Doss v. Schuller

• Decision Date: 06 October 1955
• Docket Number: No. 33302,33302
• Citation: 47 Wn.2d 520,288 P.2d 475
• Court: Washington Supreme Court
• Parties: Leonard L. DOSS and Jeraldine A. Doss, his wife, Respondents, v. H. J. SCHULLER, doing business as Harris & Schuller, and George L. Northup, Appellants.

Page 520

47 Wn.2d 520

288 P.2d 475

Leonard L. DOSS and Jeraldine A. Doss, his wife, Respondents, v. H. J. SCHULLER, doing business as Harris & Schuller, and George L. Northup, Appellants.

No. 33302.

Supreme Court of Washington, Department 2.

Oct. 6, 1955.

Conniff & Taylor, Port Angeles, John E. Belcher, Seattle, for appellants.

Joseph H. Johnston, Port Angeles, Ferguson & Burdell, Wm. Wesselhoeft, Seattle, for respondents.

HILL, Justice.

This is an action for damages caused by fire which destroyed the residence of the plaintiffs, Leonard L. Doss and Jeraldine A. Doss, his wife, and the contents thereof. From a judgment for the plaintiffs, the defendants, H. J. Schuller and his employee, George L. Northup, appeal.

It seems to us that the decisive issues on this appeal are purely factual. We have heretofore indicated that in such a situation, when there is evidence to sustain the findings of fact made by the trial court and those findings sustain the judgment, we will ordinarily affirm by a short per curiam opinion. Amick v. Flash, 1952, 41 Wash.2d 666, 251 P.2d 172; see Dailey v. Albeck, 1952, 41 Wash.2d 945, 249 P.2d 234. That would be done here were it not that the appellants have asked leave of this court to file a motion for the vacation of the judgment heretofore entered by the superior court in this cause. Coincident with the vacation of the judgment, appellants desire to have the superior court enter an order granting a new trial. They would proceed under subdivisions (1) and (4) of RCW 4.72.010 et seq. [cf. Rem.Rev.Stat. §§ 464, 466 et seq.], supplemented by RCW 4.76.080 [cf. Rem.Rev.Stat. § 465].

The statute first cited provides that the superior court in which a judgment has been rendered may vacate such judgment:

'(1) By granting a new trial, within the time and in the manner, and for any of the causes prescribed by the sections relating to new trials; * * *

'(4) For fraud practiced by the successful party in obtaining the judgment or order. * * *'

The supplementary statute relates to new trials when, as here, the discovery of the grounds for a new trial is delayed beyond the period within which a motion for a new trial would ordinarily have to be made. It begins: 'When the grounds for a new trial could not with reasonable diligence have been discovered before. * * *'

We have recognized that, not only while a cause is pending in this court, Jorgensen v. Oregon-Washington R. & Nav. Co., 1934, 176 Wash. 399, 29 P.2d 744, 33 P.2d 898; Morrow v. Morrow, 1934, 179 Wash. 329, 37 P.2d 692; Quackenbush v. Slate, 1942, 12 Wash.2d 201, 121 P.2d 331; Donaldson v. Greenwood, 1952, 40 Wash.2d 238, 242 P.2d 1038, but after we have affirmed a judgment, Post v. Spokane, 1902, 28 Wash. 701, 69 P. 371, 1104; Godfrey v. Camp, 1917, 95 Wash. 674, 164 P. 210, 168 P. 519; Haaga v. Saginaw Logging Co., 1932, 170 Wash. 93, 15 P.2d 655; State v. Stratton, 1933, 172 Wash. 378, 20 P.2d 596, or reversed it, Gudmundson v. Commercial Bank & Trust Co., 1926, 141 Wash. 11, 250 P. 348; White v. Donini, 1933, 173 Wash. 34, 21 P.2d 265; Chadwick v. Ek, 1940, 5 Wash.2d 554, 106 P.2d 104, the proper practice is to ask leave of this court before proceeding in the superior court to move for vacation of the judgment and a new trial.

We have said that, upon such an application for leave to move in the superior court for the vacation of a judgment and for a new trial, we are concerned only with whether a prima facie case is made to justify our authorizing the superior court to exercise its own judicial discretion on the question of whether the judgment should be vacated and a new trial granted. The following statement from Gudmundson v. Commercial Bank & Trust Co., supra, 141 Wash. at page 13, 250 P. at page 349, was quoted in Haaga v. Saginaw Logging Co., supra, 170 Wash. at page 99, 15 P.2d at page 657:

"It must not be understood, however, that we have predetermined the matter. No opinion is here expressed as to whether the application, when made to the superior court, should be granted or denied. We say only that a sufficient showing has been here made to justify us authorizing the trial court to exercise its own judicial discretion."

