Gianini v. Cerini

• Decision Date: 03 April 1918
• Docket Number: 14419.
• Citation: 100 Wash. 687,171 P. 1007
• Parties: GIANINI v. CERINI et al.
• Court: Washington Supreme Court

171 P. 1007

100 Wash. 687

GIANINI v. CERINI et al.

No. 14419.

Supreme Court of Washington

April 3, 1918

Department 1. Appeal from Superior Court, King County; Ralph Bell Judge.

Action by Carlo Gianini against Peter V. Cerini and another. Judgment for plaintiff, and defendants appeal. Affirmed.

James B. Murphy and Robert C. Saunders, both of Seattle, for appellants.

Vince H. Faben, of Seattle, for respondent.

WEBSTER J.

In an action to recover damages for personal injuries, the plaintiff obtained a verdict and judgment, from which defendants appeal, assigning as error the insufficiency of the evidence to sustain the verdict, the refusal of the court to give certain requested instructions, and misconduct of the plaintiff in injecting into the case the fact that the defendant was protected by liability insurance. We shall discuss these assignments in the order stated.

On August 8, 1916, the plaintiff, an employé of the defendant while backing an automobile truck in an effort to turn it around, was precipitated over a steep bluff, resulting in the injuries complained of. The defective condition of the brakes on the truck was the only ground of negligence submitted to the jury. The plaintiff's version of the accident in his own language is:

'I went to back up the truck, the front around, and when I see I am far enough I take my foot off from the gas and put it on the brake, and the brake don't hold and the truck went overboard. Q. Why? A. Why? Because the brake don't hold me; even when I put in the emergency brake, down he went.'

He further testified that the defendant Peter V. Cerini visited him at the hospital a day or two after the accident and said that he was sorry he had never said anything about the brakes; that the brake was loose from the drum and had been 'all along.' This evidence was sufficient to warrant the jury in finding that the plaintiff reasonably used all the appliances provided for stopping the truck without effect; that the brakes were in a defective condition; that the defendant had knowledge of this fact; and that he failed to inform the plaintiff thereof. Furthermore it appears that the plaintiff had never driven the truck before the day on which the accident occurred, and only for a short time prior to the accident. The evidence, therefore, if believed by the jury, was sufficient to entitle the plaintiff to a verdict in his favor, and we are not prepared to say that the court abused its discretion in refusing to set it aside.

The instructions requested and refused upon which the second class of assignments of error is based, all relate to the testimony of the plaintiff concerning admissions made by the defendant on the occasion of his visit to the hospital. The court was asked to charge in varying forms of words that casual statements, made in random conversations and testified to by bystanders or listeners, should be scrutinized with great caution, and are the weakest character of evidence. In view of the constitutional inhibition against comment on the facts by trial judges in their charge to juries, it has not been the policy of this court to encourage the giving of cautionary instructions. There are very few classes of evidence of any kind in which inherent weakness may not be found in the light of the facts of a particular case, and it would open the door to serious abuses to permit nisi prius judges, under the guise of cautioning the jury, to express their views concerning the weight and probative force of testimony. Such practice, if much indulged in, would seriously trench upon the constitutional right of trial by jury, and make easy the accomplishment of the very evil sought to be guarded against. Moreover, the conversation in question was not a casual or random one, and the testimony concerning the statements made was not given by a chance or uninterested bystander. Here, if the evidence is to be believed, the defendant made a deliberate statement to the plaintiff relative to the very ground of negligence upon which the action is based. If it be assumed that this important admission against interest was in fact made, it cannot be said to be weak or dangerous evidence. The weakness, if any, lies in the question of whether it was made, depending in this case upon the weight of credit to be given the testimony of the plaintiff in the light of his interest, prejudice, and bias; upon which subject the jury was properly charged by an appropriate instruction. There was no reversible error in refusing to give the requested instructions.

Lastly it is contended that the court should have granted the defendants' request to discharge the jury and discontinue the trial of the case for the reason that the plaintiff, while testifying as a witness in his own behalf, disclosed the fact that defendant carried liability insurance covering the accident in question. On cross-examination the plaintiff was interrogated at length concerning a typewritten statement signed by him which had been procured by Mr. Murphy, one of the attorneys for defendants, during a visit made by the plaintiff to Mr. Murphy's office. On redirect examination, in an effort to show that the plaintiff had been imposed upon and not treated fairly when the statement referred to had been given, the several visits and conversations leading to the procurement of the statement were gone into by plaintiff's counsel, during which the record shows the following transpired:

'Q. How did you come to go in there that day? A. Well, I went in there to get some money, because a fellow come up to my house and say he represent Cerini's lawyer. Q. He said he was from Mr. Murphy's office? A. He said he was represent Cerini's lawyer, and he says he wants to know what I am going to do, and the lawyer wants to see me; and I says, 'All right;' and I says, 'Where is the office of Cerini's lawyer?' and he said, 'He is down in the Central Building.' So after 15 days I come down and tell Mr. Murphy I need some money for an operation. I had my baby with me, and so Mr. Murphy he take my baby on his lap, and he says, 'How much do you want?' and I say, 'I want $500;' and he say, 'If you give me the baby, I will give you more than $500;' and I says, 'Is that Cerini talking now,' and he says, 'Yes.' He say, 'I will go up and see him this afternoon; and you come back about 3 o'clock;' and then the time he say that, he push a button and a lady come out, and what I said she put down; and so I says, 'You don't have to write that down; there was a man there who took the statement all at my house;' and he said he lost that. Q. That is the yellow slips? A. Yes; the yellow slips; and the next day I went back, and I said to Mr. Murphy, 'I am here again;' and he said. 'Did you sign that paper yesterday?' And I said, 'Yes;' and he say, 'Now, if you want any money you sue Cerini for it; I am not his lawyer; I am the insurance

...