Makoviney v. Svinth

• Court: Washington Court of Appeals
• Writing for the Court: SOULE; PEARSON, C. J., and RINGOLD
• Citation: Makoviney v. Svinth, 584 P.2d 948, 21 Wn.App. 16 (Wash. App. 1978)
• Decision Date: 07 August 1978
• Docket Number: No. 2877-II
• Parties: John Joseph MAKOVINEY and Teresa Jean Makoviney, husband and wife, Appellants, v. Floyd SVINTH and "Jane Doe" Svinth, husband and wife, and Montesano Equipment Company, Respondents.

Page 16

21 Wn.App. 16

584 P.2d 948

John Joseph MAKOVINEY and Teresa Jean Makoviney, husband and wife, Appellants, v. Floyd SVINTH and "Jane Doe" Svinth, husband and wife, and Montesano Equipment Company, Respondents.

No. 2877-II.

Court of Appeals of Washington, Division 2.

Aug. 7, 1978.

Samuel J. Allotta, Tacoma, for appellants.

M. Margaret McKeown and William A. Gould, Perkins, Coie, Stone, Olsen & Williams, Seattle, and James M. Stewart of Stewart & Thomas, Montesano, for respondents.

SOULE, Judge.

The plaintiffs brought an action against defendants for personal injuries sustained by the plaintiff, John Makoviney, while on the premises of the Montesano Equipment Company, which is owned by the defendants Svinth. The case was tried to the court without a jury. By agreement of counsel, the liability portion of the case was separated from that relating to damages. At the end of all the evidence pertaining to liability, judgment was rendered for the defendants. ¹ We affirm the judgment.

For ease of reference, the injured plaintiff, John Makoviney, will hereafter be referred to as if he were the only plaintiff. Several assignments of error relate to the refusal of the court to admit certain evidence. Error is also assigned to the refusal of the court to grant a continuance and to the court's failure to find for the plaintiff on the issue of negligence. No exceptions were taken to the findings of fact.

The plaintiff lived near Dayton in Mason County. ² On January 28, 1972 he drove to the defendant's place of business to keep an appointment with Bill Trenckmann, one of defendant's salesmen. His purpose was to purchase a crawler tractor. It is stipulated that he was a business invitee.

After the negotiations and paperwork were completed, Trenckmann invited plaintiff to inspect the machine more closely. To do so, it was necessary to leave the building and go into the outside yard. The route traversed was through the shop and through a large equipment door on the west side of the shop near the south corner of the building. The west wall is a gable end. The roof is rather sharply pitched from north to south and has an overhang of about 3 feet. The building is of uninsulated wood frame construction covered with sheet metal.

It is conceded that there was snow on the ground and on the roof. How much, how long it had been there and under what conditions, is a matter of dispute. The roof was covered with frozen snow or ice but there is no contention that visible ice in icicle form was hanging from the eaves.

As plaintiff and Trenckmann left the shop and closed the large door behind them, some of the frozen snow or ice slipped. A substantial amount of it came over the edge of the eave, rather than sliding straight down the slope. It dropped upon them both. Plaintiff received the major blow, but Trenckmann was also struck.

After recovering from the blow, both men went on to inspect the equipment. In a short time, perhaps 5 to 10 minutes, they reentered the shop building and went to the lunchroom area, where one of the incidents occurred which forms a basis of this appeal.

Error is assigned to the refusal of the trial court to permit the plaintiff to testify to the following Okay. We went into the coffee shop and the guys all come in and sat down and had their coffee. And Bill and I walked in and said that I just got hit by a large piece of ice outside. And my head was bleeding so the secretary, I don't know her name, went and got a bandage or washcloth or something to wipe my head off, because like any head wound or scratch it will bleed pretty good, and they asked me how I felt and I said: "I feel like, you know, I got a headache." So they went and got me some aspirin. And while they was doing all this they were all kind of laughing and joking. They weren't laughing because I got hurt. They were laughing at the coincidence. They said they should have had that ice knocked off that roof that morning before they opened the place of business.

Plaintiff asserts that the testimony was properly admissible under the res gestae exception to the rule against hearsay to prove that the material on the roof constituted a known dangerous condition.

