Robbins v. Greene

• Decision Date: 21 September 1953
• Docket Number: No. 32365,32365
• Citation: 43 Wn.2d 315,261 P.2d 83
• Court: Washington Supreme Court
• Parties: ROBBINS, v. GREENE et al.

Page 315

43 Wn.2d 315

261 P.2d 83

ROBBINS, v. GREENE et al.

No. 32365.

Supreme Court of Washington, Department 2.

Sept. 21, 1953.

Gavin, Robinson & Kendrick, Yakima, for appellant L. A. westerweller.

Homer B. Splawn, Earl M. Holmes, Robert I. Bounds, Yakima, for respondent.

SCHWELLENBACH, Justice.

The issue in this case is whether the negligence of a prospective purchaser (provided he is a prospective purchaser), who is driving an automobile in a demonstration, accompanied by the agent or salesman of the owner-dealer of the automobile, may be imputed to the owner of the automobile.

About 5:30 in the afternoon of September 14, 1951, Curtis G. Robbins was driving his automobile in a northerly direction on a county road in the Tieton-Cowiche area in Yakima county. He was about to drive into the lane leading to his house, was off of the blacktop, and was continuing in a northerly direction, traveling at about fourteen miles an hour. At this point the road makes rather a sharp turn to the west. Just as he left the blacktop a car came from the west at a terrific rate of speed (witnesses estimated its speed at from seventy to ninety miles an hour), missed the curve, struck the Robbins car, then careened on down the road, hit another car which was about one hundred feet to the rear of the Robbins car, and finally came to rest off of the road. Mr. Robbins was quite seriously injured.

The car which did the damage was a Lincoln Cosmopolitan. It was owned by L. A. Westerweller, and was used as a demonstrator car in his business, Midway Motors. Its price was $4,400--not what could be termed a medium priced car. That morning, about nine o'clock, Thomas Greene, a salesman for Midway Motors, had started out in the car for the purpose of visiting an elderly couple near Tieton. This couple had been in the day before and had seemed quite interested in this particular car. Greene testified that he drove the car to the place of business of James E. Kelso; that he had first met Kelso in the summer of 1950 when he had sold him a Packard; that a month before the accident Kelso came into Midway Motors and looked at a 1950 Monterey that was there; that the next day he took the Monterey to Kelso's place of business and let him drive it; that later, Kelso's Packard was damaged and while it was being repaired he came in and became interested in the Lincoln.

Greene testified that he told Kelso that he had to call on some people at Cowiche and asked him if he would like to go along and try out the Lincoln; that they stopped at the liquor store and bought a bottle; that they went to Kelso's house, where Kelso changed his clothes; that they had a drink or two (there was also some testimony that Greene had called some lady from Kelso's house); that they went to Tieton (Kelso driving), and saw some prospects and also had a drink at the Vet's Club; that they went (Greene driving) to see a Mr. Lilja, who was a 'bird dog' of Greene's (a 'bird dog' is a man who gives names of prospects to a salesman and then receives a split of the commission if a sale is made); that at that time he decided not to see the elderly couple because he had liquor on his breath; that when they started back to town Kelso was driving; that Kelso seemed interested in the Lincoln and asked about mileage, trade-in, etc.; that he did not notice that Kelso was driving fast; that he was injured in the accident and spent three weeks at the hospital. Nevertheless, he was seen pouring out what was left in the whiskey bottle after the accident. Five empty beer bottles were also discovered in the Lincoln.

Mr. Westerweller testified that the Lincoln Cosmopolitan was used by him personally and was used by salesmen for demonstration purposes only with his personal permission; that no salesman had a right to interest prospects by buying them any drinks; that if a salesman would make a deal as the result of liquor he would turn the sale down. There was considerable testimony concerning the methods of salesmanship and concerning restrictions placed upon salesmen in connection with their work.

Thomas L. Milliken, sales manager for Midway Motors, testified that they expect their salesmen to report at the sales meeting at eight o'clock a. m. each morning; that they expect them to be on the job until five p. m. and to check in during the day. He testified that on the day of the accident Greene came to him and asked permission to take the Lincoln Cosmopolitan to the Tieton-Cowiche area to show to the elderly couple who had been there the day before, and who had seemed to be definitely interested in the car; that he told Greene to go ahead but to be back by about ten o'clock if he could make it; that he did not see Greene again that day and that he never called in during the day; that Greene was given the car to go to that one specific place for that one specific purpose.

