Snyder v. Sotta, 114--III

• Decision Date: 06 August 1970
• Docket Number: No. 114--III,114--III
• Parties: Glenn L. SNYDER and Marta M. Snyder, husband and wife, and Marta M. Snyder, Guardian ad Litem of Richard Snyder, a minor, Respondents, v. Robert E. SOTTA and Jane Doe Sotta, husband and wife, Appellants, Prosser Public Hospital District, Defendant.
• Court: Washington Court of Appeals

Page 190

3 Wn.App. 190

473 P.2d 213

Glenn L. SNYDER and Marta M. Snyder, husband and wife, and

Marta M. Snyder, Guardian ad Litem of Richard

Snyder, a minor, Respondents, v. Robert E. SOTTA and Jane Doe Sotta, husband and wife, Appellants, Prosser Public Hospital District, Defendant.

No. 114--III.

Court of Appeals of Washington, Division 3.

Aug. 6, 1970.

Rehearing Denied Sept. 24, 1970.

Gavin, Robinson, Kenrick, Redman & Mays, Leo C. Kendrick, Yakima, for appellants.

Critchlow, Williams, Ryals & Schuster, Rembert Ryals, Richland, for respondent.

MUNSON, Judge.

Defendants, ¹ Robert E. Sotta and wife, appeal from an order granting plaintiffs a new trial following a defense verdict in a malpractice action for injuries suffered by plaintiff Richard Snyder, son of Glenn and Marta Snyder. The malpractice aspect of this case and its concomitant facts are not pertinent to the issue presented for determination.

The trial court's order was based upon the failure of substantial justice. Pursuant to CR 59(f) the court set forth its reasons in support of the order: (A) Plaintiffs' proposed instructions were (1) inadvertently submitted to, (2) read, and (3) discussed by the jury during their deliberations; (B) three incidents of misconduct by defendants' counsel, so flagrant and prejudicial that plaintiffs were not required to seek a curative instruction or move for a mistrial; and (C) observations made, and comments heard, by the trial judge during the course of trial, which matters are not contained wholly within the record.

Dispatch of Plaintiffs' Proposed Instructions to the Jury Room

Affidavits of jurors show that plaintiffs' instructions were inadvertently in the jury room, read by the jury and discussed, along with the court's instructions. Although one of the affiants claims the reading of both sets of instructions caused some confusion, the trial court could only consider the affidavits insofar as the facts of the alleged inadvertence were set forth and not their effect upon the verdict, Cox v. Charles Wright Acad., Inc., 70 Wash.2d 173, 422 P.2d 515 (1967); State v. Rinkes, 70 Wash.2d 854, 425 P.2d 658 (1967). From the facts related it is for the court to determine the effect of any inadvertence or misconduct. State v. Wilson, 70 Wash.2d 895, 431 P.2d 221 (1967).

A verdict will generally not be set aside because a paper, which should not be with the jury during their deliberation, has been sent to the jury room through inadvertence or accident, and not through the connivance or design of the prevailing party, unless it appears the paper was of such a character as to prejudice the unsuccessful party or that other circumstances render its reading harmful. State v. Rinkes, Supra; State v. Lindeman, 64 N.D. 518, 254 N.W. 276, 93 A.L.R. 1442 (1934). Plaintiffs have failed to affirmatively show the presence of either exception. ²

The trial court stated it was its belief, based upon personal experience and review of the controlling law, that erosion of the normal deliberative process must be presumed when any substantial or foreign matter related to issues before the jury is obtained and perused by them. We do not believe such a strong presumption, per se, is required. In State v. Rinkes, Supra, 70 Wash.2d at 862, 425 P.2d at 664 the court states This court has stated that consideration of any material by a jury not properly admitted as evidence vitiates a verdict when there is a reasonable ground to believe that the defendant may have been prejudiced.

The content of the document must be examined by the court in determining any possible prejudicial effect. In this instance, we believe the jury would have realized a mistake had been made, that they were to consider only the court's instructions; all without any subliminal effect attributable to the presence of plaintiffs' proposed instructions. If this were the only ground upon which the trial court granted the new trial, we would be inclined to reverse its order. However, this is but one factor to be considered in the totality of circumstances which support the granting of plaintiffs' motion.

