Dorian v. Benj. E. Boone, Inc.

• Decision Date: 03 July 1929
• Docket Number: 21498.
• Citation: 152 Wash. 681,279 P. 107
• Parties: DORIAN et ux. v. BENJ. E. BOONE, Inc., et al.
• Court: Washington Supreme Court

279 P. 107

152 Wash. 681

DORIAN et ux. v. BENJ. E. BOONE, Inc., et al.

No. 21498.

Supreme Court of Washington

July 3, 1929

Department 2.

Appeal from Superior Court, Snohomish County; Ralph C. Bell, Judge.

Action by Edward T. Dorian and wife against Benj. E. Boone, Inc. and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

Stephen V. Carey and R. E. Bigham, both of Seattle, for appellants.

Stanley J. Padden and George F. Ward, both of Seattle, for respondents.

FULLERTON J.

The respondents Dorian recovered in this action against the appellants for personal injuries suffered by the respondent Emma Dorian.

The accident giving rise to the injury occurred on one of the public streets of the city of Everett. The appellants are dealers in automobiles. At the time of the accident an employee of the appellants was servicing a new automobile. The employee had taken the automobile onto the street for the purpose of testing the efficiency of its brakes. The method of operation was to speed up the automobile, throw out the clutch, and then apply the brakes. In one of these operations, the automobile struck the respondent Emma Dorian, who was crossing the street, and caused the injuries for which the recovery was had.

The appellants denied the facts alleged in the complaint necessary to be shown in order to charge them with liability and pleaded affirmatively matters tending to show negligence causing or contributing to the injury on the part of the injured respondent, which the respondents put in issue by a reply. On the issues thus framed the action was brought on for trial. At the conclusion of the evidence, the court following the statutory practice, instructed the jury as to the law of the case. Counsel for the respondents then made his opening argument to the jury, and was followed by the appellants' counsel who concluded his argument. The court thereupon took a short recess. On the convening of the court after the recess, the appellants' counsel asked the court to reopen the case and allow him to introduce the testimony of a witness whom he had discovered during the recess, and whom he had not theretofore been able to discover; stating in a general way the nature of the testimony the witness would give. The court denied the request, whereupon counsel for the respondents made his concluding argument and the cause was submitted to the jury. The jury returned a verdict in favor of the respondents in the sum of $2,708.50, for which sum a judgment was subsequently entered in their favor.

The errors assigned are two, namely, that the court erred in refusing to reopen the case and permit the newly discovered witness to testify; and, second, that the court erred in refusing to grant a new trial because of the excessiveness of the verdict.

Noticing the first of the assigned errors, it must be remembered that there is no general rule of law or practice which required the court to reopen the case for the admission of further testimony at the stage the trial had reached at the time the application was made, or which prohibited it from so doing. In other words, the application but presented a matter on which the court must exercise its sound discretion, and this being the duty the confronted it it follows, of course, that the manner in which it did exercise it is to be reviewed in this court only for manifest abuse. The situation that then confronted the court was this: The trial, in so far as it was required to take place in open court, had been all but concluded. To permit the appellants to introduce further evidence would have required a like...