants, who are not chargeable with knowledge of the normal consequences of their acts.

[2] In order to determine whether the defendant knew that the plaintiff would sit in the place where the chair had been, it was necessary for him to consider carefully the time sequence, as he had not done before; and this resulted in his finding that the arthritic woman had begun the slow process of being seated when the defendant quickly removed the chair and seated himself upon it, and that he knew, with substantial certainty, at that time that she would attempt to sit in the place where the chair had been. Such a conclusion, he stated, was the only reasonable one possible. It finds ample support in the record. Such knowledge, we said in Garratt v. Dailey, supra, is sufficient to charge the defendant with intent to commit a battery.

The judgment is affirmed.

DONWORTH, C.J., HILL, FINLEY, and FOSTER, JJ., concur.