Hansen v. Wightman, 2450--I

CourtCourt of Appeals of Washington
Citation538 P.2d 1238,14 Wn.App. 78
Docket NumberNo. 2450--I,2450--I
PartiesTheodore HANSEN et al., Appellants, v. Roland C. WIGHTMAN et al., Respondents.
Decision Date04 August 1975

Jennings P. Felix, Inc., P.S., Jennings P. Felix, Nicholas F. Corning, Seattle, for appellants.

McMullen, Brooke, Knapp & Grenier, E. H. Knapp, Jr., Seattle, for respondents.

CALLOW, Judge.

The plaintiffs Theodore and Margaret Hansen, parents of Joyce Hansen, brought this action claiming legal malpractice against the members of the Spokane law firm of Cullen, Campbell and Wightman. The plaintiffs appeal a jury verdict in favor of the defendants.

Joyce Hansen, a young amateur swimmer, was participating in a swimming meet in Spokane, Washington, on May 13, 1967. While preparing for an upcoming race, she was knocked down by other child competitors. Her head struck a metal bar embedded in concrete and she was injured.

The plaintiffs contacted a Seattle lawyer who filed a claim against the City of Spokane on June 12, 1967. The plaintiffs later were referred by a friend to Roland C. Wightman, a partner in the Spokane law firm. A retainer agreement signed by the plaintiff father was entered into with the defendants in September 1967, and $50 was paid to cover filing and service fees at the request of Mr. Wightman. The agreement retained Mr. Wightman to represent the daughter in connection with the injuries she had sustained. The defendants did not file a complaint on behalf of the injured child and did not file a separate claim on behalf of the parents against the City of Spokane.

The plaintiffs claim that the child suffered severe injuries. They testified that they repeatedly requested information as to the progress and status of the litigation and that the law firm failed to reply until it was contacted by another Seattle lawyer on or about September 23, 1970. The defendants' position is that they investigated the accident and concluded that the liability of the city for the child's injury was doubtful and the child's injuries were minor. The defendants testified that the plaintiffs did not respond to their inquiries regarding the child's medical condition, and that there was no claim that the injury to the child caused epilepsy until after the file had been returned to the plaintiffs. The lawyers decided that a lawsuit was not justified. It is further their claim that they were retained to represent the child only, and that the period for filing a claim on behalf of the parents for any cause of action they might have against the city had expired when the defendant lawyers were contacted.

The 17 assignments of error involve primarily the admission or rejection of evidence during the course of the trial and the instructions given or refused which dealt mainly with the attorney-client relationship. Discussion of the issues follows.

1. Was testimony that the retainer agreement created on attorney-client relationship between the attorney and the parents, in addition to a relationship regarding the child's claims, improperly excluded on the basis of the parol evidence rule?

The plaintiff-clients claim that the trial court excluded parol evidence which would have shown that the defendant-lawyers had been contacted by the parents to represent themselves, as well as their child. The retainer agreement entered into between the parties was prepared by the Seattle lawyer as an accommodation to the plaintiffs. It was in the form of a letter dated September 13, 1967, signed by the plaintiff father and mailed to the defendant Wightman, who signed it on September 20, 1967. The document is plain on its face, and is clear and unambiguous. Parol evidence could not have been admitted to vary its terms, Washington Fish & Oyster Co. v. G. P. Halferty & Co., 44 Wash.2d 646, 269 P.2d 806 (1954); Schinnell v. Doyle, 6 Wash.App. 830, 496 P.2d 566 (1972).

The retainer agreement which was offered by the plaintiffs and accepted by the defendants clearly pertains only to representation of the father in his capacity as guardian for the child. The agreement itself does not indicate that there was any additional arrangement entered into between the parties, and the plaintiffs did not present evidence of any additional items that were not incorporated into the writing. Absent such proof or an offer thereof, the doctrine of partial integration cannot be asserted as a basis for error. University Properties, Inc., v. Moss, 63 Wash.2d 619, 388 P.2d 543 (1964); Barber v. Rochester, 52 Wash.2d 691, 328 P.2d 711 (1958).

