Sutton v. Mathews

• Decision Date: 14 August 1952
• Docket Number: Nos. 32044,32045,s. 32044
• Citation: 41 Wn.2d 64,247 P.2d 556
• Court: Washington Supreme Court
• Parties: SUTTON, v. MATHEWS et ux. UGGEN, v. MATHEWS et ux.

Page 64

41 Wn.2d 64

247 P.2d 556

SUTTON, v. MATHEWS et ux.

UGGEN, v. MATHEWS et ux.

Nos. 32044, 32045.

Supreme Court of Washington, Department 2.

Aug. 14, 1952.

Bayley, Fite, Westberg, Madden & Goodin, Seattle, for appellants.

Edwin R. Johnson, Tacoma, for respondents.

HAMLEY, Justice.

Melvin Sutton and his sister, Charlotte Uggen, brought separate actions against C. J. Mathews and Mrs. Mathews to recover for personal injuries and property damage sustained in an automobile accident. The accident occurred near Shelton, in Mason county, Washington, on November 9, 1948, when a vehicle driven by Mathews collided with one driven by Sutton. The two actions were consolidated for trial and appeal. Mr. Mathews, who was alone in his car at the time of the accident, will be referred to us as if he were the only defendant and appellant.

The jury returned verdicts in favor of both plaintiffs. Judgments were entered accordingly, and defendant appeals.

The first assignment of error is that the trial court erred in excluding certain testimony of Dr. Wayne Walker bearing upon the adequacy of Sutton's vision at the time of the accident.

The trial court excluded this evidence on the ground that it was too remote to be of any pertinent value. Respondents argue that this was a correct ruling. They also contend that, if the ruling was incorrect, there still should be no reversal because there was no offer of proof, and because, in any event, the exclusion of such evidence was not prejudicial.

As a part of his affirmative defense of contributory negligence, appellant alleged that Sutton's vision was defective at the time of the accident, and that the eyeglasses then being worn by him were not adequate. In proof of this allegation, appellant offered the testimony of two optometrists, Dr. Glenn W. Landers, of Shelton, and Dr. Wayne Walker, of Olympia.

Dr. Landers, who testified by deposition, told of an examination he had made of Sutton's eyes on June 26, 1941. This was seven years and four months prior to the accident. This examination revealed that, without glasses, Sutton then had a visual acuity of 20/300 in his right eye, and 20/400 in his left eye. Dr. Landers made an optometric prescription for Sutton and, with the glasses prescribed, Sutton had a visual acuity of 20/15 in each eye. Sutton was wearing these glasses at the time of the accident and had had no re-examination of his eyes prior to that time.

Dr. Walker testified that his former associate, Dr. Gellman, now deceased, had examined Sutton's eyes on May 3, 1949. This was approximately six months after the accident. The record of this examination showed that, without glasses, Sutton's vision was 20/400 in either eye. This record further showed that with the aid of lenses, his vision could be brought up to 20/50 in the right eye, minus one letter, and 20/80 in the left eye. Dr. Walker testified, in effect, that the size of the second number in this method of measurement indicates quality of vision, 20/20 being considered normal and a larger second number indicating poorer vision.

Dr. Walker was then handed Dr. Landers' card record of the latter's 1941 optometric examination, and was asked what that card appeared to be. Counsel for respondent objected to the question and the court inquired as to the purpose of the question. Counsel for appellant indicated that the purpose was 'to see if' the witness would be able to form any comparisons of the information shown on the card record of Dr. Landers' examination with that shown on the card record of Dr. Gellman's examination. When the trial court expressed doubt as to the propriety of the question, counsel for appellant asked that the jury be excused so that an offer of proof could be made.

After the jury left, a lengthy colloquy between the trial court and counsel for the parties occurred. In the course of this colloquy counsel for appellant stated, in several different forms, the question he desired to ask of Dr. Walker. Typical of counsel's statements to the court regarding the proposed question are the following:

'* * * Now, I wanted this man here who is an optometrist to testify as to the relationship between those two [optometrical prescriptions] whether one was stronger, one was weaker, one was less or more and so on * * *'

'I want to determine from this witness if he can tell us whether or not the optometrist's prescription, the prescription for glasses, shown on one card is stronger or weaker than that prescribed by the other card.'

'Yes, I was going to ask him to compare, on a hypothetical question, assuming he truth of Dr. Landers' testimony with respect to this card * * *'

It will be observed that none of these statements purports to tell the court what the answer of the witness would be--whether favorable to appellant or respondents. Nor do any of these statements amount to a representation that the witness could answer the question at all. As a matter of fact there is considerable doubt whether Dr. Walker could have expressed an opinion based upon a comparison of the two cards. He had already testified that the lens prescription noted on Dr. Landers' card 'has no meaning' because it did not indicate whether the 'cylinder' there referred to was plus or minus.

In order to obtain appellate review of trial court action in excluding evidence, there must be an offer of proof. State v. Pierce, 175 Wash. 523, 27 P.2d 1087; Huff v. Huff, 178 Wash. 684, 35 P.2d 86. An offer of proof must be sufficiently definite and comprehensive fairly to advise the trial court whether or not the proposed evidence is admissible. State v. Williams, 12 Wash.2d 16, 120 P.2d 502; Tomlinson v. Bean, 26 Wash.2d 354, 173 P.2d 972. An additional purpose of such an offer of proof is to inform the appellate court whether appellant was prejudiced by the exclusion of the evidence. Godefroy v. Hupp, 93 Wash 371, 160 P. 1056; Poropat v. Olympic Peninsula Motor Coach Co., 163 Wash. 78, 299 P. 979; Kirsch v. Kirsch, 192 Wash. 156, 159, 73 P.2d 356.

This additional purpose of an offer of proof is not served by a statement merely advising the trial court of the question proposed to be asked. We cannot assume that the witness could have answered the question, or what his answer would have been. Olive Co. v. Meek, 91 Wash. 169, 157 P. 460. As we said in Simonson v. Huff, 124 Wash. 549, 554, 215 P. 49, 51, this court will not reverse the cause 'on the mere chance that an answer favorable to the...