Mullin v. Builders Development & Finance Service, Inc.

• Decision Date: 23 May 1963
• Docket Number: No. 36424,36424
• Court: Washington Supreme Court
• Parties: Moon MULLIN and Muriel E. Mullin, his wife, Appellants, v. BULDERS DEVELOPMENT & FINANCE SERVICE, INC., Defendant, J. G. Fairfax and Jane Doe Fairfax, his wife, Respondents.

Page 202

62 Wn.2d 202

381 P.2d 970

Moon MULLIN and Muriel E. Mullin, his wife, Appellants, v. BULDERS DEVELOPMENT & FINANCE SERVICE, INC., Defendant J. G. Fairfax and Jane Doe Fairfax, his wife, Respondents.

No. 36424.

Supreme Court of Washington, Department 1.

May 23, 1963.

Benson & McNair, Lee R. McNair, Seattle, for appellants.

Skeel, McKelvy, Henke, Evenson & Uhlmann, Frederick V. Betts, Seattle, for respondents.

HILL, Justice.

This is not just another rear-end collision case; it demonstrates that there can be such a collision without damages. a verdict was directed for the plaintiffs on the issue of liability; but on the issue of damages the jury found no damages sustained by the plaintiff-husband, no damages sustained by the plaintiff-wife, and no damages to their car or the contents thereof.

A motion for a new trial was denied; and a judgment entered on the verdict. From this judgment the plaintiffs appeal, asking for a new trial.

Concededly the defendant's car hit the rear-end of the plaintiffs' car while the cars were traveling south on 5th Avenue between Pine and Pike Streets in Seattle at about 2:30 p. m. ¹ The plaintiffs' car was stopped for a red light at Pike Street and was some six feet behind a pickup truck. The defendant described the contact by saying that he could have kicked the plaintiffs' car harder than he hit it. The plaintiffs gave a version of a violent impact; the plaintiff-husband estimated the defendant's speed at 50 miles an hour, but because he had power brakes and snow tires his car was moved forward only 5 to 6 inches. He did not observe any physical damage to his car at that time; continued on his way to work; and, after reaching his place of employment, his wife continued on with the car.

The damages sought for the plaintiff-husband were: $63,275 for injuries sustained, pain, suffering and anxiety; $899.84 for lost wages and $220 for help employed; $37,200 for the present value of his diminished earning capacity; and $2,246 for hospital and medical expenses incurred. The damages sought for the plaintiff-wife were: $11,750 for injuries sustained, pain, suffering and anxiety; and permanent damage in the sum of $5,450. On a third cause of action the plaintiffs sought $300 for the depreciation in value of their car, and $20 for a crate of eggs demolished by the collision.

There was evidence upon which the jury might have returned a verdict of substantial damages for the plaintiffs; but the jury could also conclude that the contact between the two cars was very slight; that the testimony of the plaintiffs was not true; and that they were trying to parlay a minor contact between their car and that of the defendant into a bonanza.

The assignments of error relate to three claimed trial errors and a claim that the damages were so inadequate as to indicate passion and prejudice on the part of the jury.

The latter we will consider first. Apart from the testimony of the plaintiffs, which the jury apparently disbelieved practically in toto, there is no evidence which compels the conclusion that the claimed injuries resulted from the collision in question.

Considering, first, the claimed injuries of the plaintiff-husband, the plaintiff claimed both a diaphragmatic hernia and a epigastric hernia, as the result of the collision. None of the plaintiffs' doctors could testify that a diaphragmatic hernia was caused by the accident, and Dr. Smith testified that, in his opinion, it was not.

The plaintiff-husband was operated on for an epigastric hernia on June 2, 1960. Several doctors had examined the plaintiff-husband at various times after the collision, but no epigastric hernia was found until May 23, 1960. The only basis on which the doctor, who performed the June 2 operation, could fix the collision as the cause of the hernia was the history given by the patient of a violent impact.

The second epigastric hernia operation was on September 28, 1960, and the doctor who performed it said that it was an entirely new hernia in a different area and not a redoing of the previous hernia operation.

The plaintiff-wife saw a doctor for the first time 19 days after the collision. This doctor noticed that her teeth were defective and referred her to a dentist. And the only doctor she saw thereafter was Dr. Smith whom she first contacted some 6 months after the collision. Although he concluded she was then suffering from a post-concussion syndrome, there was no objective evidence of injury to her, and the diagnosis was based on a case history of violent impact.

