Hawley v. Mellem

• Decision Date: 02 September 1965
• Docket Number: No. 37062,37062
• Citation: 66 Wn.2d 765,405 P.2d 243
• Court: Washington Supreme Court
• Parties: Marjorie L. HAWLEY, Administratrix of the Estate of Lyle Hawley, deceased, Appellant, v. Chester Leroy MELLEM and Mrs. Chester Leroy Mellem, husband and wife, doing business as Mellem Automotive, Respondents.

Page 765

66 Wn.2d 765

405 P.2d 243

Marjorie L. HAWLEY, Administratrix of the Estate of Lyle

Hawley, deceased, Appellant, v. Chester Leroy MELLEM and Mrs. Chester Leroy Mellem, husband and wife, doing business as Mellem Automotive, Respondents.

No. 37062.

Supreme Court of Washington, En Banc.

Sept. 2, 1965.

Rehearing Denied Oct. 15, 1965.

Quackenbush, Dean & Beschel, Robert P. Beschel, Spokane, for appellant.

Paine, Lowe, Coffin, Herman & O'Kelly, Edwin R. Roberts, Spokane, for respondents.

OTT, Judge.

The vehicular collision out of which this action arose occurred in the intersection of Second Avenue and Maple Street in Spokane on December 30, 1961, at approximately 9 o'clock in the morning. Both Second Avenue and Maple Street were three-lane, one-way arterials, with a speed limit of 30 miles an hour. The day was bright and clear; however, visibility at the intersection was limited by an overpass abutment.

The intersection was regulated by standard, automatically controlled signal lights, the component colors of which were green, amber, and red. These lights operated on a preset time cycle, and were synchronized with similar signal lights at the various north-south streets intersecting Second Avenue, so that vehicles traveling at a speed of from 24 to 25 miles an hour could move along Second Avenue without stopping.

The drivers of the two vehicles involved in the accident were Russell L. Hawley, who was proceeding westerly on Second Avenue, and Chester L. Mellem, who was traveling south on Maple Street. Lyle Hawley, a brother of Russell Hawley, was riding as a guest passenger in the Hawley vehicle. Both vehicles entered the intersection without stopping, and collided.

Lyle Hawley died as a result of injuries received in the collision, and his widow, Marjorie L. Hawley, as administratrix of his estate, initiated this action for wrongful death, asserting negligence on the part of Chester Mellem.

Following commencement of the wrongful death action, Chester Mellem instituted a separate action against Russell L. Hawley and his wife, alleging that the accident was occasioned by the negligence of Russell Hawley. The Russell Hawleys denied that they were negligent, and sought to recover for damage to their vehicle, alleging negligence on the part of Chester Mellem. Chester L. Mellem, Russell L. Hawley, and Marjorie L. Hawley will hereinafter be referred to as though they were the sole parties involved.

Chester Mellem moved that the court consolidate the two actions for trial. The motion was granted over Marjorie L. Hawley's objection.

In the action instituted by Chester Mellem against Russell Hawley, the jury denied recovery to both parties, and neither party has appealed from that judgment.

In the wrongful death action, the jury returned a verdict for defendant Mellem, and, from a judgment based upon the verdict, Marjorie L. Hawley appeals.

Appellant first assigns error to the court's consolidation of the two causes of action for trial.

In State ex rel. Sperry v. Superior Court for Walla Walla County, 41 Wash.2d 670, 251 P.2d 164 (1952), relied upon by appellant, the trial court refused to consolidate 3 actions arising from 3 collisions and involving a total of 14 different defendants, 13 causes of action, 2 cross-complaints, and 26 affirmative defenses. The actions were so numerous and complex that this court held it was not an abuse of discretion to refuse to consolidate the actions. There was no such complexity in the case at bar--only 2 claims and a cross-claim were involved. The jury was specifically instructed that, although the causes were consolidated for trial, the evidence in each case was to be considered separately.

Consolidation of claims for trial is within the sound discretion of the trial court. Sage v. Northern Pac. Ry. Co., 62 Wash.2d 6, 380 P.2d 856 (1963); State ex rel. Shaffer v. Superior Court for King County, 184 Wash. 316, 50 P.2d 917 (1935). In State ex rel. Sperry v. Superior Court, supra, we said, 41 Wash.2d p. 671, 251 P.2d p. 165:

Whether or not cases should be consolidated for trial is a matter within the discretion of the trial court. We do not feel inclined to interfere with the method in which a trial court handles its own affairs, unless there has been a clear abuse of discretion. It is the trial court's responsibility to arrange its trial calendar and to determine in what manner the cases can be most expeditiously and fairly tried in order that justice can be given to all of the parties.

