Jones v. Hogan, 35058

• Decision Date: 14 April 1960
• Docket Number: No. 35058,35058
• Citation: 56 Wn.2d 23,351 P.2d 153
• Parties: Oliver JONES and Bonnie Jean Jones, his wife, Respondents, v. Chester HOGAN and Jane Doe Hogan, his wife, doing business as Hogan's Supermarket, Appellants.
• Court: Washington Supreme Court

Page 23

56 Wn.2d 23

351 P.2d 153

Oliver JONES and Bonnie Jean Jones, his wife, Respondents, v. Chester HOGAN and Jane Doe Hogan, his wife, doing business

as Hogan's Supermarket, Appellants.

No. 35058.

Supreme Court of Washington, Department 2.

April 14, 1960.

Elvidge, Watt, Veblen & Tewell, Seattle, for appellants.

Rohrs & Knecht, Tacoma, for respondents.

Leon L. Wolfstone (of Wolfstone & Piehler), William M. Robinson, W. J. Sinsheimer, Sam L. Levinson, McCutcheon, Soderland & Wells, Seattle, R. Max Etter, Spokane, John J. Kennett, Seattle, Paul R. Roesch, Walla Walla, Theodore D. Peterson, Pasco, amici curiae.

FOSTER, Judge.

Appellants, defendants below, appeal from a judgment on a verdict for the respondent, plaintiff below, in a personal injury action. ¹ While marketing in the appellants' store, respondent slipped on the contents of a broken bottle of spot remover.

No error is claimed respecting any instruction nor in the admission or exclusion of evidence. A motion for new trial, or, in the alternative, for judgment notwithstanding the verdict were both argued and denied.

While the appellants' brief contains six separately numbered assignments of error, they are essentially (1) that the verdict on the issue of liability was the result of passion and prejudice, and (2) that the verdict is excessive and is the result of passion and prejudice.

There is no dispute that the respondent slipped on the contents of a broken bottle of spot remover, and that she was not present when it was broken. There was evidence that a clerk had warned her to avoid the slippery spot, but such was denied by respondent.

There was substantial evidence for and against appellants' liability. Consequently, this issue was for the jury's determination. Upon appeal, respondent is entitled to the most favorable view of the evidence with all favorable inferences. We cannot say that the jury's determination of liability was unjustified; the motion for judgment notwithstanding the verdict was, therefore, properly denied.

The testimony of physicians upon the extent of respondent's injuries sharply conflicted. There was testimony that, as a result of the fall, respondent sustained a severe lumbosacral sprain from which she would suffer pain and disability for a period of two years, although physicians called by the appellants testified that the injury was minimal. It is undisputed, however, that respondent was hospitalized and in traction for a period of five days.

This conflict was for the jury to resolve. We cannot say that the award of $10,000, plus the medical expenses, was unsupported by evidence, nor so large as to indicate passion and prejudice, either on liability or damages.

While the verdict might have been less, or for the defendants altogether, nevertheless, there is substantial evidence to support it. To reverse the judgment, appellants must show independent facts which may singly prejudice the jury consideration or from which an over-all situation of unfairness may result.

Appellants rely upon two such occurrences.

The first occurrence is that respondent's counsel twice referred to her poverty in the presence of the jury. The facts are:

During cross-examination, respondent was asked whether she recalled the taking of her deposition. Respondent's counsel, not having a copy of the deposition, asked that it be published for his convenience in comparison, and said in the jury's presence:

'If the Court please, we haven't had the deposition transcribed, we couldn't afford it. May I have the Court's published so that I may check the questions?' (Italics ours.)

Upon objection, the remark was stricken, but no further request or motion was made until after verdict.

The second reference to proverty occurred during her counsel's final argument. The arguments are not preserved, but appear only from post-trial affidavits. There was evidence that respondent had rarely seen her doctor. As a result, appellants' counsel argued that her injury could not have been very severe. In answer, respondent's counsel suggested a number of possible reasons, one of which was, in substance, that perhaps 'plaintiff could not afford to go running to the doctor frequently.'

