Knutson v. Moe Bros., Inc.

• Decision Date: 26 February 1913
• Citation: 130 P. 347,72 Wash. 290
• Court: Washington Supreme Court
• Parties: KNUTSON v. MOE BROS., Inc.

130 P. 347

72 Wash. 290

KNUTSON v. MOE BROS., Inc.

Supreme Court of Washington

February 26, 1913

Department 1. Appeal from Superior Court, King County; Mitchell Gilliam Judge.

Action by Louis Knutson against Moe Bros. From a judgment for plaintiff, defendant appeals. Remanded, with directions to grant a new trial, unless plaintiff enters a remittitur.

Peterson & Macbride, of Seattle, for appellant.

Martin J. Lund, of Seattle, for respondent.

GOSE J.

The plaintiff in this action seeks to be recompensed for a personal injury sustained while employed by the defendant, in consequence of its alleged negligence. There was a verdict and judgment in his favor for $5,000, which the defendant seeks to reverse or modify by this appeal.

The errors suggested are: (1) That the respondent was guilty of contributory negligence; (2) that the testimony of Bert Nelson should not have been admitted; (3) that an objection interposed to a hypothetical question should have been sustained; and (4) that the verdict was excessive. These questions will be considered in the above order.

The first inquiry was settled adversely to the appellant's contention on a former appeal, upon substantially the same facts as are shown by the record on this appeal. Knudsen v. Moe Bros., Inc., 66 Wash. 118, 119 P. 27.

After showing that Bert Nelson, who had testified in the former trial, could not be found, and the exercise of due diligence in endeavoring to find him, the respondent, having given three days' notice to the opposite party, together with a copy of his testimony in the other trial, was permitted to read it in evidence. The statute (Rem. & Bal. Code, § 1247) provides: 'The testimony of any witness, deceased, or out of the state, or for any other sufficient cause unable to appear and testify, given in a former action or proceeding or in a former trial of the same cause or proceeding when reported by a stenographer or reduced to writing, and certified by the trial judge, upon three days' notice to the opposite party or parties, together with service of a copy of the testimony proposed to be used, may be given in evidence in the trial of any civil action or proceeding, where it is between the same parties and relates to the same matter.' The testimony at the former trial had been reducted to writing and certified by the trial judge, to be used on the first appeal. The appellant's contention is that it was incumbent upon the respondent to give it three days' notice of his intention to have the testimony recertified and that having failed to do so, and there having been no recertification, the testimony was inadmissible. The statute does not require so useless a formality.

The respondent propounded a hypothetical question to a physician, covering 1 1/2 pages of the printed brief. The objection was: 'Just a minute, now, before that is answered. We object to that question as, first, containing a mass of irrelevant matter, which might have effect upon the opinion of the physician, yet it is not properly considered in a case of this character; and, second, that the hypothesis stated is not supported by the evidence.' The argument is that the hypothetical question is not a fair statement of the material facts which the evidence tends to establish, and that it embraces facts not within the testimony. The respondent testified that, after he was injured, he succeeded in reaching the camp a half mile distant, unaided, by walking and crawling, with intervals of resting. The hypothetical question assumed that he was taken to the camp. The variance was immaterial. He further testified that he was taken to his home from the camp, and taken to Seattle the following day, where he was attended by a physician; but there is no testimony that he was taken home from Seattle, as the question assumed. This would seem too immaterial a circumstance to require a reversal. He also testified, and his wife corroborated his statement, that he 'was laid up' at home for about a month. The question assumes that he 'stayed at home in bed for about a month.' The variance was a material one, had it been properly called to the attention of the court. It is the duty of counsel to frame his hypothetical question so as to fairly come within the scope of the testimony. Stated in another form, there must be evidence tending to prove the material facts assumed in the hypothetical question.

The objection that the question contained 'a mass of irrelevant matter,' and that the 'hypothesis stated' is not supported by the evidence, was not sufficiently specific to direct the attention of either the court or counsel to the substance of the objection. To say that a question of such length embraces a mass of irrelevant matter was too general to rise to the dignity of an objection. The court, in the exercise of the discretion which the law gives it ( State v. Peacock, 58 Wash. 41, 107 P. 1022, 27 L. R. A. (N. S.) 702), would have been warranted in requiring the elimination of the immaterial matter embraced in the question; but the failure so to do neither benefited the respondent nor prejudiced the appellant. And the objection that the 'hypothesis stated' is not borne out by the evidence, when there were several hypotheses, is, equally unavailing. The appellant should have fairly pointed out wherein the hypothesis varied from the evidence. Had this been done, the court would have been afforded a basis for an intelligent ruling, and counsel could then have recast his question, or could have temporarily withdrawn it for the purpose of putting in evidence, if he had any, to meet the situation. This view has the support of the following authorities: 38 Cyc. 1388; In re Barber's Estate, 63 Conn. 393, 27 A. 973, 22 L. R. A. 90; Styles v. Village, etc., 131 Mich. 443, 91 N.W. 622; Missouri v. Hall, 66 F. 868, 14 C. C. A. 153; Burlington, etc., v. Miller, 60 F. 254, 8 C. C. A. 612.

The reason for the rule is thus succinctly stated in the case last cited: 'Appellate courts have on many occasions condemned the practice of stating objections to testimony in language that is so general or obscure that it may not have served to advise the trial court, or the opposite party, of the precise nature of the objection intended to be urged and to be relied upon. A specification of the particular reasons upon which a party asks the trial court to exclude or to admit certain testimony is essential for three reasons: First, to prevent a violation of the fundamental rule a litigant must abide in an appellate court upon the theory which he has advocated at nisi prius; second, to prevent an appellate tribunal from becoming something quite different from a court of review; and, lastly, that the opposing party and the trial court may be fairly advised of the force and nature of the objection intended to be urged, and have a fair opportunity to consider it, and, if need be, obviate it. Insurance Co. v. Frederick, 58 F. 144 ; Turner v. People, 33 Mich. 363, 382; Shafer v. Ferguson, 103 Ind. 90, 2 N.E. 302; State v. Hope, 100 Mo. 347, 13 S.W. 490 ; Lewis v. Railroad Co., 123 N.Y. 496, 501, 26 N.E. 357; Ward v. Wilms, 16 Colo. 86, 27 P. 247; People v. Nelson, 85 Cal. 421, 24 P. 1006; Elliott, App. Proc. §§ 770, 779. While an objection to testimony for the reason that it is 'incompetent and immaterial' may be adequate in some cases, where the testimony is obviously or clearly inadmissible, yet, as every practitioner knows, it frequently happens that an objection in that form is not sufficient to advise the court or the opposite party of the ground on which the objection is predicated.' While the objection that the 'hypothesis stated' is not supported by the evidence may be sufficiently specific in cases where the question embraces a single hypothesis, which is clearly without the legitimate meaning of the testimony, yet it frequently happens, as in this case, that an objection in that form is altogether too wanting in precision to direct the mind of either the court or counsel to the vice sought to be eradicated.

The appellant, in support of the sufficiency of his...