Ball v. Smith
| Citation | 556 P.2d 936,87 Wn.2d 717 |
| Decision Date | 18 November 1976 |
| Docket Number | No. 44092,44092 |
| Parties | Mattie BALL and Travis Jefferson, Individually, and Mattie Ball as guardian ad litem for Kelly Jefferson, Appellants, v. Roy H. SMITH and Patricia K. Smith, his wife, Respondents. |
| Court | Washington Supreme Court |
Murray, Dunham & Waitt, Wayne Murray, Seattle, for appellants.
Edwards & Wetherall, Jack E. Wetherall, Seattle, for respondent.
The jury returned a verdict in favor of the respondent landlord in this personal injury action brought by Mattie Ball (who will be referred to herein as the appellant) on behalf of herself individually and as guardian ad litem for her infant son, Kelly Jefferson. The Court of Appeals having reversed the trial court in a two-to-one decision (Ball v. Smith, 14 Wash.App. 258, 540 P.2d 906 (1975)), we accepted the case for review pursuant to CAROA 50(e).
Viewing the evidence in the light most favorable to the respondent, as we would be required to do if its sufficiency was challenged (Osborn v. Chapman, 62 Wash.2d 495, 384 P.2d 117 (1963); O'Brien v. Artz, 74 Wash.2d 558, 445 P.2d 632 (1968)), the jury was entitled to find the following. The respondent went to the appellant's apartment on a Saturday, in response to her complaint that an electrical outlet above the baseboard in one of the bedrooms was not functioning. Upon the appellant's demand that the situation be corrected, and assuming that the services of an electrician could not be obtained on a Saturday, the respondent devised a method of conveying the electrical current to the wall outlet through a 10- to 12-foot extension cord attached to the ceiling light outlet, strung over to the wall and attached to a nail near the top of the window directly above the wall outlet, then dropped down the wall and plugged into one of the two receptacles in the outlet, which was located beside a double bed. In this manner the second receptacle was activated.
The respondent warned the appellant to be careful with the device until a permanent repair could be made. The respondent knew that there was a small child living in the apartment, but did not know that there was an infant, although there was a crib in the room.
Sometime later, the appellant removed the plug from the wall receptacle, thus leaving the live prongs exposed. The following day, she placed her 7-month-old son on the bed within reach of the cord. He was found shortly after with the plug in his mouth. The child suffered severe burns and permanent disfigurement.
The court instructed the jury regarding the respective duties and functions of the court and the jury, the burden of proof, proximate cause, negligence, contributory negligence, 1 duty of care, the presumption that others will use ordinary care, and the fact that contributory negligence of a parent will not bar recovery by a child. Also, appropriate damages instructions were given.
Upon appeal, represented by different counsel, the appellant argued that the thrust of six of the instructions was to permit the jury to find erroneously that a 7-month-old infant can be guilty of contributory negligence. The Court of Appeals did not find it necessary to pass upon this contention. The two judges who signed the majority opinion said that, inasmuch as a new trial should be granted upon another ground urged by the appellant, if error was present in the instructions given, counsel would have an opportunity to prevent it on retrial.
Since we conclude that the majority was in error in ordering a new trial, we will not comment upon the propriety of this disposition of the contention, 2 but will look to see whether the assignments of error directed to these instructions properly can be considered.
Two of the instructions complained of were requested by the appellant. A party may not request an instruction and later complain on appeal that such requested instruction was given. Vangemert v. McCalmon, 68 Wash.2d 618, 414 P.2d 617 (1966).
It is also the general rule that instructions to which no exceptions are taken become the law of the case and cannot be reviewed on appeal. O'Brien v. Artz, supra; Adamson v. Traylor, 60 Wash.2d 332, 373 P.2d 961 (1962). The appellant, however, maintains that it is not necessary to take exceptions in order to allege error if the rights of an infant are involved. It is true that we have held in equitable actions involving the property of infants, that the court will protect those interests even though the infant is represented by a guardian, where manifest error prejudicial to the rights of the infant is present. In re Ivarsson, 60 Wash.2d 733, 375 P.2d 509 (1962); Seattle First Nat'l Bank v. Crosby, 42 Wash.2d 234, 254 P.2d 732 (1953), and In re Deming, 192 Wash. 190, 73 P.2d 764 (1937). In two of these cases we found a conflict of interest between the guardian and the infant, which discouraged a diligent protection of the infant's rights; and in the third, a declaration of the rights of children whose guardian ad litem had not appealed was necessarily involved in the interpretation of a trust and was found to be appropriate and desirable.