Oscar Breeding, Jr., who worked for Midway Motors at that time, testified that in the afternoon of the day the accident occurred a man came in to see Greene; that he (Breeding) asked Mr. Milliken where Greene was and Milliken replied, 'I don't know when he will be back, he called in a while ago.' Milliken denied that he talked to Breeding about Greene that day.

The jury returned a verdict against the Greenes and Westerweller. Westerweller alone appeals.

Error is assigned in failing to grant a motion for mistrial and in refusing to grant a new trial upon the grounds of misconduct of counsel in deliberately injecting into the case an improper questioning of a witness; in allowing a witness to testify to, and in failing to strike hearsay testimony; in failing to grant a nonsuit or in failing to grant a motion for directed verdict or for judgment notwithstanding the verdict, upon the grounds that Kelso was the operator of the Westerweller vehicle and was a bailee of the vehicle for whose negligence, if any, appellant was not responsible as a matter of law; in giving certain instructions; and in failing to give certain proposed instructions.

During the cross-examination of appellant the following occurred:

'Q. In the case that you started, that was tried last jury term, entitled, 'L. A. Westerweller vs. James E. Kelso,' you took the same position in that case as you take now, namely, at the time and place of the accident Mr. Greene was without the scope of his employment and wasn't doing anything for you? A. (Nod.)

'Q. Were you successful in that claim?

'Simultaneously

A. N--(in a very low tone of voice.)

Mr. Gavin: I_____

Mr. Splawn: I withdraw the question----

A._____o. (very low)

Mr. Gavin: I object----

'Mr. Splawn: I withdraw the question, I withdraw the question.

'Court: Objection sustained.'

Appellant immediately moved for a mistrial, which was denied.

Respondent contends that there was no prejudice because the jury did not hear the answer. The prejudice, if any, was not in the giving of the answer, but in asking the question. Motions for mistrial usually arise in cases where the matter of insurance is interjected during the trial. See the recent case of King v. Starr, Wash., 260 P.2d 351 for a thorough discussion of this question.

In Gephart v. Stout, 11 Wash.2d 184, 118 P.2d 801, 805, a motion for mistrial was made, based upon the following testimony:

'Q. Do you recognize the defendant (appellant), Mr. Stout, as some one you saw near there at that time? A. Yes. I believe he is the gentleman that came back and told the boy--Mr. Davis: Just a moment. I object. A. (continuing)--that he had nothing to worry about--The Court: Just a minute. The objection is sustained. A. (continuing)--that the was fully covered by insurance. Mr. Davis: Just a moment. I object as not responsive. The Court: The objection is sustained ant the jury instructed to disregard the answer of the witness.'

In ruling upon the motion the trial court said:

'The motion of the defendant (appellant) that the Court order a mistrial is denied for the reason that it is my belief that the question was not of such a nature as to indicate deliberate intent to inject the matter of insurance into the case, nor was it the intention of the witness to do so; * * *.'

We held:

'A mistrial should not have been granted unless it appeared that counsel for respondent or the witness deliberately, wilfully, or collusively had undertaken to inform the jury that the appellant was in some way protected by insurance. [Citing cases.]

'As Judge Chadwick stated in Jensen v. Schlenz, supra (89 Wash. 268, 154 P. 159):

"* * * The gravamen of the offense is not in the disclosure of a collateral fact, but in the manner of its disclosure; that is, the misconduct of counsel."

Trial courts are often confronted with situations where counsel, in his zeal, goes a little too far, and opposing counsel is lying in wait to move for a mistrial. There are other situations where counsel wilfully interjects a collateral matter for the deliberate purpose of influencing the jury. Then there are a large number of borderline cases, where it is difficult to decide whether the interjection of collateral matter is inadvertent or deliberate. In such instances the trial court must exercise its discretion in ruling on the motion. We feel that the question asked in this case falls in the last category. We are satisfied that the court did not abuse its discretion in denying the motion for a mistrial.

Cleatus Thornton, a young neighbor of Robbins, heard the crash, saw the Robbins car in the air, and rushed over to the scene. He was told to get an ambulance. He jumped into his car and drove a mile and a half to a hardware store operated by William Glenn Weis. It took him two or three minutes. He told Weis, who telephoned for an ambulance. Weis testified that it was a little less than five minutes from the time Cleatus arrived at the store that he, Weis, arrived at the scene of the accident. He testified that within four or five minutes after he arrived he heard Kelso...