Montgomery v. Hyatt, 33144
| Decision Date | 14 April 1955 |
| Docket Number | No. 33144,33144 |
| Citation | 46 Wn.2d 468,282 P.2d 277 |
| Court | Washington Supreme Court |
| Parties | George H. MONTGOMERY and Rachel E. Crouch, Respondents and Cross-appellants, v. Richard HYATT, Appellant and Cross-respondent, and Helen Hyatt, Defendant and Cross-respondent. |
Bennett Hoffman, Stephen J. Morrissey Seattle, for appellants.
Lloyd Holtz, N. A. Pearson, Max R. Nicolai, Seattle, for respondent.
This action was brought to determine the legal liability for a collision between two automobiles which occurred on the evening of September 18, 1953, at the intersection of the Maple Valley road and Jones road, which is about three miles east of Renton.
The suit was commenced by Mr. Montgomery, the owner and driver of the Nash car involved in the accident, and by Mrs. Crouch, who was riding as a guest in the car, against Richard Hyatt, the driver of the Hudson car, and Helen Hyatt, his mother, who owned it, but was not present at the time of the collision. Both plaintiffs asked for damages for personal injuries sustained, and, in addition, the owner sought to recover for damages to his car.
Defendants denied the material allegations of the complaint regarding negligence and affirmatively set up the defense of contributory negligence on the part of the owner and operator of the Nash car. They also cross-complained against him for two purposes: (1) the driver of the Hudson car to recover for his personal injuries, and (2) the owner of the car (his mother) to recover for damages to it.
Plaintiff's reply and answer to the cross-complaint denied all of the defendants' allegations, except as alleged in the complaint.
The case came to trial before the court sitting with a jury. At the close of the trial (which lasted four days), the case was submitted to the jury on two special interrogatories and three forms of general verdict. After answering the former in favor of plaintiffs, the jury rendered its general verdict, awarding damages to Mr. Montgomery, the owner and driver of the Nash car, in the sum of $16,000, and to Mrs. Crouch, his guest, in the sum of $7,500.
Defendants moved for judgment n. o. v. or, in the alternative, for a new trial. After argument, the trial court denied the first motion but granted the second motion on the condition that Mr. Montgomery consent to a reduction in the amount of the recovery from $16,000 to $12,793. This reduction was accepted, and judgment was entered against the driver of the Hudson in this amount. Judgment was also entered in favor of Mrs. Crouch, the other plaintiff, for the full amount of the verdict ($7,500).
This judgment further dismissed the action as to Mrs. Hyatt, the owner of the Hudson, with prejudice, and she was thus exonerated from any liability to either plaintiff because of the acts of her son (the driver).
Richard Hyatt, the driver of the Hudson, has appealed from the judgment against him awarding damages to the two plaintiffs, as stated above, and the latter have cross-appealed from that part of the judgment which reduced the amount of Montgomery's recovery to $12,793, and from the part which dismissed the action as to Mrs. Hyatt, the owner of the Hudson car.
Before considering the assignments of error, certain undisputed facts concerning the collision may be stated.
At about 10:30 in the evening both cars were proceeding in an easterly direction on the Maple Valley road (herein referred to as the highway), the Nash being ahead of the Hudson as they approached the point where Jones road intersects the highway on the north side. (There is no road intersecting the highway on the south side).
For some considerable distance, both east and west of this 'T' intersection, the highway is straight and level. The night was clear and the pavement was dry. No other traffic was in sight at the time of the collision.
As the Nash arrived at the intersection, the driver made a left turn into Jones road. Shortly prior thereto, the Hudson had pulled over into the left-hand lane preparatory to passing the Nash. While the Nash was making the left turn, the right front portion of the Hudson came into violent collision with the middle of the left side of the Nash. This car came to rest in a ditch on the south side of the highway at a distance of 135 feet from the point of collision, and the Hudson jumped the ditch and embedded its nose in the bank on the north side of the highway at a point 227 feet east thereof. Serious personal injuries were sustained by the two drivers and their guests.
The testimony presented by the parties is in direct conflict as to exactly what each driver did immediately prior to the collision. It is not necessary to review here the different versions given by the several eyewitnesses. Unless we find reversible error in regard to the instructions or admission of evidence, we must accept the findings of the jury on the issues of negligence and contributory negligence. In response to two special interrogatories, the jury found that the driver of the Hudson did not sound his born when fifty feet or more from the Nash and that the driver of the Nash did give the rear light signal as required by law before making a left turn into Jones road.
Of appellant's twelve assignments of error, we find it necessary to consider only No. 3 and No. 4.
Assignment of error No. 3 relates to a matter which is not likely to occur on a retrial of this case. However, it is sufficiently important to require discussion. It appears that at the request of appellant's counsel, and with the approval of their own counsel, respondents had been examined by Dr. Berge prior to the trial for the purpose of ascertaining their physical condition and testifying in regard to it. He prepared two typewritten reports, signed by him, setting forth his findings as to the condition of each respondent. At the time of the trial, Dr. Berge was temporarily absent from Seattle and was not available as a witness.
Respondents' counsel offered these reports in evidence and they were admitted over the objection of appellant that they were incompetent because Dr. Berge was not present to explain them. They were read in full to the jury by respondents' counsel. We are of the opinion that, under the circumstances stated above, these reports were erroneously admitted and that appellant was prejudiced by their admission.
No. 4 is based upon the testimony of a state...
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