Misconduct of Counsel

The second ground for granting plaintiffs' motion is alleged acts of misconduct by defendants' counsel, so flagrant and prejudicial that plaintiffs were not required to seek a curative instruction or mistrial. The first of these instances occurred during the cross-examination of plaintiffs' witness, wherein defense counsel referred to a conclusion contained in a medical report, which was adverse to plaintiffs' theory even though it was previously determined by the court that conclusions contained in such reports would not be admissible unless the individual rendering same was present for the opposing party to cross-examine. The second instance involves defense counsel's continued questioning over sustained objections to his proposed questions.

Following the second instance of misconduct, the trial court offered plaintiffs the opportunity to move for a mistrial. Plaintiffs declined stating:

(U)nfortunately, Judge, the posture of this case is such that we just don't deem that we can afford to make such a motion. We would like to have it so declared, but we will not make the motion.

The misconduct of defendants' counsel lies not in the asking of questions but rather in persevering and asking questions to which objections had been previously sustained. The proper procedure upon the sustaining of an objection is to present the anticipated response by an offer of proof outside the presence of jury--not by continuing to question in a vein held objectionable by the court. Shaw v. Prudential Ins. Co. of America, 166 Wash. 652, 8 P.2d 431 (1932). To persist after the court's ruling is error and may be prejudicial error. However, by refusing to make the motion for mistrial, solicited by the trial court, plaintiffs waived their right to subsequently claim a mistrial as to either occurrence of misconduct up to that time. Nelson v. Martinson, 52 Wash.2d 684, 328 P.2d 703 (1958); Casey v. Williams, 47 Wash.2d 255, 287 P.2d 343 (1955); Sun Life Assurance Co. of Can. v. Cushman, 22 Wash.2d 930, 158 P.2d 101 (1945).

The third incident of misconduct occurred during defendants' examination of their witness, Dr. Smith, when, after testifying he had examined plaintiff Richard Snyder, he was asked the results of his examination. Plaintiffs objected--claiming the examination had been conducted without their permission. At this point, the weekend recess was taken. The objection was discussed at the beginning of the session on the following Monday morning whereupon plaintiffs' counsel advised the court in discussing this objection:

Mr. Kendrick's questions have by and large been general questions counsel feels, and the problem hasn't really arisen, but it could arise. The court could make it clear to the doctor that he has to relate his summary to the history, and even if he can't do that completely, he, at least, is not to advise the jurors, innocently or otherwise, that he did see the child.

Once again, no motion for mistrial was forthcoming from plaintiffs.

At no time during the entire 7-day trial did plaintiffs move for a mistrial. Only after an adverse verdict do plaintiffs urge a new trial by reason of misconduct. Plaintiffs allege the reason for their refusal to accept the court's solicitation for a mistrial motion, or to seek one on their own initiative, was the difficulty they would experience in procuring their medical testimony at a future trial. Yet, this was exactly the same position in which plaintiffs found themselves when they made their motion for a new trial since the posture of the availability of witnesses had not changed. Consequently, this exercise of judgment by plaintiffs must be deemed to be an instance of 'gambling on the verdict.' We do not believe the exception of flagrant and prejudicial misconduct under Warren v. Hart, 71 Wash.2d 512, 518, 429 P.2d 873 (1967) or Carabba v. Anacortes School Dist. No. 103, 72 Wash.2d 939, 435 P.2d 936 (1967) is applicable.

Plaintiffs cite a fourth instance of alleged misconduct but it pertains to a query by counsel for Prosser Public Hospital District, who is not a party to this appeal. Therefore, it will not be considered.

Observations and Comments Outside the Record

The third reason in support of the trial court's order relates to matters not entirely of record but cited in the trial court's oral opinion upon the granting of the motion which in part is as follows:

I want the parties to know that I conferred at length with counsel on the day of the trial concerning who would try the case. Judge Lawless was tied up with an extremely long criminal case. A visiting judge was sent in to help us, and he was available and on the scene. I asked that counsel consider using the visiting judge because I knew some of the defendant principals personally. I knew the parents of the plaintiff Snyder, and I knew the defendants. I knew all of these people on only a one-contact basis, but I knew the feelings would be strong, and I felt the Court's general usefulness would be best served by using a judge from another community. However, one of the attorneys insisted on his right to proceed, and stated that he would file a Motion and Affidavit of Prejudice against the visiting judge, and I felt that he had a right to do so. This was one of the plaintiff's attorneys.

We proceed to trial. The only problem that was created was that which I suspected; that there was a great deal of hard feelings on the part of litigants, and much of that was ultimately directed against the Court. I'm...