Cranford v. O'Shea

Citations

• 75 Wash. 33
• 134 P. 486
• 1913 Wash. LEXIS 2198

Syllabus

<p>Physicians and Surgeons — Malpractice—Degree of Care. Tbe standard of treatment required of a surgeon is not tbat of tbe locality in wbicb be practices, but tbat of all similar localities.</p> <p>Appeal — Review — Harmless Error' — Error Invited by Appellant. Tbe appellant cannot complain of error in an instruction where be requested instructions embodying tbe same error.</p> <p>Trial — Instructions—Applicable to Facts. It is not error to refuse an instruction, correct as a legal abstraction, where there was no evidence to wbicb it could apply.</p> <p>New Trial — Misconduct of Counsel — Improper Argument. It is misconduct of counsel, warranting tbe grant of a new trial, to repeatedly indulge in inflammatory argument alluding to matters outside of the record reasonably calculated to prejudice the appellant in the minds of the jury.</p> <p>New Trial — Grounds—Improper Argument — Discretion-—-Necessity oe Exceptions. Under the inherent power of the common law, as well as Rem. & Bal. Code, § 399, authorizing a new trial for irregularity depriving a party of fair trial or for the misconduct of the prevailing party, the trial court may exercise its discretion to grant a new trial for misconduct of counsel in argument to the jury depriving a party of a fair trial, although no exception was taken at the time of the improper remarks or request made to instruct the jury to disregard them.</p> <p>Same — Discretion oe Court — Failure to Exercise. Notwithstanding that the denial of a new trial would not have been an abuse of discretion, an erroneous denial for supposed lack of power, as a matter of law, is reversible error, where it appears that the trial court would have granted a new trial if it had supposed it had power to exercise its discretion.</p>