Honan v. Moss, 2945

• Decision Date: 27 February 1961
• Docket Number: No. 2945,2945
• Citation: 359 P.2d 1002
• Parties: John J. HONAN, Appellant (Plaintiff below), v. H. S. MOSS, d/b/a Moss Car Sales, Appellee (Defendant below).
• Court: Wyoming Supreme Court

Page 1002

359 P.2d 1002

John J. HONAN, Appellant (Plaintiff below), v. H. S. MOSS, d/b/a Moss Car Sales, Appellee (Defendant below).

No. 2945.

Supreme Court of Wyoming.

Feb. 27, 1961.

Jones & Jones, William R. Jones, Wheatland, for appellant.

Milton R. Foe, Wheatland, and Yegge, Hall & Shulenburg, Raymond J. Connell, Denver, Colo., for appellee.

Before BLUME, C. J., and PARKER, HARNSBERGER, and McINTYRE, JJ.

Mr. Justice PARKER delivered the opinion of the court.

John J. Honan, while looking for a restroom when the car in which he was a passenger was stopped for service at the filling station of H. S. Moss, fell into an open grease pit and was injured. He brought suit for some $54,000, alleging that Moss had negligently left the pit uncovered and unguarded, causing plaintiff to fall into it and severely injure himself. Defendant denied generally, and in additional defenses pleaded substantially that the filling station was lighted; that the properly designated toilet room adjacent thereto was also lighted and had the door ajar; that the portion of the station containing the grease pit was not in use and was darkened; that plaintiff was not invited into that portion; and that any injury sustained by him was caused by his own negligence.

The court sitting without a jury found generally for the defendant and entered judgment accordingly. Plaintiff has appealed, complaining that the court erroneously admitted Exhibit 8, a statement, handwritten by the insurance company investigator and purportedly signed by plaintiff while he was in the hospital two days after the accident, and urging that the judgment is contrary to the law and the evidence.

According to plaintiff's testimony, he was a retired machinist, residing at Calgary, Canada, and on October 17, 1957, was traveling in Wyoming with his daughter Eva and Miss Charmian Johnson. That afternoon, they stopped in Cheyenne to eat and while there bought and consumed three 'one shot' bottles of vodka, and plaintiff bought a half pint of Old Crow whiskey which he took along. They arrived in Wheatland about six o'clock in the evening and stopped at defendant's Standard Service Station. Defendant opened the restroom for Miss Johnson and upon returning to the car responded to plaintiff's request for the location of the men's room with, 'through the office door.' Plaintiff entered the office, going to the side of the room immediately opposite. He went along the wall for some little distance toward the rear, ran into rubbish and grease cans so that he could go no further, turned back along the wall, saw a closed door, pulled it open, saw that it was pitch black, and said to himself, 'This must be the restroom.' According to his own words:

'* * * I put my hand on the door sill and going to reach around for the light switch on the inside of the door and I pulled this foot up and as soon as I hit the curb this foot went underneath me. I made a quick step to try to regain my balance and found myself in the bottom of the grease pit.'

Plaintiff explained at some length about the nature of his treatment and injuries, none of which is of interest under the present status of the case.

Defendant testified that on the evening in question he unlocked the restroom for the ladies and on his return to the car, while he was in front of the outside door of the office, was asked by the plaintiff, 'Where is the little boy's room?' He replied, 'Just inside,' and went on to service the car. It was dark enough that the lights were on at the pumps, in the office (two fluorescent), and in the men's restroom (a 75-watt incandescent). The service area containing the grease pit was closed and darkened with the outside doors bolted. The door leading to the office was closed but unlocked. Defendant also testified as to various dimensions of the premises with the location of objects therein, but such testimony is not particularly significant in view of a scale drawing and photographs of both the office and service area which were admitted in evidence by stipulation.

The court, over the objection of plaintiff, admitted Exhibit 8, plaintiff's statement, which in part reads:

'* * * I went back to the door to the garage area. The door was shut but it was not locked and I turned the knob and pulled the door back opening it wide. I was in need of a rest room bad at the time. I noticed when I opened the door, not paying any particular attention to the kind of door I was opening, and I saw that the garage area was black dark with no lights on.

