Bristol v. Streibich

• Decision Date: 19 March 1946
• Docket Number: 29432.
• Citation: 24 Wn.2d 657,167 P.2d 125
• Parties: BRISTOL v. STREIBICH et ux.
• Court: Washington Supreme Court

167 P.2d 125

24 Wn.2d 657

BRISTOL v. STREIBICH et ux.

No. 29432.

Supreme Court of Washington

March 19, 1946

Department 2

Action by William Bristol against William Streibich and another to recover money allegedly given by the plaintiff to the defendants in consideration of the defendants' promise to support plaintiff for the rest of plaintiff's life. From the judgment, the defendants appeal.

Affirmed.

Appeal from Superior Court, King County; Calvin S Hall, judge.

Acheson Smith & Kinney, of Seattle, for appellants.

Rummens & Griffin, of Seattle, for respondent.

ROBINSON Justice.

Appellants' counsel frankly state, in opening the argument in their brief: 'The principal questions Before the court are largely questions of fact rather than questions of law, * * *.' We have found that to be the case, and it is further our opinion that the only substantial question of law presented by the appeal is raised by Assignment of Error No VIII, which reads as follows: 'The court erred in permitting counsel for plaintiff to ask the leading question set forth (St. 112, Line 25) over the objection of counsel for defendants.'

In the comparatively early case of Harris v. Halverson, 23 Wash. 779, 786, 63 P. 549, 550, this court said: 'The appellant calls attention to two leading questions, one of which was answered over his objection. Allowing or refusing leading questions is not generally a ground for reversal, unless there appears to be a clear abuse of discretion. We are not prepared to say there was such an abuse as to prejudice the appellant in this instance.' (Italics ours.)

No authority is cited in that opinion for the rule we have italicized in the above quotation; nor has the case been cited as to that rule in any of our subsequent decisions; nor do we find any later decision in our reports which is directly in point. We have, therefore, thought it desirable to inquire as to what the rule is in other jurisdictions. We have found, in pursuing the inquiry, that the rule, as set out in Harris v. Halverson, is universally applied by other appellate courts. Under 'Appeal and Error, k971(5), Leading Questions,' in the first Decennial Digest, twenty-nine decisions are cited in support of the following text: 'Allowance of a leading question is within the discretion of the trial court and cannot be reviewed.'

One Texas case is cited to the contrary: International & G. N. Ry. Co. v. Dalwigh, 92 Tex. 655, 51 S.W. 500.

Under the same topic and key number, the 2d Decennial Digest cites thirty-six cases, including two from Texas, in support of the following text: 'The trial court has a large discretion as to allowing leading questions, the exercise of which will not be disturbed unless it is clearly abused.'

No cases are cited to the contrary.

Under the same topic and key number, the 3d Decennial Digest cites sixteen cases supporting the same text, and again, none to the contrary.

Under the same topic and key number, in the 4th Decennial Digest, twelve cases are cited which approve the rule, and none to the contrary.

These decisions, it will be noted, cover the whole field of American decisions from 1897 to 1936, inclusive, a period of forty years, and, out of ninety-three cases, but one is adverse to the rule stated in our opinion in Harris v. Halverson, supra, and even that decision has been overruled, at least sub silentio, by subsequent cases from the same jurisdiction.

We have examined all of the testimony given in the case, with particular reference as to whether the permitting an answer to the leading question complained of was an abuse of discretion or was in any way prejudicial to the appellants. We do not feel that the trial judge abused his discretion, and are quite unable to believe that the incident had any prejudicial effect. This cause was tried by the court without a jury, and trial judges are experienced in the evaluation of testimony. We, therefore, hold that the first assignment of error is not well taken.

The assignments of error, other than VIII, which has hereinBefore been quoted and discussed are as follows:

'I. The court erred in denying appellants' motion for a New Trial.'

We assume that this assignment has been abandoned. The appellants' brief contains no argument in support of it, and its closing prayer is solely for the dismissal of the action.

'II. The court erred in refusing to make Findings of Fact and Conclusions of Law as proposed by defendants.'

