Livermore v. Northwest Airlines, Inc.

• Citation: 6 Wn.2d 1,106 P.2d 578
• Decision Date: 23 October 1940
• Docket Number: 28072.,27752
• Parties: LIVERMORE v. NORTHWEST AIRLINES, Inc. STATE ex rel. NORTHWEST AIRLINES, Inc., v. GREENOUGH, Judge.
• Court: United States State Supreme Court of Washington

106 P.2d 578

6 Wn.2d 1

LIVERMORE v. NORTHWEST AIRLINES, Inc.

STATE ex rel. NORTHWEST AIRLINES, Inc., v. GREENOUGH, Judge.

Nos. 27752, 28072.

Supreme Court of Washington

October 23, 1940

Department 1.

Action by Lorna Livermore, in her own behalf and as administratrix of the estate of Joseph P. Livermore, deceased, and as guardian of Jacquelin Monahan, a minor, against the Northwest Airlines, Inc., to recover for the death of plaintiff's husband. From a judgment for plaintiff, defendant appeals and plaintiff moves to strike the statement of facts. Proceeding by the State of Washington, on the relation of Northwest Airlines, Inc., for writ of mandate to compel the Honorable Charles W. Greenough, Judge of the Superior Court of the state of Washington, for Spokane county, to correct and supplement the statement of facts and then to certify it as complete.

Writ issued with instructions, and motion to strike statement of facts denied.

Where appellant filed incomplete and inaccurate statement of facts respondent did not file proposed amendments, but indicated objections by motions to strike and quash, court reporter was unable to recall incidents which occurred at trial, and trial court did not attempt to ascertain in what way record was incorrect, mandamus was issued requiring trial court to order included in the record matters necessary so that statement should speak the truth, and to continue to do so, until court could properly make its certificate. Rem.Rev.St. §§ 388-396; § 389; Rules of the Supreme Court, rule 9, § 1.

Edge & Keith and Clare Turner, all of Spokane, Karr & Gregory, of Seattle, Pierce Butler, Jr., of St. Paul Minn., and William A. Huneke, of Spokane, for appellant and relator in both matters.

Graves, Kizer & Graves, of Spokane, for respondent in both matters.

SIMPSON Justice.

This cause involves two proceedings. The first is a motion presented by plaintiff to strike the statement of facts; the second is defendant's application for a writ of mandate to compel the trial court to correct and supplement the statement, and then to certify it as complete. Basically, the same issue is presented in each proceeding, and for that reason we will decide the question relative to the petition for a writ of mandate. Our decision relative to that petition will be decisive of the motion to strike the statement of facts.

The motion and petition arise out of the case of Lorna Livermore v. Northwest Airlines, Inc., a corporation, which is on appeal to this court. The action, begun October 1, 1937, was brought by plaintiff, on her own behalf, as administratrix of the estate of Joseph P. Livermore, deceased, and as guardian of a minor, against defendant, to recover damages alleged to have resulted from the death of Joseph P. Livermore, plaintiff's husband, December 18, 1936, when a Northwest Airlines plane, operated by him, crashed in the mountains south of Kellogg, Idaho.

The trial commenced November 21, 1938, and continued until January 11, 1939, upon which date the jury returned a verdict for plaintiff in the sum of $37,500. A large number of witnesses were examined, and many exhibits were admitted in evidence. After a denial of the defendant's motion for a new trial or for judgment n.o.v., judgment on the verdict was entered March 2, 1939. Defendant, which is relator in the mandamus proceedings, gave notice of appeal and filed its appeal bond. Relator was represented by several attorneys, among whom were Edge & Keith, of Spokane. April 6, 1939, Mr. Edge wrote the following letter:

'Mr. J. R. McElroy

'c/o Judge Greenough's Court

'Court House

'Spokane, Washington.

Re: Lorna Livermore vs. Northwest Airlines

'Dear Mr. McElroy:

'In accordance with our recent conversation, you are instructed to omit from the Statement of Facts the opening statements of counsel, the argument of attorneys on objections and conclusions of law, and the arguments to the jury.

'Of course, we wish the objections made in connection with testimony included, and it may be that sometimes these objections might be scattered along a little in the argument, but we do not think so. At different times, matters were stated into the record which of course should be included.

