Bowker v. McDonald

• Decision Date: 10 January 1957
• Docket Number: No. 33646,33646
• Citation: 305 P.2d 800,49 Wn.2d 633
• Parties: Mr. and Mrs. Roy BOWKER, husband and wife, Appellants, v. Robert A. McDONALD and Jane Doe McDonald, his wife, Respondents, Harry Tamalwash, Defendant.
• Court: Washington Supreme Court

Page 633

49 Wn.2d 633

305 P.2d 800

Mr. and Mrs. Roy BOWKER, husband and wife, Appellants, v. Robert A. McDONALD and Jane Doe McDonald, his wife, Respondents Harry Tamalwash, Defendant.

No. 33646.

Supreme Court of Washington, Department 2.

Jan. 10, 1957.

Arthur W. Kirschenmann, Yakima, for appellants.

Gavin, Robinson & Kendrick, Yakima, for respondents.

HILL, Justice.

This is an appeal from an order granting defendants McDonald (respondents) a new trial on the ground of newly discovered evidence after a verdict of $5,330 for the plaintiffs (appellants). One Harry Tamalwash, an additional defendant, who was cross-complained against by defendants McDonald and against whom the jury brought in a verdict, is not involved in the motion for a new trial or in the appeal from the order granting it. The McDonalds will be referred to hereinafter as though they were the only defendants.

The plaintiffs testified that they, in their car, were following the Tamalwash car immediately before the collisions involved in this proceeding, and that the Tamalwash car was being held on a course with its left wheels some eighteen inches to two feet over the center line of the highway. The jury could and apparently did conclude that the defendant driver, approaching from the opposite direction, should have avoided the Tamalwash car but instead collided with it and then continued across the highway out of control and collided with the plaintiffs' car, which by that time had been driven off the road to its right in an effort to avoid a collision.

The newly discovered evidence consists of a diagram and a statement, both signed by plaintiff Roy Bowker, which indicate that the Tamalwash car, instead of remaining just over the center line, had suddenly swerved to the left and into the defendants' car. This corroborates the defendants' version of what happened.

The adjuster for the defendants' insurance company secured the diagram and statement from Roy Bowker and sent them to the insurance company's Seattle office shortly after the accident and months before the trial. In some 'inexplicable fashion' (to quote the language of the insurer's claims manager), the diagram and statement were not delivered to the attorneys who were retained by the insurance company to defend the case and who, likewise, were the defendants' choice to represent them as to any excess of liability over five thousand dollars, the amount of their insurance. The attorneys were in no way responsible for the 'inexplicable' failure of the insurance company to transmit to them the diagram and statement now claimed to be newly discovered evidence.

We will assume, in line with the trial court's memorandum opinion, that the two documents in question probably would change the result if a new trial were granted; that they are material to the issue; and that they are not merely cumulative and impeaching. We cannot agree, however, that they meet the other two requisities to the granting of a new trial on the basis of newly discovered evidence, i.e., that they could not, with reasonable diligence, have been discovered before the trial, and that they were newly discovered after the trial. For a statement of the requirements which must be satisfied before newly discovered evidence will warrant the granting of a new trial, see Doss v. Schuller, 1955, 47 Wash.2d 520, 524, 288 P.2d 475; Paddock v. Todd, 1950, 37 Wash.2d 711, 721, 225 P.2d 876; Stibbs v. Stibbs, 1950, 37 Wash.2d 377, 379, 223 P.2d 841. The only reason this evidence was not available for use at the time of trial is that the insurance company, which had assumed the defense of the action, did not advise the attorneys of its existence.

The existence of the insurance, the five thousand dollar limitation of liability, the procuring of the diagram and statement by the claims adjuster for the insurance company, and the retention of the insurance company's attorneys by the defendants as to any liability in excess of that covered by their insurance, appears from affidavits filed in support of the motion for a new trial. The insurance policy itself is not a part of the record, and the exact extent of the control and obligation of the insurance company in relation to the investigation, preparation, and defense of the plaintiffs' action against the defendants cannot be determined by this court. It is abundantly clear, however, that the two documents referred to are not newly discovered evidence in so far as the insurance company is concurned.

The defendants personally knew nothing of the affidavit and diagram and, in the absence of other circumstances which we deem to be controlling, those documents might well constitute newly discovered evidence entitling them to a new trial.

We are here concerned with the relationship of the insurer to the insured when the insurer takes over the defense of such an action as the present. That relationship depends upon the contract (i. e., the insurance policy), which in this case, as we have indicated, is not before us.

The cases in which that relationship is discussed are, almost without exception, actions by the insured against the insurer to recover amounts paid out by the insured in excess of the policy limits. It appears that the insurer is generally held to be the agent of the insured when it takes over the handling of the claims and litigation which arise under the policy....