Our attention is drawn to no case in which this principle has been applied in an action at law, where the infant was represented by a guardian ad litem and by counsel, and where there was no conflict between the interests of the infant and the guardian, and no reason to fear that the claim of the infant was neglected by its guardian or its counsel. We have said that a consent judgment, compromising a suit on behalf of minors, duly represented by a guardian ad litem, will not be set aside for alleged constructive fraud, since there is no distinction between decrees in favor of adults and minors duly represented. Burke v. Northern Pac. Ry. Co., 86 Wash. 37, 149 P. 335 (1915). We said there that it was to be presumed that the trial court, as well as the guardian, protected the interest of the minors and further, that the judgment would not be set aside except upon a showing of fraud or collusion.
We are of the opinion that in a case such as this where property of the infant is not involved and there appears to have been no motive to neglect his cause, the ordinary rules of procedure should apply, in the absence of a showing of manifest error, prejudicial to the interests of the infant.
Here, it is not claimed that the instructions to which error is assigned were erroneous statements of the applicable law, but rather that they were not so phrased as to make it clear to the jury that a 7-month-old infant could not be guilty of contributory negligence. While the concept that an infant of 7 months cannot be guilty of contributory negligence might have been further clarified, had appropriate instructions been requested, we find it improbable that the jury could have been misled. It would be unreasonable to assume that any jury would understand an instruction defining reasonable care to be applicable to a 7-month-old infant. Furthermore, there was no contention on the part of the respondent that the accident was caused by negligence of the baby. On the other hand, it was the appellant's theory that the infant pulled the cord from the wall outlet, a theory that she could scarcely have been expected to adopt if she thought it would lead the jury to believe that the infant was guilty of contributory negligence in so doing. We find no reasonable basis in the record to suppose that the jury may have based its verdict on a finding that the accident was caused in part by contributory negligence of the infant.
No exceptions having been taken to the instructions and no manifest error, prejudicial to the rights of the infant, appearing, we will not look further into the assignments directed to the giving of instructions.
The remaining contention of the appellant and the one upon which a majority of the court of Appeals thought a new trial should be ordered, concerns the rejection by the trial court of certain testimony which she proposed for the purpose of showing that the respondent was guilty of negligence per se.
While the appellant had not pleaded a violation of the Electrical Code of the City of Seattle (ordinance No. 4.100 Et seq.), 3 did not offer the code or any part of it in evidence, and did not request any instruction embodying any of its provisions, she offered the testimony of the city's chief electrical inspector to prove that the device concocted by respondent was in violation of that code.
The witness revealed that the opinion which he would give--that the device created by the respondent was in violation of the ordinance--would be based upon the fact that it presented the same kind of hazard which the ordinance was designed to prevent, although he admitted that it was not expressly prohibited.
It is the established and unquestioned rule that it is in the province of the court, and not the jury, to interpret a statute or ordinance and to determine whether it applies to the conduct of a party. Kness v. Truck Trailer Equip. Co., 81 Wash.2d 251, 501 P.2d 285 (1972); Wells v. Vancouver, 77 Wash.2d 800, 467 P.2d 292 (1970). It is accordingly the general rule that a witness is not permitted to give his opinion on a question of domestic law or upon matters which involve questions of law. Valley Land Office, Inc. v. O'Grady, 72 Wash.2d 247, 432 P.2d 850 (1967); Seattle v. Erickson, 99 Wash. 543, 169 P. 985 (1918); 31 Am.Jur.2d Expert and Opinion Evidence § 69 (1967); 7 J. Wigmore, Wigmore on Evidence § 1952 (3d ed. 1940). As was said in State v. Ballard, 394 S.W.2d 336 (Mo.S.Ct.1965), one of the cornerstones of our system of jurisprudence is that questions of fact are to be determined by a jury, and that all matters of law are to be determined and declared by the court.
The applicability of the Seattle Electrical Code, a duly enacted ordinance of the city, was a matter to be determined by the trial court. That court...
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