Risley v. Moberg
| Decision Date | 14 October 1966 |
| Docket Number | No. 38344,38344 |
| Parties | Evanelle RISLEY, Respondent, v. John MOBERG and Helen Moberg, his wife, Appellants. |
| Court | Washington Supreme Court |
Ray L. Greenwood, Moses Lake, for appellants.
John R. Lewis, Moses Lake, for respondent.
*
This is an action for injuries alleged to have been sustained in an intersection automobile collision. The plaintiff's automobile sustained damages to its left rear fender in the amount of $65. Defendants appealed from an adverse jury verdict and judgment.
At the close of respondent's case-in-cshief, her counsel excused her main witness, an orthopedist who had treated her. He was about to rest her case, when the following occurred--to which error is assigned:
(Respondent's counsel): I have no further questions and ask that this doctor be excused. THE COURT: I would just inquire doctor.
Q. In your best professional opinion, are you able to express an opinion rather, with reasonable medical certainty and circumstance of the treatments accorded this lady and her complaints to you, as to the approximate cause of the injuries? A. Yes. Q. What is your opinion? A. It would be my opinion that the injury she sustained was the proximate cause of the complaints which she had at the time I examined her. Q. What in your opinion with reasonable medical certainty is the cause of the injury in view of the facts as you know them? A. Say that again. Q. What in your opinion is the cause of the injuries that you observed in view of the facts as they have been related to you by the patient? A. It would be my opinion that the injuries resulted from the automobile accident (January 24, 1964) she described to me in January.
In prior cross examination, the following colloquy occurred:
A. (By doctor) * * *. We would inquire with regard to the area involved, as to whether she had complaints of long standing duration or previous complaints. Q. Did you ask Mrs. Risley (respondent) if she had any previous complaints? A. Yes. Q. Do you recall what her answer was? A. I noted at the time of my examination that she had no previous difficulty with the involved area prior to the time that she was injured. * * * Q. If she had been under treatment prior to the date of the accident, would that have influenced your opinion (from your examination) one way or another? A. Yes.
Appellants established that respondent had been treated by a chiropractor from October 1 to December 7, 1962, and January 22 until March 28, 1963, for neck and back injuries as well as other complaints. 1 She had a cervical affliction in the neck at the first seven cervical vertebrae in her spine. About February 19, 1963, an industrial insurance claim had been filed with the state. This information was not given to the orthopedist who testified for respondent.
Another medical doctor testified for appellants. In his opinion, the respondent's present condition was the result of a degenerative disease of the cervical spine and this was not related to the accident trauma. A majority of patients with neck strain get over it within 3 to 6 months.
It thus becomes apparent that the trial judge's questioning of respondent's doctor was an essential and vital part of her case. In these questions, the court assumed the existence of these injuries and her condition as a result of the accident in question.
Appellants made timely motions that the court's questions and the doctor's answers be stricken from the record and for a new trial. In the trial judge's memorandum opinion denying the motion for a new trial, he said the following:
It is true, as defendants contend, that the questions as posed assumed as a fact that plaintiff had suffered injuries as a result of the collision. There is no shred of evidence in this file upon which any finding of fact could be based negating that assumption, other than the argument of defense counsel. Reasonable minds could hardly disagree upon this point. * * *
Further, it is my conviction that such 'assumptions of fact' as were contained in these questions must be read in light of the doctor's testimony. It is true that the Court could have cured any possible fault by including in its question the phrase, 'cause of the injuries claimed by plaintiff' but in a full textual appraisal I am convinced that such condition or qualification was implicit if not spoken.
Assuming that the above analysis is false or does not properly define the impact of the Court's questions I am satisfied that Instruction Number 3 given to the jury, specifically directing them to 'wholly disregard such intimation of opinion, as the same if made were inadvertent and unintentional,' and further, in Instruction Number 2, the jury was admonished that they were the exclusive judges of the facts and the weight to be given to the testimony and the Court must refrain from commenting on the evidence, negated any temptation the jury might have had to go astray.
* * * I have no doubt that the Answer given by the wintess * * * (orthopedist) substantially affected the jurors conclusions as that answer established an essential element of plaintiff's case.
The law in this state clearly prohibits the trial judge from commenting upon the evidence. Const. art. 4, § 16 provided: 'Judges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law.'
In speaking of this constitutional prohibition, Heitfeld v. Benevolent and Protective Order of Keglers, 36 Wash.2d 685, 699, 220 P.2d 655, 663, 18 A.L.R.2d 983 (1950), said the following:
The object of this constitutional provision is to prevent the jury from being influenced by knowledge conveyed to it by the court as to the court's opinion of the evidence submitted. The jury is the sole judge of the credibility and weight of the evidence, and courts should be extremely careful of any comments made in the presence of the jury, because such comments may have great influence upon the final determination of the issues.
The Heitfeld court,...
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