We have insisted, however, that the showing made in this court on such an application be such a prima facie showing as would warrant the superior court to enter an order vacating the judgment and granting a new trial. Chadwick v. Ek, supra. Stating our position as it is phrased in some of the later cases, we will not grant an application to proceed in the superior court unless we could, no the showing made here, uphold an order of the superior court vacating the judgment and granting a new trial. Jorgensen v. Oregon-Washington R. & Nav. Co., supra; Quackenbush v. Slate, supra; Donaldson v. Greenwood, supra.

The application to permit the appellants to move this superior court to vacate the judgment appealed from herein and to grant a new trial on the grounds of (a) newly discovered evidence and (b) fraud rests primarily upon the affidavits of Sarah Keith and Betty Keith that respondent Leonard L. Doss, a few days after his home was destroyed, told Sarah Keith he had lighted the oil heating stove in the dining room that evening. (We disregard the affidavit of a member of the fire department showing the number of fires caused by oil heaters, oil ranges, and oil furnaces in Port Angeles, as that statistical information must have been available at all times and has no applicability to the question of fraud.)

We will consider first the claim of newly discovered evidence.

To justify the granting of such an application as we now have before us on the ground of newly discovered evidence, RCW 4.76.080 provides that the evidence must be such that it '* * * could not with reasonable diligence have been discovered before * * *.' This court, in passing upon such an application in Morrow v. Morrow, supra, said, 179 Wash. at page 332, 37 P.2d at page 693:

'To justify the granting of such a motion, it must appear: (1) That the evidence is such as will probably change the result if a new trial is granted; (2) that it has been discovered since the trial; (3) that it could not have been discovered before the trial by the exercise of due diligence; (4) that it is material to the issue; (5) that it is not merely cumulative or impeaching.'

These are the standards which govern the superior court in the granting of new trials on the ground of newly discovered evidence. Nelson v. Placanica, 1949, 33 Wash.2d 523, 526, 206 P.2d 296, and cases there cited.

At the trial it was one of the theories of the appellants that the house had caught fire in consequence of Mr. Doss's having started a fire in the oil heating stove. Both appellant Northup and the Port Angeles fire chief testified that Mr. Doss had told them that, before going upstairs to bed, he had 'turned on the oil and flipped * * * a match' into the oil heating stove. As a witness, Doss stoutly denied having made such statements or having started a fire in the oil heater. The trial court believed Doss.

On the first day of the trial Mr. Doss testified that, after telephoning the fire alarm in to the operator, he went across the road to the Keiths' home and told them that his house was on fire and asked them to report it to the fire department. There is no explanation by the appellants of their failure to produce Sarah and Betty Keith or any other member of that family as witnesses at the trial, other than a statement by Northup in an affidavit supporting the application now before us that '* * * although affiant with due diligence tried to obtain the evidence set forth in the above described affidavits [of Sarah and Betty Keith] prior to the time of the trial and prior to the entry of the judgment in this case he was unable to do so.'

That statement is merely a conclusion. There is absolutely no showing of any effort, diligent or otherwise, to ascertain what any of the members of the Keith family knew about the fire until after the judgment had been entered. Having made no showing of reasonable diligence, the appellants have failed to make a prima facie showing that would justify the superior court in vacating the judgment on the ground of newly discovered evidence warranting a new trial under the provisions of RCW 4.72.010(1) supplemented by RCW 4.76.080.

For a judgment to be vacated for fraud practiced by the successful party in obtaining the judgment, RCW 4.72.010(4), it is necessary that the fraud be extrinsic or collateral, and when, as here, it is based on claimed perjury, the party seeking the vacation must be free from all implication of want of diligence. As stated in McDougall v. Walling, 1899, 21 Wash. 478, 486, 58 P. 669, 671, 75 Am.St.Rep. 849:

'Perjury is not specified in our statute as a distinctive ground for vacating a judgment. There must, at any rate, be connected with it such circumstances as will relieve the opposite party from all implication of want of diligence, and deceive him completely in the nature of the testimony.'

We repeated this quotation with approval in Friedman v. Manley, 1899, 21 Wash. 675, 676, 59 P. 490; Meeker v. Waddle, 1915, 83 Wash. 628, 636, 145 P. 967; Robertson v. Freebury, 1915, 87 Wash. 558, 564, 152 P. 5, L.R.A.1916B, 883; Burke v. Bladine, 1918, 99 Wash. 383, 393, 169 P. 811; and approved the holding in Eckert v. Schmitt, 1910, 60 Wash. 23, 110 P. 635; E. R. Thomas & Co. v. Penland, 1928, 148 Wash. 279, 268 P. 867; Huseby v. Kilgore, 1948, 32 Wash.2d 179, 201 P.2d 148.

Passing the question of whether the fraud complained of was extrinsic or collateral, we find that there is here not only no showing of reasonable diligence but, for the reason indicated there is a very definite implication of want of diligence in securing the testimony of Sarah and Betty Keith.

While disposing of the question of fraud on the basis of the lack of reasonable diligence, we do not wish to infer that perjured...