# Gilmartin v. Stevens Investment Co. > Washington Supreme Court · September 21, 1953 · 43 Wash. 2d 289 URL: https://www.frixlaw.com/law-library/cases/9601520 ## Case - **Full name:** Marie Gilmartin Et Al., Appellants, v. Stevens Investment Company, Respondent - **Court:** Washington Supreme Court - **Decided:** September 21, 1953 - **Citations:** 43 Wash. 2d 289; 261 P.2d 73; 1953 Wash. LEXIS 313 - **Precedential status:** Published - **Opinion:** Dissent by Schwellenbach - **Judges:** Hamley, Schwellenbach, Olson - **Cited by:** 29 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9601520 ## Opinion text Schwellenbach, J. (dissenting) — The real issue in this appeal is whether or not we are willing to abandon the long recognized practice of permitting a trial to proceed under rules which, throughout the years, have been recognized as being the best method of administering justice between individual litigants. As I interpret the majority opinion, it says that the trial court is not obliged to accept the testimony of any witness— But— if we are not satisfied with his decision, we will require him to make an award of substantial damages or to give appellants an opportunity to submit additional proof as to damages. The majority also suggests that the court might appoint an appraiser or other expert to present additional testimony as to value. This is quite a departure from the recent case of Mills v. Meyer, 40 Wn. (2d) 369, 243 P. (2d) 491 , wherein we said: “A mere failure of proof is not a ground upon which a new trial can be granted. Appellant has not established any other ground .upon which he can or should be granted a second opportunity to submit proof of his damages.” Our sole province as an appellate court is to review the work of the trial judge. If we are satisfied, from the record, that the evidence clearly preponderates against his findings, or that he has committed some prejudicial error, or has abused the discretion placed in him, it is our duty to reverse. But we have no right to tell him how to conduct his •trials. We have no right to send the case back to him because we feel that justice has not been done, and tell him to try it again. I have been trying to visualize the effect of the majority 'opinion/ - It will do away with adversary trials. The judge will become a benevolent despot. It will place the burden of proving' the elements of a lawsuit on the trial judge, *301 rather than on counsel. He, the judge, must not sustain a challenge to the sufficiency of the evidence. If he does not believe the testimony, or if he feels that his decision might shock our sense of justice, he must tell counsel to go out and get more testimony. Or perhaps he should appoint an appraiser or other expert to investigate and obtain such testimony. We have always been hesitant in overthrowing the findings of a jury — its members being the triers of facts. We should be more hesitant in overthrowing the findings of a trial judge. I cannot agree with the majority’s interpretation of assignment of error No. 4: “The Court was in error when he denied awarding the plaintiff substantial damages but in place thereof awarded nominal damages of $25.00 when the Court denied plaintiff’s motion for a new trial, St. of F. Page 322, Line 11 to Page 329, Line 19.” The majority states that the quoted assignment of error discloses to us that appellants challenge the trial court’s action in denying the motion for new trial. I do not believe that we should be too technical in interpreting our rules. However, I do not believe we should permit our zeal to do justice to read something into an assignment of error which obviously is not there. Assignment No. 4 merely charges error in denying plaintiff substantial damages, but in place thereof awarding nominal damages. The denial of plaintiff’s motion for new trial is not. assigned as error. There is a clear distinction in the meaning of the terms “damage” and “damages.” “Damage” is defined in Black’s Law Dictionary as “Loss, injury or deterioration, caused by the negligence, design, or accident of one person to another, in respect of the latter’s person or property. The word is to be distinguished from its plural — ‘damages’, which means a compensation in money for loss or. damage.” The term “damages” is defined in Black’s Law Dictionary as, “A pecuniary compensation or indemnity, which may be recovered in the courts by any person who has suffered loss, detriment, or injury, whether to his person, property, or *302 rights, through the unlawful act or omission or negligence of another.” Thus, it will be seen that “damage” is legal injury, and that “damages” is the pecuniary compensation for such legal injury. The trial court used the words, “plaintiffs have known some substantial damage.” Those words, as used by the trial court, do not mean that the plaintiffs have been damaged in a substantial amount, but merely that they have been substantially damaged in fact. The rule for the degree of proof required to prove damages is found in 25 C. J. S. 816, Damages, § 162, (2): “Damages cannot be allowed where not supported by the required degree of proof, nor can a substantial recovery be based on anything except evidence which justifies an inference that the damages awarded are just and reasonable. Damages must be proved with all the certainty the case permits and cannot be left to conjecture, guess, or speculation. As a general rule, the evidence should be such as to enable the court or jury to determine the injury and the amount of damages with reasonable certainty or accuracy; and it is sufficient if they are so established. Proof of the amount of loss with absolute or mathematical certainty is not required, and it does not matter that the determination of damages depends to some extent on the consideration of contingent events. So, it has been held sufficient if a reasonable basis of computation is afforded, even though the result may be only approximate, or to adduce evidence which is the best the case is susceptible of under the circumstances and which will permit a reasonably close estimate of the loss. Where damages are susceptible of definite or precise proof, or of estimation by those having knowledge, or are capable of proof with certainty, such proof must be adduced.” Had the trial court found, from the evidence, an amount of damages, we would not have reversed him unless we had been convinced that his decision was based upon speculation or conjecture. Bogart v. Pitchless Lbr. Co., 72 Wash. 417 , 130 Pac. 490 . However, we cannot force a trial judge to believe a witness appearing before him, nor can we force Trim to accept the testimony of any witness if he does not *303 believe such witness qualified. We said, in Bogart v. Pitchless Lbr. Co., supra: “Whether a witness is competent to express an opinion depends largely upon the discretion and sound judgment of the trial judge.” We cannot say, from the evidence, that the trial court abused its discretion in this regard. It may very well be that some of us, had we been trying this case, would have found some amount of damages from the evidence presented. But we are not permitted to substitute our judgment for that of the trial court. Here we have a decision by a trial judge who had about • forty years experience on the bench. He presided over the trial fairly, patiently, and competently. There were no errors committed throughout the trial. At its close, he was faced with this dilemma. He did not believe the testimony of witnesses, which resulted in his inability to find an amount of damages. He was not required to believe the witnesses. We have no right to force him to do so. He was not required (until now) to tell counsel to get additional testimony, or, on his own motion, to appoint appraisers or experts to obtain and bring in additional testimony. His duties as trial judge were completed. He did the only thing he could have done under the circumstances. He allowed nominal damages. The judgment should be affirmed. Mallery, J., concurs with Schwellenbach, J. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9601520. Public record. Not legal advice.