The basis for this exception to the rule against hearsay is found in the fact that under certain external circumstances of physical shock, a stress of nervous excitement may be produced which stills the reflective faculties and removes their control so that the utterance which then occurs, is a spontaneous and sincere response to the actual sensations and perceptions already produced by the external shock. 6 J. Wigmore, Evidence, § 1747, (rev. ed. J. Chadbourn 1976). It is for this reason that the exception is sometimes called the "excited utterance" exception.

   POINT TO POINT     APPROXIMATE DISTANCE        DIRECTION
                --------------------  --------------------  ----------------------
                Montesano to Hoquiam        15 miles        West of Montesano
                Montesano to Shelton        27 miles        Northeast of Montesano
                Montesano to Dayton         25 miles        Northeast of Montesano
                Shelton to Dayton            5 miles        West of Shelton
                Shelton to Matlock          15 miles        West of Shelton and
                                                               slightly north
                Dayton to Matlock            9 miles        West of Dayton
                Montesano to Matlock        20 miles        North and slightly
                                                               east of Montesano
                

The authoritative decision in our jurisdiction on this subject is Beck v. Dye, 200 Wash. 1, 92 P.2d 1113 (1939). The criteria for admission of evidence under this exception were set forth therein on page 9, 92 P.2d on page 1117:

A careful examination of those cases, read chronologically and as a whole, will reveal that the rule as adopted, declared and followed by this court requires that the statement or declaration concerning which testimony is offered must, in order to make such evidence admissible, possess at least the following essential elements: (1) The statement or declaration made must relate to the main event and must explain, elucidate, or in some way characterize that event; (2) it must be a natural declaration or statement growing out of the event, and not a mere narrative of a past, completed affair; (3) it must be a statement of fact, and not the mere expression of an opinion; (4) it must be a spontaneous or instinctive utterance of thought, dominated or evoked by the transaction or occurrence itself, and not the product of premeditation, reflection, or design; (5) while the declaration or statement need not be coincident or contemporaneous with the occurrence of the event, it must be made at such time and under such circumstances as will exclude the presumption that it is the result of deliberation, and (6) it must appear that the declaration or statement was made by one who either participated in the transaction or witnessed the act or fact concerning which the declaration or statement was made.

Measured against these standards, at least three problems are apparent.

1. Are the words, "they said they should have had that ice knocked off that roof that morning before they opened the place of business," a statement of fact or merely of opinion? Clearly, the words do not pertain to an act that was done. Rather, they express the thought of the unidentified declarant that something should have been done. As such, they are a statement of opinion given in the light of hindsight.

2. Did the declarant participate in or witness the main transaction or fact concerning which the declaration was made? There is no suggestion that the declarant saw the accident. Plaintiff, however, argues that the pertinent transaction or "main event" is the dangerous condition of the roof because of the snow and ice upon it and therefore is admissible to prove declarant's preexisting knowledge of that condition.

Appellant does not suggest that Trenckmann was the declarant. There is no evidence that the unknown declarant made the statement based on his prior personal observations of conditions on the south sloping roof. Admittedly, plaintiff's problem is complicated by the fact that the declarant was unidentified, but the party offering the evidence has the burden of showing that the declarant has the requisite personal knowledge. Absent that showing, the declaration suffers the same infirmity as that offered by the plaintiff through the policeman in Beck v. Dye, Supra.

3. Was the statement a spontaneous or instinctive utterance of thought dominated or evoked by the transaction or occurrence itself and not the product of premeditation, reflection or design? It is difficult to answer this question categorically. Under the circumstances where the plaintiff was receiving minor first aid, some stress of the excitement of the original incident may well have persisted, but the declarant had not been subject to the acute excitement of the occasion. Moreover, the situation was an appropriate one for expressions of sympathy and regret, and these considerations could easily have motivated the remarks.

Plaintiff's situation is not even as strong as that of the plaintiff in Zukowsky v. Brown, 1 Wash.App. 94, 459 P.2d 964 (1969), Affirmed 79 Wash.2d 586, 488 P.2d 269 (1971). There, plaintiff brought an action for injury suffered when the seat of a boat collapsed. The plaintiff offered to prove through another witness that the son of the defendant-boat owner, who was in the nearby area when the accident occurred and within five minutes of the event and after learning of what had happened, said, "Well, that doesn't surprise me. That happened twice before." This was plainly a statement of fact. In upholding exclusion of that evidence, the appellate court said on page 103, 459 P.2d at page 970:

In no sense of the word can it be said that the defendant's teen-age son was "under the influence of the event". He was neither a witness nor a non-witness...