Bushman v. New Holland Division of Sperry Rand Corp., 42746
| Citation | 83 Wn.2d 429,518 P.2d 1078 |
| Decision Date | 07 February 1974 |
| Docket Number | No. 42746,42746 |
| Parties | Sharon BUSHMAN, Personal Representative of the Estate of Milo K. Bushman, Deceased, Petitioner, v. NEW HOLLAND DIVISION OF SPERRY RAND CORPORATION, a foreign corporation, et al., Respondents. |
| Court | United States State Supreme Court of Washington |
Ken Earl, Moses Lake, for petitioner.
Randall & Danskin, A. A. Lundin, Spokane, for respondents.
Sharon Bushman, plaintiff-petitioner, surviving wife of Milo Bushman and personal representative of his estate, brought this action for the wrongful death of her husband. She alleged his death was caused by the defective condition of a New Holland Self-Propelled Haro-Bed, Model No. 1045, an automatic bale loading wagon, manufactured by defendant-respondent New Holland, who purchased the manufacturing rights from a predecessor. The haro-bed was owned by defendants-respondents Grant Nelson and Russell Nelson and borrowed from Grant Nelson by decedent under an agreement whereby farm machinery was loaned to decedent and his father, Martin Bushman, in exchange for farm work done by them.
Milo and Sharon Bushman lived on a farm in Quincy, Washington. On August 5, 1972, Milo was operating the haro-bed for the purpose of hauling baled hay. After two bales of hay were set on the second table of the haro-bed, the first table became stuck in the up position. While attempting to adjust the machine, decedent was crushed to death when the first table returned to its down position under hydraulic power activated by a double-acting hydraulic ram.
Plaintiff in her action against New Holland alleged negligence, breach of warranty and strict liability. She claimed that defendant failed to provide a check or relief valve to stop the hydraulic valve from lowering the tables, should a person become entangled in the machinery while attempting to adjust it. Plaintiff also alleged that New Holland: (1) failed to give adequate warning of the dangers, hazards and risks involved in the operation of the haro-bed, and (2) failed to provided for a single-acting hydraulic valve to actuate the first table, so that the table would float back to its down position without the assistance of hydraulic pressure.
The complaint also alleged that defendant Grant Nelson was negligent for failing to warn decedent of the proper way to adjust the machine if it malfunctioned.
In December, 1972, a list of 21 interrogatories was served on New Holland by plaintiff. Objections were raised to interrogatories Nos. 3, 5 through 18, and 20, as being immaterial and irrelevant, and in some instances burdensome. Plaintiff moved to compel answers to those interrogatories. The trial court ordered that interrogatories Nos. 14, 15, and 17(a), (b), and (c) be answered but sustained New Holland's objections to interrogatories Nos. 3, 5 through 13, 16, 17(d), and 20. The latter interrogatories dealt with information concerning the acquisition of the haro-bed, its safety requirements and design, safety tests conducted by New Holland on the machine, the number of suits for injuries involving the haro-bed, the reason for discontinuance of the doubleacting hydraulic cylinder, the names of safety committees on which employees of New Holland had served, and the names of persons from whom statements were taken by New Holland concerning the incident. Interrogatory No. 20 also asked for a copy of the statements taken. Plaintiff concedes this request amounted to an invasion of New Holland's work product and was, therefore, improper as an interrogatory.
Plaintiff sought a writ of certiorari to review the trial court's order. This court granted the writ.
The first question to be determined is whether the instant writ of certiorari should have been granted to review a pretrial discovery order. RCW 7.16.040 specifies that certiorari will not lie unless (1) a judicial official acts without or in excess of his jurisdiction, and (2) there is no adequate remedy at law. Defendant contends that, according to Weber v. Biddle, 72 Wash.2d 22, 431 P.2d 705 (1967), which reviewed on appeal an order sustaining objections to interrogatories, the remedy by appeal is adequate in this case and the writ should not have issued.
Ordinarily, this court will not entertain such a writ because the remedy by appeal is generally adequate. However the issuance of a writ of certiorari is to some extent discretionary. State ex rel. Gebenini v. Wright, 43 Wash.2d 829, 264 P.2d 1091 (1953). The reviewing court must retain a measure of latitude in deciding whether to grant certiorari in a particular case. Oliver v. American Motors Corp., 70 Wash.2d 875, 425 P.2d 647 (1967).
