Sun Life Assur. Co. of Canada v. Cushman

• Decision Date: 26 April 1945
• Docket Number: 29515.
• Citation: 158 P.2d 101,22 Wn.2d 930
• Parties: SUN LIFE ASSUR. CO. OF CANADA v. CUSHMAN et ux.
• Court: Washington Supreme Court

158 P.2d 101

22 Wn.2d 930

SUN LIFE ASSUR. CO. OF CANADA v. CUSHMAN et ux.

No. 29515.

Supreme Court of Washington

April 26, 1945

Department 1.

Action by the Sun Life Assurance Company of Canada against Ernest F Cushman and wife to reform a life policy. The jury returned a verdict for plaintiff. From an order granting a motion of defendants for a new trial, the plaintiff appeals.

Reversed and remanded with instructions.

MILLARD J., dissenting.

Appeal from Superior Court, Skagit County; W. L Brickey, judge.

Eggerman, Rosling & Williams, of Seattle, for appellant.

J. L. Rucker and O. D. Anderson, both of Everett, for respondents.

JEFFERS, Justice.

This is an appeal by plaintiff, Sun Life Assurance Company of Canada hereinafter referred to as appellant, from an order granting a new trial to defendants, Ernest F. Cushman and wife, who will hereinafter be referred to as respondents. The order recites that the motion for new trial was granted upon the specific ground of misconduct of the appellant and of the jury. While the merits of the action are not involved in this appeal, but only questions pertaining to the order granting a new trial, we are of the opinion that, in order to get a picture of just what happened, a somewhat extended statement will be necessary, incorporating therein the affidavits both in support of and opposed to the motion.

Respondents, in their brief, state that they are satisfied with appellant's statement of the case except that, whereas appellant has set out only a part of the affidavit of J. L. Rucker, one of the attorneys for respondents, all of the affidavit should have been included. In view of this, we adopt generally the statement as made by appellant in its brief.

The action was instituted by appellant against respondents to reform a certain policy of life insurance issued by appellant to respondent Ernest Cushman. The policy was issued without a medical examination and in reliance upon the correctness of certain answers made by Cushman as to his health and medical history, which were set forth in the application for the policy. The appellant contends that the answers of Cushman to the questions regarding his insurability are false and were knowingly made by him for the purpose of deceiving and misleading the company into issuing the policy covered by the application.

The case was tried to the court and jury, and, on the third day of trial, a unanimous verdict was returned by the jury in favor of appellant. Respondents then filed a motion for judgment notwithstanding the verdict, and, in the alternative, for a new trial, naming nearly all the statutory grounds. The trial court denied the motion for judgment notwithstanding the verdict, but granted the motion for a new trial upon the specific ground of 'misconduct of the plaintiff and of the jury.' This appeal is from the order granting a new trial which was entered on August 6, 1944.

Four affidavits were filed, one in support of the motion and three in opposition. The affidavit in support of the motion is by J. L. Rucker, attorney for respondents, and the three in opposition thereto are by Guy J. Gay, branch manager of appellant and a witness at the trial, W. N. Dow, a juror, and Donna Marjorie Dow, the juror's daughter. These affidavits are all set forth in the statement of facts.

The trial started on Monday morning, March 27, 1944, and the introduction of evidence was concluded at the close of trial on the following day, Tuesday. All that remained for Wednesday morning was the reading of instructions to the jury and the arguments of counsel. When the case was called for trial on Monday morning, three young girls were present, sitting at one of the three tables provided for counsel and the litigants. The remaining two tables were occupied, one by counsel for appellant and Mr. Gay, and the other by counsel for respondents and the respondents. The girls each had an opened stenographic note book, each was supplied with a number of pencils, and it was obvious that they were in court for the purpose of testing their proficiency at taking shorthand notes. They sat through both days of testimony, taking down the proceedings, except that one of the girls left during the second day. During a recess of the second day of trial, Mr. Gay approached the table where the three girls were sitting and spoke to them. As to what took place during this conversation, we quote from the uncontradicted affidavit of Mr. Gay:

