State v. Higgins

• Court: Washington Supreme Court
• Writing for the Court: ROSELLINI; NEILL
• Citation: State v. Higgins, 449 P.2d 393, 75 Wn.2d 110 (Wash. 1969)
• Decision Date: 02 January 1969
• Docket Number: No. 40285
• Parties: The STATE of Washington, Respondent, v. George W. HIGGINS and Edith Higgins, his wife; Frederick W. Higgins and Lois F. Higgins, his wife; and the Estate of Frances L. Higgins, Deceased, and the unknown heirs of Frances L. Higgins, Deceased, Petitioners, Otto Jacober et al., Respondents.

Page 110

75 Wn.2d 110

449 P.2d 393

The STATE of Washington, Respondent, v. George W. HIGGINS and Edith Higgins, his wife; Frederick W Higgins and Lois F. Higgins, his wife; and the Estate of Frances L. Higgins, Deceased, and the unknown heirs of Frances L. Higgins, Deceased, Petitioners Otto Jacober et al., Respondents.

No. 40285.

Supreme Court of Washington, Department 1.

Jan. 2, 1969.

Rehearing Denied Feb. 24, 1969.

Kenneth C. Hawkins, Yakima, Noon & Stauffacher, Walter Stauffacher, Grandview, for petitioners.

John J. O'Connell, Atty. Gen., Joseph Loonam, Jerry Landeen, Asst. Attys. Gen., Olympia, for respondent.

ROSELLINI, Judge.

This is a condemnation action, wherein the state is taking a strip of land running along U.S. highway No. 12, formerly U.S. highway No. 410, and crossing a farm located between Grandview and Sunnyside in Eastern Washington. A portion of the condemned land is under lease to Otto Jacober, who has conducted an automobile repair shop and wrecking yard on it.

The owner and the lessee agreed, prior to the trial on the damage question, that the lessee's interest amounted to 12 1/2 per cent of the value of the leased land and that, if the court would submit a special interrogatory to the jury asking it to state the value of the land leased to Jacober, both parties would abide by the jury's decision. Accordingly, the trial court was asked to submit such an interrogatory and agreed to do so.

The state objected, contending that the submission of an interrogatory of this type was contrary to the mandate of RCW 8.04.110, which provides that the jury in a compensation trial shall fix as a lump sum the amount of damages which shall result to any and all parties claiming an interest in the land. The trial court, however, was of the opinion that the discretion to submit interrogatories, vested in it under Civil Rule for Superior Court 49(b), RCW vol. 0, could be exercised in this case without offending the purpose of RCW 8.04.110.

In submitting the special interrogatory, the court instructed the jury as follows:

You are giving a general verdict which should represent the total amount that all parties to this case are entitled to as a whole. In order to segregate out of that total figure or total verdict the amount which relates only to the land and improvements covered by the Jacober lease, Exhibit 5, you are given a special interrogatory in which you should state such amount. The respondents as a whole will receive no more than your general verdict, and the figure which you give in answer to the special interrogatory is included in the general verdict and should not be considered by you as additional compensation. Instruction No. 14.

A general verdict of $99,000 was returned and the amount given in response to the special interrogatory was $20,000.

After the jury was dismissed, the judge encountered a juror in the hall, who told him that the jury had added the 'lessee's interest' to the total value of the land. Affidavits procured from other jurors tended to confirm this statement.

The state filed a motion for a new trial, based largely on an incident which occurred while the jury was deliberating. A juror knocked on the door and asked the bailiff if the jury could ask the judge for clarification of an instruction. The bailiff advised the juror that this could be done only in the presence of counsel for both parties. The juror indicated that he did not wish to press the matter, and the bailiff did not notify the judge.

In ruling on the motion for a new trial, the court said that this incident was not a basis for granting such a trial, and, while it took cognizance of the contents of the jurors' affidavits, it acknowledged that these could not support such an order, since they concerned matters which inhered in the verdict. However, the court on its own motion ruled that counsel for the owner had made an improper argument in addressing the jury, which was likely to confuse the jurors and cause them to render an erroneous verdict. On the basis of this misconduct and its probable effect on the verdict, the trial court ordered a new trial unless the owner would accept a verdict reduced to $79,000. The owner's petition for a writ of certiorari was granted by this court.