In State v. Whitney, 69 Wash.2d 256, 260--261, 418 P.2d 143, 145 (1966), we held that at least two factors enter into a grant of certiorari with respect to interim orders. They are:
((1)) the error alleged is not unlikely to recur in other courts . . . (and (2)) it (the error) involves a patently erroneous construction of a statute, as a result of which the prosecution has been deprived of a long accepted and highly useful and reliable means of establishing responsibility for a crime.
In Whitney, certiorari was sought to review the trial court's order denying the admission of fingerprint impressions taken from defendant. The trial court excluded the evidence on the ground that it was privileged pursuant to RCW 72.50.100. This court issued the writ and held that RCW 72.50.100 was incorrectly interpreted. Such error, likely to reoccur if unchecked, would have interfered with the legitimate prosecution of criminal cases.
Similarly, the alleged error by the trial court in the instant case, in sustaining the objections to the interrogatories, is likely to reoccur if certiorari is not granted. If the alleged error is not corrected, other trial courts could conceivably resort to the same position that was taken by the trial court in the instant case. Also, the trial court's alleged erroneous interpretation of the discovery rules would greatly hinder the plaintiff in her investigation of the case and greatly restrict her ability to present evidence at trial. In such an instance, the remedy by appeal could hardly be said to be adequate.
This court has previously granted extraordinary relief to review pretrial discovery orders pertaining to interrogatories. In State ex rel. Hayashi v. Ronald, 134 Wash. 152, 235 P. 21 (1925), we granted an application for a writ of...
To continue reading
Request your trial
-
Senear v. Daily Journal American
...to lead to the discovery of admissible evidence, subject only to the objection of privilege. Bushman v. New Holland Division of Sperry Rand Corp., 83 Wash.2d 429, 518 P.2d 1078 (1974); CR 33(b); CR Petitioner Daily Journal American, supported by Allied Daily Newspapers as amicus curiae, urg......
-
Cedell v. Farmers Ins. Co. of Wash.
...of discovery is very broad. Coburn v. Seda, 101 Wash.2d 270, 276, 677 P.2d 173 (1984) (citing Bushman v. New Holland Div. of Sperry Rand Corp., 83 Wash.2d 429, 434, 518 P.2d 1078 (1974)). The right to discovery is an integral part of the right to access the courts embedded in our constituti......
-
Heidebrink v. Moriwaki
...evolution of the attorney-client privilege and the current rules for broad pretrial discovery. See Bushman v. New Holland Div. of Sperry Rand Corp., 83 Wash.2d 429, 434, 518 P.2d 1078 (1974). Although no attorney-client privilege case involving statements made by an insured exists in Washin......
-
Seattle Times Company v. Rhinehart
...of Appeals for the Second Circuit in International Products Corp. v. Koons, 325 F.2d, at 407-408. 14 See Bushman v. New Holland Division, 83 Wash.2d 429, 433, 518 P.2d 1078, 1080 (1974). The Washington Supreme Court has stated that when the language of a Washington Rule and its federal coun......
-
Chapter §26.6 Analysis
...matter of the action should be allowed, subject only to the objection of privilege. Bushman v. New Holland Div. of Sperry Rand Corp., 83 Wn.2d 429, 434, 518 P.2d 1078 (1974); see also Flower v. T.R.A. Indus., Inc., 127 Wn.App. 13, 38, 111 P.3d 1192 (2005), review denied, 156 Wn.2d 1030 2006......
-
Chapter §33.6 Analysis
...subsequent to the date of injury in the subject litigation); Bushman v. New Holland Div. of Sperry Rand Corp., 83Wn.2d429,433-35,518 P.2d 1078 (1974) (concluding that plaintiff's interrogatories were proper subjects of discovery because they were related directly to the subject upon which t......
-
Chapter §33.7 Significant Authorities
...sought may reasonably be expected to lead to the discovery of admissible evidence. Bushman v. New HollandDiv. of Sperry Rand Corp., 83 Wn.2d 429, 433-34, 518 P.2d 1078 (1974). Under CR 26(b)(1), all information reasonably calculated to lead to the discovery of admissible evidence is discove......