Barnett v. Bull

• Decision Date: 02 December 1926
• Docket Number: 20125.
• Citation: 141 Wash. 139,250 P. 955
• Court: Washington Supreme Court
• Parties: BARNETT v. BULL et ux.

250 P. 955

141 Wash. 139

BARNETT v. BULL et ux.

No. 20125.

Supreme Court of Washington

December 2, 1926

Department 2.

Appeal from Superior Court, King County; Frater, Judge.

Action by Joseph Barnett against R. E. Bull and others, in which defendants Bull and Standring cross-complained against each other for damages. Judgment for plaintiff, and defendant Bull and wife appeal. Reversed.

Roberts & Skeel, of seattle, for appellants.

Robbins & Rickles, of Seattle, for respondent.

MACKINTOSH J.

A triparty automobile accident occurred on the highway north of Seattle, and this lawsuit resulted, in which the respondent claimed to be entitled to damages from the appellant Bull and defendant Standring, both of whom he accused of negligence in the operation of their automobiles resulting in his injury. Respondent's automobile and appellant's automobile were both traveling southerly while Standring's was coming in an opposite direction. Bull and Standring, while each denying his liability to the respondent, each contended that the negligence of the other was responsible for the respondent's injury, and both Bull and Standring cross-complained against each other for damages. Neither of them made any claim against the respondent for damages, however. The case assuming this hydraheaded condition went to trial, and resulted in a verdict in favor of respondent against both Bull and Standring. A new trial was granted to Standring, and he does not appear in this appeal, and, a new trial and judgment notwithstanding the verdict having been denied to Bull, he appeals.

The first error alleged is that the court prevented the appellant from proving by the respondent that immediately after the accident, and at its scene, the respondent had stated that the appellant was not negligent, and that he did not blame the appellant for the accident. This offer was made in various forms and through various witnesses, but was refused on the objection of Standring, for to admit it would have worked to Standring's prejudice, in that it would have tended to fasten the liability upon him and exculpate Bull. This was not sufficient reason, however, for not permitting this testimony to go to the jury, for, although there was a controversy between Bull and Standring as to who was responsible, there was also a controversy as between respondent and both Bull and Standring, the respondent seeking to hold each of them, and it was proper and competent for the appellant Bull to attempt to escape the liability to the respondent by showing that the respondent had made statements such as those sought to be proven. Admissions by a party are competent evidence against him, and testimony in accord with the offers should have been allowed to be introduced.

The next error relied on is that testimony was introduced, over the appellant's objection, of a conversation between two witnesses, occurring more than a mile from the scene of the accident and prior to the time thereof; the conversation being substantially that one of the persons, seeing the appellant's and respondent's cars passing, said to the other that the appellant was driving in a careless manner. It is attempted to justify the admission of this testimony on the ground that it was part of the resgestae but under no rule on that subject which has yet come to our attention could this testimony have been admitted. The general rule in regard to these ex parte statements admissible as res gestae, is that they must have been made under...