Breimon v. General Motors Corp., 1256--I

CourtCourt of Appeals of Washington
Citation8 Wn.App. 747,509 P.2d 398
Docket NumberNo. 1256--I,1256--I
PartiesKurt BREIMON, Respondent, v. GENERAL MOTORS CORPORATION, Appellant.
Decision Date16 April 1973

Page 747

8 Wn.App. 747
509 P.2d 398
Kurt BREIMON, Respondent,
No. 1256--I.
Court of Appeals of Washington, Division 1, Panel One.
April 16, 1973.

Page 748

[509 P.2d 401] Elvidge, Veblen, Tewell, Bergmann & Taylor, Duane Tewell, Richard J. Thorpe, Thomas A. St. Pierre, Seattle, for appellant; Ross L. Malone, Detroit, Mich., of counsel.

Davies, Pearson, Anderson, Gadbow & Hayes, P.S., Alvin A. Anderson, Tacoma, for respondent.

CALLOW, Judge.

This is a products liability action, but the issues raised are evidentiary. Error is assigned to the suppression of the testimony of the plaintiff's former wife, the exclusion of evidence of the plaintiff's driving record, the admission of evidence of a comparable happening, the allowance of the demonstration of an experiment by expert witnesses, the alleged misconduct of counsel in introducing evidence of a subsequent design change, and the supposed unfairness in the opportunities for discovery given to the respective parties.

Kurt Breimon suffered permanent paraplegia on March

Page 749

8, 1967, when his 1967 Pontiac left the road in North Dakota and he was thrown out. He had purchased the automobile in Vancouver, Washington, in 1966. After the purchase, he received written advice from the manufacturer that the steering shaft might have been improperly installed, and he was instructed to contact a Pontiac dealer for repair of the steering. The car was taken to a Pontiac dealer in North Dakota where it was serviced in January 1967, and the accident occurred 6 weeks later. The plaintiff claimed that the automobile manufacturer was responsible for his injuries because of breach of warranty and because of negligence in the design and construction of the steering mechanism. A $350,000 jury verdict was returned in his favor.


The plaintiff testified that just as the car began to slide on frost on the road the steering wheel caught and he could not steer out of the skid to prevent the crash. His former wife was called to testify to a conversation with her then husband which she said occurred in a hospital after the accident. In the offer of proof made in the absence of the jury, she stated that Mr. Breimon told her, in the presence of others and the plaintiff's now deceased grandfather, that he Thought he turned to spit out the car window, hit some ice and went off the road. Defense counsel further offered her negative testimony that Mr. Breimon never reported to her a 'catch' in the steering. She was not permitted to testify to the jury.

RCW 5.60.060(1) reads:

(1) A husband shall not be examined for or against his wife, without the consent of the wife, nor a wife for or against her husband without the consent of the husband; nor can either during [509 P.2d 402] marriage or afterward, be without the consent of the other, examined as to any communication made by one to the other during marriage. But this exception shall not apply to a civil action or proceeding by one against the other, nor to a criminal action or proceeding for a crime committed by one against the other, nor to a criminal action or proceeding

Page 750

for a crime committed by said husband or wife against any child of whom said husband or wife is the parent or guardian.

The purpose of the statute is to engender a free flow of communication between a husband and wife so the relationship will be without reservation, open, trusting, confident and free of fear of disclosure, come what may. 8 J. Wigmore, Evidence §§ 2332, 2336, 2340 (J. McNaughton rev. ed. 1961).

Trust would be dispelled if a spouse was required to analyze each statement as to whether it might later be, as defendant argues, a 'socially desirable objective' to disclose the confidential communication. State v. Thorne, 43 Wash.2d 47, 55, 260 P.2d 331 (1953), said:

the privilege against having the husband or wife testify as to confidential communications between the two, . . . endeavors to encourage between husband and wife that free interchange of confidences that is necessary for mutual understanding and trust. . . . the greatest benefits will flow from the relationship only if the spouse who confides in the other can do so without the fear that at some later time what has been said will rise up to haunt the speaker.

Marital communications are presumptively confidential. Blau v. United States, 340 U.S. 332, 71 S.Ct. 301, 95 L.Ed. 306 (1951). The confidence between the parties embraces all knowledge communicated to a spouse because of the relationship. State v. Americk, 42 Wash.2d 504, 256 P.2d 278 (1953); State v. Robbins, 35 Wash.2d 389, 213 P.2d 310 (1950). Divorce does not allow the spouse to whom the confidential communication was made to release it. State v. Thorne, Supra, 43 Wash. at 56, 260 P.2d 331; 8 J. Wigmore, Evidence § 2341 (J. McNaughton rev. ed. 1961). A spouse should not be placed in fear that a future change in marital status would find his innermost secrets broadcast. State v. Snyder, 84 Wash. 485, 147 P. 38 (1915).