If the jury believed there had been no violent impact, there was no basis to tie the subsequent condition of either of the plaintiffs to the collision in question.

Nor is there testimony to corroborate the testimony of the plaintiffs relative to the damage to their car or to the crate of eggs.

The trial court refused to grant a new trial because of the inadequacy of the damages; and this is a matter peculiarly within the discretion of the trial court. We will not reverse the refusal to grant a new trial on such ground except for a manifest abuse of discretion. Lipshay v. Barr (1959), 54 Wash.2d 257, 339 P.2d 471. We find no such abuse.

Two of the assignments relative to trial errors can be quickly disposed of; however, a third presents a question on which some detailed clarification seems desirable.

Error is assigned to the giving of instruction No. 5:

'I instruct you that should you find for the plaintiffs in this case, they are not entitled to recover for any physical ailments or disabilities which may have existed prior to the accident complained of in their complaint, if any, and they are not entitled to recover for any injuries or physical disabilities or ailments which they have been or may now be suffering from which were not caused or contributed to by reason of the accident complained of.'

There is no contention that it is not a proper statement of the law, but that it is inapplicable in that it relates to both plaintiffs and that there was no evidence that the plaintiff-wife had sustained any prior injuries.

As we read the instruction, there is no reference to any prior injury. The first portion of the instruction which relates to what 'existed prior to the accident complained of,' is limited to 'physical ailments or disabilities.' The plaintiffs were, and now are, seeking to recover for claimed injuries and physical disabilities of the plaintiff-wife, and the issue was whether they were caused or contributed to by reason of the accident complained of.

We see nothing in the instruction prejudicial to the plaintiff-wife; and an instruction of this tenor was required by the abundant evidence relating to disabilities and hospitalizations of the plaintiff-husband both before and after the collision.

The plaintiffs assign error to the trial court's refusal to permit the plaintiff-wife, when recalled at the end of the plaintiffs' case, to testify that the plaintiff-husband was (during the year prior to the collision with the defendant's car) in good health and that he had none of the complaints that he had after the collision. Her testimony would have been cumulative as the matter of his health and activities had been covered in considerable detail by her husband.

The admissibility of cumulative evidence lies within the sound discretion of the trial court. Braack v. Bailey (1948), 32 Wash.2d 60, 63, 200 P.2d 525, 526; Girardi v. Union High School District No. 1 (1939), 200 Wash. 21, 26, 93 P.2d 298, 301. Here there was offered only a reiteration by an interested witness, i. e., a party to the action. The trial court did not abuse its discretion.

The last of the assignments relating to claimed trial errors, relates to the trial court's refusal to permit plaintiffs' counsel to cross-examine the defendant as to the nature of the crimes of which he had been convicted, for the purpose of affecting his credibility.

Defendant had admitted on cross-examination that he had been convicted of several crimes, but there was no statement as to the nature of the crimes. This testimony was admissible to affect his credibility under either of the statutes hereinafter discussed.

The plaintiffs were desirous of getting before the jury that one of the crimes of which the defendant had been convicted was rape. RCW 10.52.030 was cited to the court and a number of the cases construing it. This statute is hereafter quoted in full, but plaintiffs' reliance was on the portion of the statute that says the conviction of a crime by a witness may be proved 'either by the record thereof, * * * or by other competent evidence, or by his cross-examination.' We have held that if the conviction may be proved by the record thereof, it follows that the nature of the crime and the length of the sentence may be shown. State v. Steele (1929), 150 Wash. 466, 273 P. 742; State v. Nichols (1922), 121 Wash. 406, 209 P. 689. The trial judge took the position that the statute applied only in criminal cases and refused to permit any cross-examination as to the nature of the crimes.

RCW 10.52.030 was adopted in 1909 as part of a comprehensive criminal code covering criminal procedure and substantive criminal offenses. The title of the act was:

'An Act relating to crimes and punishments and the rights and custody of persons accused or convicted of crime, and repealing certain acts.' Laws of 1909, chapter 249, p. 890.

We now take the position that this statute has no application to a civil case, and that an act with such a title could not constitutionally amend or repeal its counterpart (RCW 5.60.040) applicable to civil actions.

While we find only two civil cases which have considered RCW 10.52.030, the criminal cases since 1909 citing RCW 5.60.040 are as numerous as those citing RCW 10.52.030. (Until the 1909 act became effective, RCW 5.60.040 was applicable to both civil and criminal cases by virtue or of the provision in the criminal practice...