The argument which the trial court found objectionable was one which, the court said, encouraged the jury to add the amount which it had found in answer to the special interrogatory to the amount which it had determined as the value of the land and improvements as a whole, allowing a double recovery for the value of the leased land. It is the contention of the owner that counsel's argument was incorrectly construed by the trial court.

While the trial court did not quote the language of counsel which it found objectionable, we find the following in the record of the argument:

I most sincerely recommend that you ladies and gentlemen return a verdict in favor of the respondents and fix the damages for the Higginses in the area of $118,000.00, and the damages for Mr. Jacober in the area of an additional $30,000.00, because $20,000.00 would be included in the $118,000.00. The $118,000.00 value, of course, includes the land and improvements on the Jacober property, but does not include anything for the other element, so that you total verdict, in my opinion, should be the $118,000.00 for the Higginses, plus the $30,000.00 that Mr. Jacober requests, and in your interrogatory you should put the amount that you find is attributable to Mr. Jacober alone.

This argument clearly requests the jury to include the value of the Leased land in the amount to which the Higginses are entitled, which counsel suggests should be $118,000, and should allow $30,000 for the 'other element.' The 'other element' referred to in this portion of the argument had been defined for the jury earlier in counsel's argument as follows:

Now, Mr. Jacober testified that in his opinion $50,000.00 is the proper figure to put in there (in answer to the special interrogatory), and he arrived at that on the basis that the land and the improvements, I gather from his testimony, are $20,000.00, and that his inventory was $30,000.00, if I understand his testimony correctly, and I think that's what he said on the witness stand. * * *

Thus, the 'other element' referred to in the argument was the lessee's inventory, a noncompensable item under the instructions, and certainly not the item to be valued in answer to the interrogatory. The jury was instructed to give the value which it ascribed to the leased land and improvements, not the value of the lessee's interest or his business or his inventory. A request that it give an award for the inventory in addition to its award for the land and improvements was contrary to the instructions and highly prejudicial to the state.

Even assuming that the jury could construe this language of counsel as a request for an award of $30,000 for land and improvements, it was still a request to add that amount to the value which it ascribed to the condemned land and improvements as a whole, for counsel stated that the $20,000 value of leased land and improvements would be included in the $118,000 which he recommended that the jury find as the amount to which the Higginses were entitled. In other words, the jury might conceivably have construed this argument as suggesting that $20,000 was the value of the lessors' interest in the leased land and $30,000 was the value of the lessee's interest. There was no evidence to support such a finding and in fact no attempt to prove the respective values of the interests of the lessors and lessee. There was no evidence that the value of the leased land and improvements exceeded $20,000.

Thus, this argument of counsel was unmistakably an invitation to the jury to return a verdict which would include compensation for the leased land in an amount greater than twice the amount which they should find to be its value.

Apparently, counsel for the state did not hear this argument or at least did not comprehend its import, for no objection was raised by counsel, but it did not escape the attention of the trial court. In granting the motion for a new trial, the court said that it had sat waiting for an objection while this argument was being made and that, when none had been forthcoming, it should have made its own objection and should have '* * * (cited) to the jury that counsel was erroneously misquoting the law and was misleading the jury as to Instruction 14 * * *.'

The petitioner in this court argues that the jury could not have been misled because in an earlier portion of his argument he had admonished the jury that its general verdict would cover the interests of both parties. The court was justified in concluding, however, that the salutary effect of this earlier statement by counsel was overcome by the force of the contrary argument made later and near the end of counsel's address to the jury.

The granting of a new trial is within the sound discretion of the trial court, where the order is not predicated solely on rulings as to law, and an order granting the same will not be disturbed in the absence of a showing of an abuse of discretion. Coleman v. George, 62 Wash.2d 840, 384 P.2d 871 (1963).

Since the record discloses that counsel did make a misleading and prejudicial argument which was likely to confuse the jury as to the meaning of the instruction and lead it to render an erroneous verdict, we cannot say that the trial court abused its discretion in predicating its order for a new trial on this misconduct.

It is urged that the trial court abused its discretion in granting the new trial on a ground not urged by counsel. The trial court, however, has the inherent power to grant a new trial on its own motion upon any ground which might have been urged by counsel. Any question concerning this right was laid to rest in State v. Hawkins, 72 Wash.Dec.2d 561, 434 P.2d 584 (1967), which...