In the case at bar, all of the claims arose out of the same accident. Had the claims been separately tried, it would have been necessary to call the same witnesses on the issue of liability in both trials. The instant case involved five trial days. Applying the test announced in the Sperry case, supra, appellant has not shown that the causes were not expeditiously and fairly tried, or that the court abused its discretion in consolidating the two actions for trial.

The second assignment of error relates to the giving of the last paragraph of instruction No. 16. This instruction was as follows:

As previously stated, 'proximate cause' means that cause which in a direct unbroken sequence produces the injury complained of and without which such injury would not have happened. In this connection you are instructed that there can be more than one proximate cause of an accident or injury. Thus, the acts and omissions of two, or more persons may occur concurrently as an efficient cause of an injury and in such a connection each of the participating acts or omissions is regarded in the law as a proximate cause. This is true, regardless of the relative degree of the contribution. It is no defense for one of such persons that some other person is joined as a defendant in the action and participated in causing the injuries, or in a separate action, even if it should appear to you that the negligence of the other person was greater in either its wrongful nature or its effect.

Therefore, in this case, if you find from the evidence that the defendant, Chester L. Mellem was negligent and that such negligence, if any, was a proximate cause of the injuries and damages sustained by the plaintiff, Majorie L. Hawley, as Administratrix, and if you find further that Russell Hawley was negligent and that the negligence of Russell Hawley was also a proximate cause combined with the negligence of the defendant, Chester L. Mellem, then and in that event your verdict should be for the plaintiff, Marjorie L. Hawley as Administratrix of the Estate of Lyle Hawley.

However, if you find that the accident causing Lyle B. Hawley's death was solely and proximately caused by the negligence of the driver of the car in which he was riding, namely Russell L Hawley, and that it was not proximately caused by any negligence on the part of Chester L. Mellem, then Marjorie L. Hawley is barred from recovery and your verdict on her complaint must be for Chester L. Mellem.

In support of her contention, appellant relies upon Knight v. Borgan, 52 Wash.2d 219, 324 P.2d 797 (1958). In the cited case, a guest brought an action against the driver of a vehicle which collided with that driven by her host. The defendant driver proposed the following instruction:

'In the event that you find that the sole proximate cause of the collision and resulting injuries and damages to the plaintiffs was some Negligent act of the driver of the car in which plaintiff Mildred A. Knight was riding As alleged in defendant's answer, then you shall return a verdict for the defendant.'

We there held that it was not error to refuse the instruction because the negligence of the host driver was not involved. In the instant case, the negligence of the host driver was material in the action commenced by Chester Mellem against the host, Russ- ell Hawley.

Instruction No. 15 expressly admonished the jury Not to consider any alleged acts of negligence on the part of Russell Hawley in Marjorie Hawley's action against Chester Mellem. Instruction No. 15 was as follows:

You are instructed that as a matter of law, the decedent Lyle Hawley, was a guest in the car being driven by his brother, Russell Hawley. Therefore, any act of Negligence, if any, in the operation of the 1950 Chevrolet Sedan By Russell L. Hawley, shall not be considered by you in your deliberations as to the right of the plaintiff, Marjorie Hawley to recover herein. The sole issue involved in determining whether Marjorie Hawley is entitled to a verdict against the defendants, Mr. and Mrs. Chester Mellem, is whether or not the collision herein was proximately caused as a result of an act or acts of negligence on the part of the defendant, Chester Mellem. (Italics ours.)

There is no ambiguity in this instruction. It clearly states the law applicable to appellant's claim. The instructions must be considered as a whole. Owens v. Anderson, 58 Wash.2d 448, 452, 364 P.2d 14 (1961); Myers v. West Coast Fast Freight, Inc., 42 Wash.2d 524, 529, 256 P.2d 840 (1953). Considering instruction No. 16 together with instruction No. 15 and the other applicable instructions given by the court, the jury was properly instructed as to the law. The court did not err in giving instruction No. 16 in its entirety.

Appellant next contends that the trial court erred in failing to clarify the instructions after being requested to do so by the foreman of the jury. The circumstances surrounding this request are set forth in the trial judge's memorandum opinion as follows:

As to the request of the jury for some clarification of the instructions, the facts are that after the jury had been deliberating for some time, the foreman knocked on the door of the deliberating room and asked the bailiff for permission to talk to the judge about a question which had arisen concerning some of the instructions. The bailiff informed the foreman that the jury could not talk to the judge nor the judge to the jury unless all counsel were...