Carabba v. Anacortes School Dist. No. 103

• Decision Date: 28 December 1967
• Docket Number: S,No. 201,No. 38188
• Citation: Carabba v. Anacortes School Dist. No. 103, 435 P.2d 936, 72 Wn.2d 939 (Wash. 1967)
• Parties: Stephen CARABBA, a minor, by and through his Guardian ad Litem, S. A. John Carabba, Appellant, v. The ANACORTES SCHOOL DISTRICT NO. 103, State of Washington, a Municipal Corporation, and Oak Harbor School Districttate of Washington, a Municipal Corporation, Respondents.
• Court: Washington Supreme Court

Page 939

72 Wn.2d 939

435 P.2d 936

Stephen CARABBA, a minor, by and through his Guardian ad Litem, S. A. John Carabba, Appellant, v. The ANACORTES SCHOOL DISTRICT NO. 103, State of Washington a Municipal Corporation, and Oak Harbor School District No. 201, State of Washington, a Municipal Corporation, Respondents.

No. 38188.

Supreme Court of Washington, En Banc.

Dec. 28, 1967.

Rehearing Denied Feb. 14, 1968.

Miracle & Pruzan, Seattle, for appellant.

Welts & Welts, Harry A. Follman, Mount Vernon, Elliott, Lee, Carney, Thomas & Smart, Robert E. Corning, Seattle, Richard Pitt, Pros. Atty., Coupeville, for respondents.

Lycette, Diamond & Sylvester, Earle W. Zinn, Seattle, Charles O. Carroll, Pros. Atty., James F. Kennedy, Richard M. Ishikawa, Deputy Attys. Gen., Seattle, amici curiae.

DONWORTH, Judge.

This action was brought on behalf of Stephen Carabba, a minor, by his guardian ad litem to recover $500,000 for injuries sustained by Carabba while he was a participant in a high school wrestling match.

The amended complaint alleged that respondent school districts, acting through their agent, the referee, were negligent in the following particulars:

1. Failing to adequately supervise the contestants;

2. Allowing his (the referee's) attention to be diverted from the actions of the contestants;

3. Allowing an illegal and dangerous hold to be applied;

4. Failing to immediately cause the said hold to be broken;

5. Allowing the said hold to be prolonged for a substantial period of time;

6. Violating the provisions of the 1963 official Wrestling Guide of the National Collegiate Athletic Association.

Respondents denied that the referee was acting as their agent, denied the allegations of negligence, and affirmatively urged the bar of RCW 28.58.030, relating to athletic appliances, urged the affirmative defenses of volenti non fit injuria, assumption of risk, and failure to join an indispensable party to the action. The trial court ruled out the affirmative defenses, and instructed the jury that the referee was the agent of respondents as a matter of law.

Thirty-eight witnesses testified during the 20 days of trial, and the record before this court is voluminous, the statement of facts alone consisting of over 2,300 pages.

The case was submitted to the jury solely on the issues of the referee's negligence and damages.

During the course of their deliberations, the jury requested an additional instruction regarding the standard of care applicable to the referee, i.e. the standard of the reasonably prudent man or that of an ordinarily prudent referee. This requested instruction was given by the court, pursuant to a stipulation of the parties, which told the jury that the standard to be applied was that of the ordinarily prudent referee.

The jury thereafter returned a verdict for respondents. Appellant moved for judgment n.o.v. or for new trial based primarily upon four specific instances of claimed misconduct on the part of counsel for respondents and denial of substantial justice. The trial court denied the motions, and this appeal followed.

Although the factual background of this case is not material to a determination of the issues which we reach on this appeal, and the evidence regarding the material factual issues relating to liability is in substantial dispute, a brief statement of that factual background will assist in understanding the case.

The jury could have found, from the evidence presented, that on January 31, 1963, a wrestling meet was held at Anacortes High School between the wrestling teams of Anacortes High School and Oak Harbor High School. The meet was sponsored jointly by the student body associations of those two schools.

The referee for this meet was Mr. Robert L. Erhart, a state trooper, and a member of the Northwest Wrestling Officials Association. ¹

In one of the matches held during that wrestling meet, Stephen Carabba, a senior at Anacortes High School and a member of that school's varsity wrestling squad, was opposed by Roger Anderson, a senior at Oak Harbor High School. Both boys wrestled in the 145-pound-weight division.