The defendants further state that the testimony actually presented at the trial did, in fact, cover this aspect of the relationship between the plaintiffs and the defendants. The record discloses that the contention of the defendants is correct. Defendant Wightman was questioned fully on direct and cross-examination as to whether the defendants were to have any responsibility for any direct claims the parents might have against the city. Our review of the record reveals that the plaintiffs did not attempt to explore this area through other witnesses. We have not found outstanding offers of proof on the subject which were excluded wrongfully by the trial court. Evidence is in the record on the subject, however, and the plaintiffs have not be prejudiced. See Garratt v. Dailey, 46 Wash.2d 197, 279 P.2d 1091 (1955); Akers v. Sinclair, 37 Wash.2d 693, 226 P.2d 225 (1950).

The agreement is clear on its face, there was no showing or offer of proof of any agreement regarding a direct claim of the parents, and testimony covering the subject was presented in any event. We find no error.

2. Should certain photographs have been admitted?

The plaintiffs assert that the exclusion of certain photographs of the scene of the accident taken at a subsequent swim meet was improper. We cannot say that similar circumstances existed at the time the photographs were taken. The admission or rejection of photographs lies in the sound discretion of the trial court. Rikstad v. Holmberg, 76 Wash.2d 265, 270, 456 P.2d 355 (1969); Toftoy v. Ocean Shores Properties, Inc., 71 Wash.2d 833, 431 P.2d 212 (1967). Here the trial court ruled that the probable misleading or prejudicial effect of the photographs would outweigh their probative value. This was not an abuse of his discretion.

3. Did the trial court prejudicially comment on the evidence?

The Seattle attorney who drew the claim against the city and the retainer letter for the plaintiffs was testifying on cross-examination that there was no co-counsel relationship between himself and the defendant. He answered:

A. . . . But it would seem to me that, unless the individual is performing services and doing something productive with respect to the particular case, it would be unethical and in violations (Sic) of the canons to accept, that is, a 'kick-back,' if you will.

Q. My question--

THE COURT: There was no kickback, Mr. Jones.

THE WITNESS: Well, I mean, if I perform services.

THE COURT: I know. Usual practice is, if I'm over in Yakima, there's a practicing attorney in Yakima, and you know me, and your client lives in Yakima, and they contact you initially, you refer a case to me, the usual standard is that, what we call a referral fee, is that I receive two-thirds and you receive one-third. Isn't that your practice over a number of years?

THE WITNESS: I've never done that.

At the first opportunity the plaintiffs moved for a mistrial in the absence of the jury and challenged the statement made by the court.

The court denied the motion for mistrial, returned the jury to the jury box, and stated:

Before you call your witness, I want to talk to the jury. While Mr. Jones was on the witness stand I made a remark about referral fees; forwarding attorney gets a certain percentage, and the person who receives the case gets a certain percentage.

I want you not to take that as a comment on the evidence on my part. It's just what my practice, thirty-four years as a practicing attorney, and practices of thousands of attorneys that I know; has nothing to do with this case whatsoever.

Hope you understand that. It was not a comment; was not an intentional comment by me. I was explaining my experience; my background.

Do you all understand that?


THE COURT: Thank you.

The comments of the trial judge, while unfortunate and incorrect as a matter of law, were not upon matters relevant to the action. The prohibition of article 4, section 16 of the Washington State Constitution forbids comment by judges upon matters of fact. However, the comments on dividing fees were comments upon a fact which was not in issue and not in dispute. The constitutional prohibition does not apply to such comments. James v. Ellis, 44 Wash.2d 599, 269 P.2d 573 (1954). As stated in State v. Louie, 68 Wash.2d 304, 314, 413 P.2d 7, 13 (1966), Cert. denied, 386 U.S. 1042, 87 S.Ct. 1501, 18 L.Ed.2d 610 (1967), 'adverting to or assumption of an admitted or undisputed peripheral fact does not constitute constitutionally inhibited comment.' In addition, the comments did not imply to the jury an expression of the judge's opinion concerning disputed evidence, or express the court's attitude towards the merits of the cause. State v. Carothers, 84 Wash.2d 256, 525 P.2d 731 (1974); State v. Jacobsen, 78 Wash.2d 491, 477 P.2d 1 (1970); Risley v. Moberg, 69 Wash.2d 560, 419 P.2d 151 (1966).

Further, inadvertent remarks of a trial judge which might otherwise be a constitutional violation may be corrected by appropriate instructions. When the trial court explained his prior remarks to the jury and stated that they were not to be taken as comments on the evidence, no objection was made to this explanation and the court in the written instructions instructed the jury to disregard comments made by him during the trial.

In view of their incidental nature and because of the explanation and corrective instructions given, the court's comments were not...

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