Third persons may testify to conversations between spouses that were overheard. Wolfle v. United States, 291 U.S. 7, 54 S.Ct. 279, 78 L.Ed. 617 (1934); State

Page 751

v. Barnhart, 73 Wash.2d 936, 442 P.2d 959 (1968); State v. Slater, 36 Wash.2d 357, 218 P.2d 329 (1950). The recent cases in our state and Professor Wigmore contemplate that the communication, not confidential because overheard by a third party, Could only be related by the third party. State v. Barnhart, Supra; State v. Thorne, Supra; 8 J. Wigmore, Evidence § 2339 (J. McNaughton rev. ed. 1961). The statutory language supports this interpretation. While, on the one hand, a statute creating a privilege, being in derogation of common law should be strictly construed (Randa v. Bear, 50 Wash.2d 415, 312 P.2d 640 (1957)) yet, on the other, it should be construed so as to further its purpose. In re Estate of McLaughlin,4 Wash. 570, 30 P. 651 (1892); Pound, Common Law and Legislation, 21 Harv.L.Rev. 383 (1908); Stone, The Common Law in the United States, 50 Harv.L.Rev. 4 (1936). Reason also indicates that successful communications may not be disclosed and that only the overhearing third person may testify as to the failure to successfully communicate with confidentiality. It is the third person who Knows what was not kept confidential successfully; it is the third person who would be free normally of antipathies; and it is the third person who would be unbiased and objective most probably.

It is acknowledged that courts at times in contests between the spouses or in criminal actions have found a lack of confidentiality in certain communications without [509 P.2d 403] requiring the overhearing third person to establish admissibility. See Picciurro v. United States, 250 F.2d 585 (8th Cir. 1958); Swearingen v. Vik, 51 Wash.2d 843, 322 P.2d 876 (1958); 97 C.J.S. Witnesses § 271 (1957); Annot., 63 A.L.R. 107 (1929). Overriding considerations are not present in the instant situation however.

The position of the defendant is that since the ex-wife would testify that others were present, and she believed the dead grandfather heard the communication, that it was not confidential. The hearing spouse should not have the right to reveal the communication by testifying that others

Page 752

were present and thereby pre-empt the speaking spouse of his right to claim or waive the privilege. This would permit admissibility by the bootstrap testimony of the former spouse. Thereby the threat of revelation would be resurrected and repose in the heart of the spouse who wishes to trust but does not desire events to prove him gullible, would be dispelled. See State v. Kephart, 56 Wash. 561, 106 P. 165 (1910). To permit the hearing spouse to establish admissibility by declaring a third person was present would also as State v. Clark, 26 Wash.2d 160, 168, 173 P.2d 189 (1946), remarked in discussing the sister subject of marital privilege, permit testimony to 'enter through the back door which the statute forbids to enter through the front door.' State v. Winnett, 48 Wash. 93, 92 P. 904 (1907). To enable the court to judge admissibility on the sole testimony of the hearing spouse, the communication would need to be disclosed so that the mischief intended to be guarded against would be committed in the process of ascertaining whether the communication was indeed confidential in character. Exclusion may be inexpedient; but unless such testimony is excluded, a qualification is added to the statute which undermines the public policy of encouraging openness in a marriage. A confidentiality limited by permitting the confidant to establish its admissibility is no confidentiality at all. The testimony was properly excluded.


The defense was precluded from introducing testimony by the plaintiff's former wife that, 'He always was a fast driver.' 'And he always drove that way, dangerously.'

A statement was made by the plaintiff claiming that he never drove fast. The defendant acknowledges this statement was made in a deposition introduced by the defendant at the trial. The defendant therefore, claims error in the situation it created. The trial judge had discretion to refuse the requested rebuttal by the defendant of the matter

Page 753

raised by the defendant. Mullin v. Builders Dev. & Fin. Serv., Inc., 62 Wash.2d 202, 381 P.2d 970 (1963); Gillett v. Lydon, 40 Wash.2d 915, 246 P.2d 1104 (1952).

The defense states it wishes to introduce this testimony to (a) contradict the plaintiff's testimony, (b) show that the speed at which the plaintiff drove was a proximate cause of the accident, and (c) show that the plaintiff assumed the risk of driving a car he knew to be defective on an icy road at high speed. The evidence of the plaintiff's bad driving habits was excluded appropriately because it was proffered to infer that the cause...

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