Snowhill v. Lieurance

• Court: Washington Supreme Court
• Writing for the Court: WEAVER; FINLEY
• Citation: Snowhill v. Lieurance, 435 P.2d 624, 72 Wn.2d 781 (Wash. 1967)
• Decision Date: 21 December 1967
• Docket Number: No. 39011
• Parties: Alelene G. SNOWHILL, a single woman, Appellant, v. Doris LIEURANCE and John Doe Lieurance, her husband, Respondent.

Page 781

72 Wn.2d 781

435 P.2d 624

Alelene G. SNOWHILL, a single woman, Appellant, v. Doris LIEURANCE and John Doe Lieurance, her husband, Respondent.

No. 39011.

Supreme Court of Washington, Department 1.

Dec. 21, 1967.

Sterbick, Manza, Moceri, Gustafson & Marigi, Michael S. Manza, Tacoma, for appellant.

Severyns & Moffett, Tyler C. Moffett, Port Angeles, for respondent.

WEAVER, Judge.

This is an action for damages for personal injuries and property damage.

The facts are not in dispute. November 21, 1963, plaintiff stopped her 1958 Fiat behind another automobile waiting for a green light at an intersection in Port Angeles. Plaintiff's automobile was struck from the rear by a 1963 Mercury station wagon owned by defendant and driven by his wife. The record supports the trial judge's observation, made in his memorandum opinion after argument on a motion for a new trial, that 'proof of liability was adequately sustained and could very well have been admitted.'

Fundamentally, plaintiff suffered severe whiplash injuries when her automobile was struck from the rear and driven into the vehicle stopped ahead of her. A passenger in plaintiff's car described the first impact as an 'explosion.' Plaintiff's car was a total loss.

Plaintiff suffered injuries to her neck and low back. She was hospitalized twice between the date of the accident and the date of trial; the first time for 10 days, the second time for 15 days. Her injuries, treatment, and subsequent condition were described thoroughly and completely by competent medical and lay testimony. After hearing the testimony of twenty witnesses, the jury returned a verdict for $60,000 in plaintiff's favor.

Defendant argues three grounds in support of his motion for a new trial. The first is that the court erred when it refused to admit defendant's exhibit No. 31 in evidence.

The important dates are these: (1) the accident was November 21, 1963; (2) this action was filed August 31, 1964; (3) the case came to trial November 9, 1965. While this lawsuit was pending, defendant's Then counsel (not trial counsel) employed a private firm of investigators to place plaintiff under surveillance. A private investigator, Doris Minard, representing herself to have the same name as plaintiff, gained her confidence and inveigled her into having a picnic at Crescent Beach. While on the picnic, the investigator allegedly got a large plastic ball from the car and, for a few moments, tossed it to plaintiff. Another investigator, hidden in the bushes, took a 16 mm. moving picture of the occurrence. The film is the proposed exhibit. Mrs. Minard, although apparently in court at one time during the trial, did not testify.

Prior to trial, plaintiff and her cousel learned of the moving picture film. Anticipating that defense counsel would introduce the film in evidence, plaintiff's counsel referred to it in his opening statement and on several occasions thereafter. It is not error for a plaintiff to anticipate a defense. Snyder v. General Electric Co., 47 Wash.2d 60, 69, 287 P.2d 108 (1955).

When defense counsel offered to show the moving picture to the jury, he stated: 'I cannot identify the film, your honor, by any witness.' The trial of a lawsuit is not a social gathering where you show 'home movies.' You first establish that they are entitled to be admitted in evidence; if you do not, they are inadmissible. The trial court did not err when it refused to admit exhibit No. 31.

Next, the trial court stated in his memorandum opinion that the reference of plaintiff's counsel to defendant's use of a 'private detective agency that investigated the plaintiff's activities prior to trial, who took the motion picture, exhibit No. 31, and other photographs of the plaintiff' injected into the minds of the jury that plaintiff 'had referred from time to time to the defendants' insurance carrier.'

We do not agree: there were no trial objections made to the references; the jury was certainly aware of the fact that plaintiff did not cause the pictures to be taken; insurance companies are not the only ones who might hire a detective agency; defense counsel referred to and justified the use of a detective agency in his closing argument to the jury; the record does not support the conclusion that 'insurance' was injected into the evidence.

Finally, the main thrust of defendant's motion for a new trial is that the verdict was so excessive 'as Unmistakably to indicate that the amount of the verdict must have been the result of passion or prejudice.' (Italics ours.)

The trial judge ruled that he would grant defendant's motion for a new trial unless plaintiff would consent to a reduction of the verdict to $35,000. Plaintiff did not accept the offer. Our consideration of this question is governed by the legislative mandate to us found in ...