'Guy Gay, being first duly sworn upon oath, deposes and says: That he is the branch manager of Sun Life Assurance Co. of Canada, plaintiff in the above entitled proceeding; that he is a resident of Seattle, Washington, and attended the trial of this action on March 26 and 27, 1944. That during the second day of the trial, three young girls occupied a table in the court room with stenographic notebooks and commenced to take down the court room proceedings in shorthand. The girls were obviously there for practice and to test their shorthand proficiency. That affiant was not acquainted with any of these girls and had not met or ever seen any one of them Before . That during the recess, affiant approached the table where all three girls were sitting and inquired how they were getting on. They replied that they were getting on very well, and affiant remarked that if they could take down court room proceedings they would have no trouble whatever in obtaining a stenographic position. Affiant then asked them when they would be out of school and their ages, and each replied that she graduates from high school in June of 1944, and each was eighteen years old. Affiant then stated that if, upon their graduation, the girls desired to obtain stenographic positions in Seattle and would contact him, he would be glad to assist them in obtaining positions. Affiant also stated that he was in need of stenographic help in his office. Affiant left his business card on the table where the three girls were sitting and stated that if they wished to come to Seattle he would be glad to have them contact him. Affiant further stated that they should not consider coming to Seattle unless they had relatives or friends in Seattle with whom they could live as living quarters in Seattle were so scarce that they should not consider coming to Seattle unless they were assured of a place to live. Affiant did not inquire the names of any one of the girls and had no further conversation with them. If it is a fact that one of these girls was the daughter of Juror No. 2, W. N. Dow, affiant had no knowledge of such fact; that affiant had no intention whatever of tampering with the jury and if he had known of the relationship between one of these girls and a member of the jury, he would not have carried on the foregoing conversation with them.

'Affiant further states that it is a fact that his office is shorthanded, and it is nearly impossible to obtain stenographic help in Seattle, as employment is now handled through the U.S. Employment Service, and available candidates are directed by the U.S.E.S. to essential war industries. For this reason, affiant has adopted the practice, when visiting cities other than Seattle, to contact the high schools and business colleges to learn if prospective graduates are planning to come to Seattle, as it is only from areas outside the Seattle Critical Labor Area that new stenographic help can be obtained.

'Affiant further states that his conversation with these three girls was directed to the three of them and not to any particular one; that he did not ask for their names and was entirely unaware of any relationship that may have existed between any one of them and any of the jurors. Affiant further stated to the three girls that if any one of them knew of a high school classmate who wanted to come to work in Seattle to give that person affiant's name and address.'

It subsequently developed that one of the girls is named Donna Marjorie Dow, and that she is the daughter of W. N. Dow, juror No. 2. Miss Dow's affidavit is as follows: 'Donna Marjorie Dow, being first duly sworn, on oath deposes and says: That she has read the affidavit of J. L. Rucker, dated March 30, 1944, and the answering affidavit of Guy Gay, dated March 31, 1944. Affiant was one of the three girls referred to in said affidavit. The statements contained in Mr. Gay's affidavit are correct, except that there were only two of us present at the time Mr. Gay approached us with the offer of a position, and with the exception of the statement that we were about to graduate from high school in June of 1944. We had graduated from high school last June, and are now attending business college in Mount Vernon and will graduate this coming June. Mr. Gay laid his business card on the table Before us and stated that if we wished to come to Seattle in June that he would have a position available in his own office. Affiant did not disclose her name to Mr. Gay and he did not ask for it, and affiant is sure that Mr. Gay was not aware of the fact that she was the daughter of Juror W. N. Dow.'

On Wednesday morning, Before court convened for the reading of instructions, Mr. Dow approached Mr. Rosling, attorney for appellant, and Mr. Rucker, attorney for respondents, who were standing together talking, and the following conversation took place, as quoted from the affidavit of Mr. Rucker 'J. L. Rucker, being first duly sworn, on oath, deposes and says: That he is one of the attorneys for the above named defendants, and makes this affidavit for and on defendants' behalf and in support of defendants' motion for a New Trial in the within action; that the trial of said action was commenced on Monday, March 27, 1944, and that said trial was concluded on Wednesday, March 29, 1944;...