Near the end of the third round ² of the match between these two boys, Anderson, who was well ahead on points, was attempting to pin Stephen Carabba's shoulders to the mat and thus score additional points for his team. In the course of this attempt, he was alternating half nelsons, ³ first to one side and then to the other, trying to roll Carabba into a pin position. This process had taken the boys to the northwest corner of the main mat ⁴ near where small side mats were placed against the main mat. The referee, Mr Erhart, noticed a separation between the main mat and the side mat, and moved to close the gap to protect the contestants should they roll in that direction and off the main mat onto the bare floor. In so doing, his attention was diverted from the boys momentarily.

While the referee's attention was so diverted, Anderson applied what appeared to many of the eyewitnesses to be a full nelson. ⁵ The estimates made by the witnesses of the length of time during which the full nelson was applied varied from 1 to 10 or more seconds.

Almost simultaneously the buzzer sounded the end of the round, the referee blew his whistle, and Anderson broke the hold on Carabba after a final lunge. Carabba slumped to the mat, unable to move due to the severance of a major portion of his spinal cord resulting in permanent paralysis of all voluntary functions below the level of his neck.

Appellant assigns as error, the trial court's denial of his motion for new trial based upon four specific acts of alleged misconduct by counsel for respondents, and upon the total effect and interacting nature of that misconduct resulting in the denial of a fair trial to appellant. Each of the acts of alleged misconduct will be discussed separately.

The first occurrence of alleged misconduct was on the sixth day of the trial when Dr. Donald Ray Silverman, called as a witness on behalf of appellant, was on the stand. Dr. Silverman had testified on direct examination as to the nature and extent of injuries suffered by Stephen Carraba, and the nature and cost of the care that had been and would be required in view of those injuries. He was then asked the total of the charges made by University Hospital for the previous care of Stephen Carraba. The following then occurred:

Mr. Lee: May I have a question on voir dire? The Court: You may. Mr. Lee: Doctor, during the recess you have allowed me to look at the records from which you have been testifying, the hospital bills indicated here, and let me ask you this, there has been a substantial amount of benefit, as I understand, paid by various eleemosynary institutions, like the Crippled Children, is that right? Mr. Miracle: Your Honor, please, this is immaterial. Mr. Lee: Your Honor, I think it is. Mr. Miracle: Your Honor, direct gifts--The Court: Have you made an inquiry of the fair amount of charge for the services rendered? Mr. Lee: May I ask this question, is there a different charge made by the University Hospital, or has there been in this case, dependent upon whether there has been assistance from some other source? Mr. Miracle: Your Honor, please, this is improper. Immaterial. The Court: Objection sustained. Mr. Lee: Has there been any other charge or price than that which you have indicated? The Court: Objection sustained. Proper inquiry is whether or not that is a reasonable charge for the services rendered, Mr. Lee. Mr. Lee: Very well, your Honor.

This occurrence took place in the presence of the jury.

Appellant contends that his case was unfairly prejudiced by this occurrence in two respects. First, the jury could have concluded from the remark of counsel that, if it returned a defense verdict, appellant would still have other sources of financial help upon which he could rely. This prejudice is magnified, appellant argues, by the circumstances of this case in which the jurors could have felt that their financial interests were adverse to those of appellant, a matter that will be discussed later in this opinion.

The second argument made by appellant in this regard is that the statement tended to make more credible testimony by the referee, Robert Erhart, to the effect that the day following the injury he had given a written statement conceding that he had been at fault in taking his eyes off the wrestlers momentarily, only because he was led to believe that such a statement was needed in order to qualify Stephen Carabba for assistance from some crippled children's fund.

Respondents, on the other hand, argue that, first, the question was never answered. Secondly, in the absence of the jury following this incident, counsel for appellant stated to the court:

Mr. Miracle: * * * The only cure, is a curative instruction or a mistrial. Naturally, I don't want a mistrial.

I think we are entitled to have a cautionary or curative instruction given the jury in connection to the hospital bills covering the subject brought into the case by that voir dire question by Mr. Lee at that time, and I am asking the Court at this time to either make a note of it so that we can have an appropriate instruction when the time comes, or to have such action as the Court seems appropriate. The Court: What I have done so far is to state in the presence of the jury that the only proper question is the reasonableness of the bill. You feel some other or further instruction may be needed? Mr. Miracle: That's the way I felt, because as I say, No. 1: I believe this is misconduct, and I believe it was intentional--

The court noted Mr. Miracle's request, but no curative instruction was given by the court. No exception was taken to the trial court's failure to so instruct, nor was any request for such an instruction made later in the trial.

This matter was again before the trial court on appellant's motion for a new trial after the adverse jury verdict....