'Payne Karr has advised us that he is mailing you direct a copy of the Department of Commerce testimony.

'Yours very truly,'

The proposed statement of facts, consisting of 1,442 pages, was filed in the clerk's office May 27, 1939. Counsel for plaintiff did not propose any amendment to the proposed statement, but did file a motion to strike the statement of facts and a motion to quash its service and filing. The motions were based upon the allegations that the purported statement did not include the complete record and all the proceedings and evidence in the case; that it was an improper, inadequate, insufficient, and untrue statement of facts; that it was not prepared in a bona fide effort to comply with the statutes and rules of court; that it was prepared at the express direction of defendant, in bad faith, in a grossly and materially inadequate, deficient, and misleading manner; and that it omitted substantial and material portions of the record, proceedings, and evidence, for the purpose of casting upon plaintiff the burden of placing in the statement the extensive, substantial, and material portions of the record. Relator proposed various minor changes in the statement as prepared by the court reporter.

The hearing was had upon the issues thus presented June 5, 1939. Upon that date, the trial court entered an order commanding the relator to get out 'a complete record and all the proceedings and evidence in the cause.' August 1, 1939, relator served and filed what is termed a 'Supplemental Statement', which contained 361 pages and included the voir dire examination of the jury, the opening and closing statements and argument to the jury, and a few amendments to the evidence as contained in the original statement. August 25th, defendant noted the statement for certification. An additional 'amended' statement of fourteen pages was filed August 30, 1939. An extensive hearing was had, the statement of which is contained in 1,767 pages of testimony and argument. At the conclusion of the hearing, the court denied the motions to strike and to quash, but certified that the proposed statement, together with its amendments, did not contain all the material matters, facts, and proceedings occurring in the trial of the case. Thereafter, this proceeding for a writ of mandate was instituted in this court.

The hearing relative to the certification of the statement of facts took a wide range, but was, for the most part, an interrogation of the court reporter, and related to the interpretation of his shorthand notes made at the time of the trial and a comparison thereof with the matters he included in the statement of facts. The return of the trial judge, respondent herein, to the order to show cause states that the statements, as filed and amended, contained many inaccuracies and omitted much of the evidence and many of the objections urged by counsel, together with the rulings of the court, and that the deficiencies contained in the record were occasioned by the instructions given the court reporter by Mr. Edge, attorney for relator.

It is impossible, without incorporating extensive portions of the proposed statement of facts and all the record of the hearing relative to the motion to strike, to give an exact picture of the many questions raised, discussed, and commented upon in this last hearing. It is sufficient to say that we have carefully read the evidence which has to do with the charge of bad faith made against the reporter and the attorney for relator, and, while it is true that the reporter talked with Mr. Edge at times during which the statement was being prepared, we must conclude that there was no improper effort on the part of the attorney to direct the reporter in what he should include in the statement of facts.

We do not feel that relator's attorney was guilty of bad faith in instructing the court reporter as he did, nor do we feel that there was such gross negligence as will amount to bad faith constructively. It is true that the statement of facts was submitted to the court in a garbled and inaccurate form, but the evidence at the hearing convinces us that the attorney relied upon the ability of the official court reporter to get out an accurate record, and the failure to detect the many defects was largely attributable to the extreme length and complicated nature of the statement, combined with the fact that much of the record was delivered a very short time Before the filing date.

In his return, respondent states, relative to the court reporter:

'* * * My only references to incompetency were during the February hearings.

'I then stated that his troubles in getting out his work were very recent and began after the end of the Livermore trial. As the situation to which I shall presently advert developed the reporter obviously labored under a constantly increasing nervous tension. This strain developed to such a degree during the last hearing that counsel for both parties expressed serious concern, in which I joined them, as to his ability to stand up under it; all of us noted and commented on the fact that much of his conduct was hardly rational. In one or more conversations touching on this general situation, I stated that recently he had not been able to perform his duties. At no time did I state or imply that he was in any degree incapable of performing his duties prior to his difficulty with this statement. On the contrary, in each discussion I made it as clear as I could that he had served satisfactorily for nearly 13 years but that...