Brown v. Coca-Cola Bottling, Inc.
Decision Date | 24 September 1959 |
Docket Number | No. 34833,COCA-COLA,34833 |
Citation | 54 Wn.2d 665,344 P.2d 207 |
Parties | Wilmer O. BROWN, Respondent, v.BOTTLING, INC., Appellant. |
Court | Washington Supreme Court |
Clarke, Clarke, Albertson & Bovingdon, Seattle, for appellant.
Heckendorn & McNair, Seattle, for respondent.
Defendant appeals from a judgment entered upon a jury verdict in favor of plaintiff. The nature of the action is fairly summarized in the trial court's instruction No. 1 to the jury, as follows:
'This is an action to recover damages alleged to have been sustained by the plaintiff Wilmer O. Brown as the result of drinking part of the contents of a bottle of a soft drink called Coca-Cola, bottled by the defendant corporation.
'Plaintiff alleges that he was unable to return to work for some time thereafter because of being made ill as a result of drinking from this bottle containing glass particles, and that he has suffered great pain and nervous shock and has necessarily incurred medical expenses for treatment of his condition Plaintiff further alleges that he was been damaged by reason of this illness and impairment of his health in the sum of $10,000.
The jury found in favor of plaintiff in the sum of $1,214. Defendant's motion for a new trial was denied and the court entered judgment upon the verdict, from which defendant appeals.
Appellant assigns as error the denial of its motion for new trial, the admission and exclusion of certain evidence, the giving of instruction No. 1 (quoted above), and the court's refusal to give two requested instructions.
We shall first consider appellant's assignment of error No. 1, which concerns the action of the trial court in permitting respondent to give the following testimony on direct examination:
* * *
'
The above quoted testimony was objected to by appellant as being hearsay and was admitted only after extensive argument had been previously made to the court in the absence of the jury.
Clearly, the testimony of which appellant complains is not within the ban of the hearsay evidence rule. The words of Dr. Evans were not offered to prove their truth or falsity (i. e., as to whether respondent would have to undergo a major operation), but merely to establish the state of mind of respondent Brown which resulted from the doctor's statement to him. As such, respondent's testimony came within a well-recognized exception to the hearsay rule. Olson v. Seldovia Salmon Co., 1915, 88 Wash. 225, 152 P. 1033; Schmitz v. Mathews, 1926, 141 Wash. 278, 251 P. 571; Nelson v. Bjelland, 1939, 1 Wash.2d 268, 95 P.2d 784, 125 A.L.R. 641; Moen v. Chestnut, 1941, 9 Wash.2d 93, 113 P.2d 1030; Palin v. General Construction Co., 1955, 47 Wash.2d 246, 287 P.2d 325. The value of this evidence did not hinge upon the credibility of Dr. Evans, but rather upon that of respondent, who was testifying on the stand and was subject to cross-examination.
In arguing to the trial court for the admissibility of this testimony, respondent's counsel stated, as part of his offer of proof:
(Italics ours.)
The following quotation from Ferrara v. Galluchio, 1958, 5 N.Y.2d 16, 176 N.Y.S.2d 996, 998, 152 N.E.2d 249, is precisely in point:
If appellant's counsel wished to have the jury's consideration of this testimony specifically limited to the purpose for which it was offered, it was his duty to request the court to instruct the jury accordingly. We so held in Olson v. Seldovia Salmon Co., supra, which was an action by an employee against an employer for personal injuries sustained in Alaska because of the alleged negligence of the employer in maintaining dangerously defective machinery. The following portion of the opinion in that case is applicable here:
'Counsel for appellant contend that the trial court erred in admitting, over their objection, certain testimony showing actual knowledge on the part of appellant's superintendent of the existence of the projecting shaft and the key thereon. With a view of so showing, and with the statement on the part of respondent's counsel that it was 'simply to show knowledge,' a witness for respondent was asked and answered as follows:
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