No objection was taken at the time by appellants' counsel, the explanation being that to object then would simply have emphasized the suggestion of respondent's poverty.

We agree that such comment before the jury was improper.

But, provocation aside, appellants cannot now complain. Upon the first reference to poverty, appellants' counsel objected, whereupon the court struck the remark. No more was asked. Upon the second reference, no action at all was asked of the trial court.

Appellants' brief states:

'* * * plaintiff's counsel's double reference to plaintiff's unproved poverty unmistakably inflamed the passion and prejudice of the jury and denied defendant the right to a fair and impartial trial.'

Appellants' reply brief states:

'Appellant submits that no instruction to the jury, in the nature of things under these particular circumstances, could remove the irreparable damage done by this second unwarranted reference to poverty.'

Accepting appellants' contentions at face value, we must, none the less, conclude that appellants' failure to request appropriate relief by the trial court waived any error as to either or both references.

This court, in Sun Life Assurance Co. of Canada v. Cushman, 22 Wash.2d 930, 158 P.2d 101, 108, held:

'It may be admitted that, in a case such as now before us, no admonition that could be given by the trial court could correct the situation, if actual misconduct had occurred, but respondents had a remedy, and it was their duty, if they expected to claim error based upon the alleged misconduct of appellant and the jury, not only to call the matter to the attention of the trial court, but, also, to claim a mistrial and ask that the jury be discharged and, upon the refusal of the trial court so to do, to take exception to such ruling, and not to wait, as did respondents in this case, until an adverse verdict had been rendered, and then, for the first time, claim error based upon such alleged misconduct.

'It seems to us that the procedure we have outlined is the orderly way to proceed, and a procedure that should be followed in fairness to the trial court, and is one which, we think, is clearly sustained by our decisions and the authorities generally.

'We are of the opinion, therefore, that, in this case, respondents waived their right to claim error based upon the alleged misconduct of appellant and of the jury by failing to take the additional steps hereinbefore mentioned at the time such alleged misconduct was called to the attention of the court.'

If misconduct occurs, the trial court must be promptly asked to correct it. Counsel may not remain silent, speculating upon a favorable verdict, and then, when it is adverse, use the claimed misconduct as a life preserver on a motion for new trial or on appeal. Agranoff v. Morton, Wash., 340 P.2d 811.

In State v. Smails, 63 Wash. 172, 115 P. 82, 88, this court stated:

'* * * The remedy for misconduct on the part of any one during the progress of a trial is to call the attention of the presiding judge to the alleged misconduct and move by some proper procedure to have the matter corrected. It is not timely to await the result of the trial and then complain only in the case of an adverse verdict.'

The error, if any, was waived.

The second circumstance complained of and the principal issue presented is the claimed error in permitting the respondent's counsel, in his argument to the jury, to use a blackboard on which was displayed a mathematical formula for the determination of the item of damage for pain and suffering. What actually transpired is not precisely shown by the record because it was not reported and is presented by post-trial affidavits alone. It does appear, however, that the appellants' attorney objected and that the objection was overruled. In that ruling, the trial court said:

'Counsel is entitled to argument. I don't know that it goes beyond any legitimate argument. It has nothing to do with any testimony as to what happened in the case. It is purely argument. I believe he is entitled to that. * * *

'The Court is merely saying that he is arguing that that is what it is worth. There is no evidence, that is true, in the case, but that I don't think precludes him from making such estimates as he cares to in his argument.'

It is certain, therefore, that the appellants went to father than to object to the blackboard demonstration of a formula suggested by the respondent's counsel. Certain it is that counsel did not ask for a specific instruction directing the jury to disregard the argument, nor was a mistrial requested. The court did cover the matter in the instructions, as follows:

'You will also disregard any statement made by counsel on either side which is not sustained by the evidence, and any evidence which may have been...