Powell v. Continental Baking Co.

• Decision Date: 31 January 1957
• Docket Number: No. 33851,33851
• Parties: Charles POWELL and Jane Powell, Appellants, v. CONTINENTAL BAKING CO., a corporation, Respondent.
• Court: Washington Supreme Court

Page 753

49 Wn.2d 753

306 P.2d 757

Charles POWELL and Jane Powell, Appellants, v. CONTINENTAL BAKING CO., a corporation, Respondent.

No. 33851.

Supreme Court of Washington, Department 1.

Jan. 31, 1957.

Ward V. Williams, Lynden, for appellants.

Eggerman, Rosling & Williams, Henry E. Kastner, Seattle, for respondent.

SCHWELLENBACH, Justice.

On the afternoon of April 19, 1952, Jane Powell was driving her automobile north on 23rd avenue in Seattle, approaching the intersection with Madison street. She passed a panel delivery truck belonging to Continental Baking Company, which was being driven by Lowell M. Mason, after which she drove back into his lane ahead of him. According to her testimony the traffic signal light turned yellow while she was about half way down the block; that as she approached the intersection the light turned red and she applied the brakes and stopped; and that all of a sudden the truck bumped into her car from the rear and the impact shoved her across the intersection. Mr. Mason testified that she stopped on the yellow light; that he struck the rear of her car lightly; that when they stopped the truck was about a foot and a half distant from her car; and that they decided to drive across the intersection, park, and talk things over.

This action was commenced, alleging the following damages as a result of defendant's negligence: reasonable hospital expense, $203.35; reasonable medical expense, $325, depreciation in value of automobile, $500, and general damages, $15,000, or a total of $16,028.35. Defendant answered, denying plaintiffs' allegations, and affirmatively alleging contributory negligence; and further, that the plaintiffs were living separate and apart at the time of the action; that they were subsequently divorced; and that the alleged cause of action was the sole and separate property of Jane Powell.

Upon the trial the jury, on November 29, 1955, returned a verdict for the plaintiffs in the sum of $3,000.

Promptly thereafter, and upon retiring to chambers, the trial judge made this memorandum:

'On the issue of liability, the verdict in favor of plaintiff is supported by substantial evidence. On the amount of damages, I think the jury was taken in by a woman who is thoroughly dishonest. Her damage claim, as I view it, is willfully false and fraudulent. Any amount over $500.00, including auto damage, is outrageous.'

Motions for judgment n.o.v. and for new trial were made and argued, briefs were submitted, and on March 30, 1956, the trial judge rendered a forty-five page memorandum opinion. Two and one-half pages were devoted to the motion for new trial, and the remainder was devoted to a discussion of Rule 16, Superior Court Rules, covering new trials, 34A Wash.2d 117, and also as amended, effective July 1, 1954. The discussion was directed to the inclusion of the following in the rule.

'9. That substantial justice has not been done.

'In all cases wherein the trial court grants a motion for a new trial, it shall, in the order granting the motion, give definite reasons of law and facts for so doing.'

The trial court then entered this order:

'In the Superior Court of the State of Washington in and for

King County

'Charles Powell and Jane Powell, Plaintiffs,

vs.

Continental Baking Co., a corporation, Defendant.}

No. 467859

Order Denying Defendant's Motion For Judgment N.O.V. and

Granting Defendant's Motion for New Trial

'This Matter having come on for trial before the undersigned Judge of the above-entitled court sitting with a jury on November 28 and 29, 1955, all parties being present and represented by their respective attorneys of record, the case having been submitted to the jury, the jury having returned a verdict in favor of plaintiffs in the sum of $3,000.00 and thereafter the defendant having filed its alternative motions for judgment n. o. v. and for a new trial, and said motions having come on regularly for hearing before the undersigned Judge, and counsel for both parties having submitted briefs and the court having taken the matter under advisement and having rendered a memorandum decision denying the motion for judgment n. o. v. but granting the motion for new trial, Now, Therefore,

'It is Hereby Ordered that defendant's motion for judgment n. o. v. be and it is hereby denied, and the defendant is allowed an exception to this ruling.

'It is Further Ordered, Adjudged and Decreed that defendant's motion for a new trial be and it is hereby granted on the ground that substantial justice has not been done.

'This order granting a new trial on the above mentioned ground is based upon the following reasons: That the plaintiff, (plaintiff herein referring to Jane Powell--Charles Powell not testifying) in the opinion of this trial court was wilfully false and fraudulent and that any amount over $500.00, including automobile damage, is outrageous; that the court is of the opinion that the plaintiff's alleged injuries and suffering were nonexistent; that this opinion is formed partly on the basis of many little clues and symptoms about her appearance and demeanor which the court is unable to describe in detail other than to say that they were the sort commonly considered in discriminating between the true and the false, and partly upon the entire evidence in the case and its appraisal of the overwhelming weight of the credible testimony; that it is the court's opinion that the jury was deceived because of its lack of experience and discrimination, being below average in both of these respects; that for five jurors the case was their first case; that the court feels the average jury would have detected the lack of substance, if not the entire falsity, of plaintiff's claimed injuries, and would have found either a nominal amount for plaintiff or a verdict for defendant; that the appearance and demeanor of the parties and witnesses and their impact on the jury and its reaction to them can not be captured for the record; that the verdict was against the weight of the evidence and was a miscarriage of justice.

'Plaintiffs are allowed an exception to this order granting the defendant's motion for a new trial.

'Done in Open Court this 5th day of April, 1956.

'Theodore S. Turner [Signed]'

Judge

Appellants appeal and respondents cross-appeal.

We are not impressed by the trial court's opinion that the jury lacked experience and discrimination. The members were examined voir dire as to their qualifications, and by their answers satisfied counsel and the court, at that time, that they were qualified. Neither are we concerned because this was the first case for five of the jurors. The average citizen does not serve more than two or three times as a juror. He or she takes the responsibility very seriously and realizes that, for the time being, he or she is actually a part of the court. This is especially true of those who are serving for the first time. We are aware of no rule which requires a juror to have served on one or more cases in order to be a competent trier of facts.

Mrs. Powell testified that when the truck hit, her head went back with such force that her hat was knocked off; that she felt faint; that a 'real hot flash' went straight up her back; that a lady came and took her to Dr. Lundmark's office and that he sent her to the hospital. She testified:

'Q. What after effects, if any, did you have as a result of the accident? A. Well, in the beginning I had pains.

'Q. Where were they? A. In the back of my head and neck, and in the lower part or middle part of the back, back about half-way between my shoulders. He gave me codeine, because I know the codeine would make me sick. If I didn't take the codeine, I hurt, and I did. And I was sore. I was just miserable.

'Q. And how long did that last, that condition? A. Well, for three or four days I had soreness, and they gave me therapy, sending me to a therapist. It was more of a massage. I don't know what all they did to me. I know every time they moved me I was unhappy.

'Q. How long did...