In what respect the court erred is not suggested or in any way pointed out in this assignment. This court will not assume the burden of searching through the thirteen typewritten pages of counsels' twenty-two proposed, but rejected, findings to determine whether the trial court erred in failing to include one or more of them in the findings made.

'III. The court erred in finding for the plaintiff and refusing to find for defendants.'

This is a mere combination of Assignments II and IV.

'IV. The court erred in signing and filing the Findings of Fact proposed by the plaintiff.'

In what respect? Here, again, the burder is put upon the court of searching through the findings to see if, perchance, it can locate some error or errors therein. It is the appellants' duty, in assigning error in the findings, to point out the portion or portions thereof which they claim to be erroneous.

'V. The court erred in finding the existence of a contract, and in finding one contrary in its terms to all the evidence of both plaintiff and defendants.'

This is a sufficiently definite assignment.

'VI. The court erred in finding any breach of contract by the defendants.'

This is a proper assignment.

'VII. The court erred in refusing to make Findings of Fact at all upon the points requested by defendants in their request for Findings of Fact.'

Appellants' counsel not only submitted thirteen pages of proposed findings of fact, but filed an alternative demand, headed by the following request: 'Come now the defendants and request findings of fact upon the following matters in the event the court refuses to sign the proposed findings of fact and conclusions of law presented by the defendants herewith.'

This is followed by three pages containing a schedule of twenty-three separate and distinct items on which a specific finding is demanded. Apparently, this court is expected to first check this list against the findings ultimately made, and then to determine whether it was error to fail to include any one of the twenty-three requested which does not happen to have been included therein. This, too, is a burden which the court will not assume. It is not our function or duty to search the record for errors, but only to rule as to errors specifically claimed.

'IX. The court erred in denying defendants' motion for dismissal of the complaint with prejudice at the end of plaintiff's case.'

This is a proper assignment, but clearly without merit. The court properly disposed of it in ruling as follows:

'The Court: The evidence shows he [the plaintiff] did turn over considerable money and he said it was for the purpose of obtaining a home in which he should live as a member of the family. That is sufficient to put you on your defense.

'Mr. Acheson: He has failed to prove the measure of damages.

'The Court: That, I think, is for the Court to decide. I think the Court, after hearing all the evidence, should determine what amount of damages, if any, he is entitled to. Motion denied.'

The evidence at that point did show that Bristol had turned over considerable money to Streibich, and the court could have added that defendnat had so admitted Before the case came to trial. We quote briefly from the affirmative defense set up in his answer: 'That the plaintiff had just sold his mill and on January 15, 1937, gave to the defendants the sum of $500.00. Plaintiff was quite ill at this time and on January 17, two days later, plaintiff was confined to his bed and he called the defendant, William Streibich, in to his room and stated that he had something for the defendant. He showed to the defendant, William Streibich, a cashier's check for $1850.00 and said, ' Here, Bill, I want you to have this for all that you have done for me.' The defendant, William Streibich, accepted the check and thanked him for it and he thereafter took and cashed the same and has used the money for his own purposes.' (Italics ours.)

We have left for disposition Assignments V and VI.

The plaintiff, Bristol, was seventy-six years at the time of the trial. The theory of his action, as pleaded, appears to have been that the defendants had secured permanent possession of his money and other property by active fraud, in that the defendants, after having been given temporary possession thereof for a limited purpose, contrived to get permanent possession by making a purported contract to support him for the rest of his life, which they later repudiated by claiming that the money and other property were rightfully acquired by outright gifts.

Appellants have not only stated in their brief that the principal questions Before this court are largely questions of fact but we further find from the record that, when the trial judge, at the close of the trial, asked counsel for both parties to furnish written briefs, Mr. Acheson responded: 'This is primarily a question of facts.' From the foregoing analysis, it is apparent that the questions of fact to be inquired into on appeal are: Did the defendants purport to make the contract as alleged? And, if it is found that they did: 'Did they refuse to perform their part of that agreement? The answer to these questions must be deduced from the three hundred sixty-six pages of oral testimony and twenty-six documents sent up as the statement of...