State ex rel. Larpenteur v. Superior Court, King County

• Decision Date: 21 August 1935
• Docket Number: 25807.
• Parties: STATE ex rel. LARPENTEUR v. SUPERIOR COURT, KING COUNTY, et al.
• Court: Washington Supreme Court

48 P.2d 205

183 Wash. 252

STATE ex rel. LARPENTEUR v. SUPERIOR COURT, KING COUNTY, et al.

No. 25807.

Supreme Court of Washington

August 21, 1935

Department 2.

Original proceedings in mandamus by the State of Washington, on the relation of Ray Larpenteur, against the Superior Court of the State of Washington for King County and James B. Kinne, one of the Judges thereof.

Peremptory writ issued.

Leo J Brand and Tucker & Tucker, all of Seattle, for relator.

Roberts & Skeel and W. R. McKelvy, all of Seattle, for respondents.

STEINERT, Justice.

A petition for writ of mandate was filed in this court to compel the superior court to certify a proposed statement of facts, or in the alternative to institute proceedings necessary to determine and certify a correct statement. The defendant has demurred to the petition on the ground that it does not state facts sufficient to constitute a cause requiring the issuance of the order prayed for. By stipulation of the parties, the files in the cause below have been transmitted to this court for consideration upon the hearing of the petition and demurrer. We shall, therefore determine the matter on the merits, as presented, without the formality of any further return by the superior court.

The facts are these: Ray Larpenteur, a minor, who will hereinafter be referred to as plaintiff, commenced an action through his guardian ad litem, against Eldridge Motors, Inc. referred the herein as defendant, to recover damages for personal injuries resulting from a collision between plaintiff's bicycle and defendant's automobile. Upon a trial by jury, plaintiff was awarded a verdict in the sum of $1,000. Defendant interposed a motion for judgment notwithstanding the verdict and also a motion for new trial. The court denied the motion for new trial, but granted the motion for judgment notwithstanding the verdict. Upon entry of judgment dismissing the action with prejudice, the plaintiff gave notice of appeal and furnished the required cost bond. In due time plaintiff filed his proposed statement of facts in narrative form. The defendant proposed no amendments, but moved to strike plaintiff's proposed statement on the ground that it did not contain a true and correct record of the testimony in the case, and on the further ground that it was not a record made by the court reporter, but was simply a summary prepared by counsel.

After hearing the motion, the court rendered a memorandum decision pointing out certain defects in the proposed statement, particularly certain inaccuracies in the testimony, the absence of identification of certain exhibits, and the absence of the exceptions taken by both counsel to the giving, and the refusal to give, certain instructions. The court stated in its memorandum decision that plaintiff would be given the opportunity to amend his proposed statement of facts by setting forth the matters indicated by the court as being necessary.

The plaintiff then submitted his proposed amendments, covering corrections of the testimony, the identification of exhibits, and his version of the exceptions. The matter was then brought Before the court for certification of the statement of facts as amended. Defendant offered no amendments, but renewed its objections to the statement on the ground that the evidence was incomplete, and on the further ground that the exceptions were not expressed in their true, specific form.

It appears that the evidence had been taken down by reporters employed by the defendant, and that plaintiff had borne no part of the expense. It further appears that defendant was willing to let plaintiff have access to the reporters' notes, provided that plaintiff should have them transcribed in their entirety and pay the cost hereof. Plaintiff was unable financially to do this, but was willing to pay the cost of having the complete exceptions transcribed. This the defendant, in turn, refused to permit unless plaintiff paid for the transcription of the entire record.

Upon the hearing Before the court, defendant called one of the reporters as a witness, and he testified that he had compared the proposed form of exceptions with his original notes and had found that the proposed form of several of the exceptions did not correspond with the original exceptions as reported by him. After further argument of counsel, the court indicated that the statement of facts as amended was substantially correct, so far as the evidence was concerned, but that it did not properly set forth the exceptions to the instructions, given and refused. Because of that particular defect, the court refused to certify the statement. The plaintiff then applied to this court for a writ of mandate, as already stated.

The question Before us is narrowed by the particular facts involved. It will be kept in mind that the trial court has indicated that the statement of facts, so far as the evidence is concerned, is substantially correct and that the only defect therein is that the exceptions to the instructions do...