'Because I have been in a number of stations where the rest rooms was at the end of the garage I thought that the room would be at the end of the garage along the wall. I thought there would be a light there but I took one step forward and one step down toward where I thought the room would be and that's when I fell and landed in the grease pit. * * *'

Plaintiff denied signing the statement but later conceded the correctness of certain answers purportedly given by him during the taking of an earlier deposition, which answers admitted his signing of one (undesignated) page thereof. Ruggles, the investigator, testified that he had visited Honan in the hospital two days after the accident, had identified himself as an investigator, had said he would need to get the facts in written form, and when Honan agreed had written the statement which Honan then voluntarily read and signed on each of the three pages.

There was little conflict in the evidence, plaintiff having presented an unchallenged recital of the occurrences before he reached Wheatland and the parties having stipulated for the admission of the scale drawing and photographs of the station. The only real disagreement concerning the facts arises from the variance between plaintiff's testimony concerning his activities immediately prior to the accident and the account which he is alleged to have given to the investigator, Ruggles. There is also a minor discrepancy in the testimony of Honan as it related to the half pint of Old Crow whiskey which he had purchased in Cheyenne. At the trial he said that the seal was not broken when they reached Wheatland but that he took a couple of swallows from the bottle while he was in the doctor's car after the accident. On cross-examination, however, he admitted having said in a previous deposition that the bottle probably had one-half or three-fourths of an inch out of it when they reached Wheatland.

The exhibits admitted by stipulation showed that the outside door of the office is in the truncated northeast corner of the building, the wooden door of the men's restroom some ten feet south of this, and a fifteen-pane glass door to the service area about the same distance west, both being visible from the office door but neither being directly in front of it. Above the restroom door is the word 'men' in two and a quarter inch black lettering on white. At the threshold of the door between the office and the service area is a two and three-eighths inch step-down which is worn and uneven. On the office side of this door is a paper three and one-fourth inches by one-half inch containing the printed word 'warning.' The grease pit, three and one-half feet wide, sixteen feet long, and five feet deep, is parallel to and three and one-third feet west of the wall containing the glass door. The northernmost portion of the pit, which is in front of the door, is covered for a space of two and five-sixths feet by planks and the remaining part is open.

Plaintiff's daughter testified that following the accident defendant said, 'this had worried him for eight or nine years, the fact that the grease pit could have caused an accident but nothing had ever happened.'

According to the deposition of Charmian Johnson, defendant said, 'he had been afraid of this happening for nine years, and he explained about he ordinarily kept his own car on that grease pit, but had moved it off shortly, I believe, before we got there because a friend of his wanted to use the grease pit for his own car that night.'

Defendant on being examined regarding such statements said, 'I don't recall that.'

Plaintiff argues that the court erred in admitting Exhibit 8, his purported statement. The record shows an objection to the introduction of the statement, but no reasons for the objection were given as is requisite. State ex rel. Benham v. Cheever, 71 Wyo. 303, 257 P.2d 337. There is no question here raised as to the propriety of cross-examining a witness regarding relevant portions of a former statement apparently inconsistent with his testimony at the trial. There is nothing in the record to show whether the court received the exhibit for its substantive and independent testimonial value ¹ or merely for the purpose of impeachment, but as will be noted hereafter, plaintiff's version of the occurrences which led up to the accident is not greatly at variance with the testimony which he gave at the trial, and it is unlikely that the acceptance of one version over the other would have altered the result. Plaintiff's arguments on this phase of the appeal seem to deal with the principle that it is prejudicial for an attorney to continue in a case after he has testified and its corollary, that a lawyer should not be permitted to testify for the side represented by his law firm. We are at a loss to understand this aspect of the argument since Ruggles is not shown to be an attorney. Plaintiff also insists that he was in agony at the time of the investigator's visit to the hospital and argues that the investigator's failure to reveal that the statement would later be used in an attempt to defeat plaintiff's claim constituted deceitfulness which robbed the statement of its probative force. No cases are cited which bear out this point, and it would seem to be without merit. Plaintiff's actual giving of the statement, his condition at that time, the disclosures made by the investigator prior to the time the statement...