Todd v. Harr, Inc., 38313

• Decision Date: 25 August 1966
• Docket Number: No. 38313,38313
• Citation: 69 Wn.2d 166,417 P.2d 945
• Parties: Virginia TODD, Respondent, v. HARR, INC., a Washington corporation, Appellant.
• Court: Washington Supreme Court

Page 166

69 Wn.2d 166

417 P.2d 945

Virginia TODD, Respondent, v. HARR, INC., a Washington corporation, Appellant.

No. 38313.

Supreme Court of Washington, Department 2.

Aug. 25, 1966.

Rutherford, Kargianis & Shinn, Samuel C. Rutherford, Seattle, for appellant.

Morell E. Sharp, and James S. Turner, Seattle, for respondent.

FINLEY, Judge.

This is a lawsuit for personal injury damages, involving allegations of negligence respecting the maintenance of an apartment house stairway. The plaintiff-respondent, Virginia Todd, resided with her three daughters in a third-floor apartment in the Eulalie Apartments in Seattle which were being purchased and operated by the defendant-appellant, Harr, Inc. During the week preceding September 12, 1962, Mr. Rogers, the president of the defendant corporation, partially installed a new carpet runner approximately halfway down the stairs used in common by the apartment tenants. The new runner was laid down directly over the old carpeting; thus, the height of the tread on the last newly carpeted stair (approximately halfway down the stairway) was the thickness of the new carpet higher than the preceding stairsteps. On the night of September 12, 1962, the plaintiff was using this common stairway to ascend to her apartment. Upon reaching the first step with the new carpeting, the plaintiff, Mrs. Todd, caught her heel and fell, allegedly sustaining severe back injuries.

This lawsuit was initiated against the defendant corporation on the theory that the plaintiff's fall was a result of the defendant's negligence in failing to maintain the stairway in a reasonably safe condition. The evidence introduced at the trial focused upon the alleged inadequacy of the lighting for the stairs and the improper installation of the carpeting thereon. The defendant's answer denied any negligence, and asserted by way of affirmative defense that the plaintiff's fall had been caused by her own negligence. The jury returned a verdict for the plaintiff in the amount of $12,500. Judgment was entered accordingly.

On appeal, four of the defendant corporation's assignments of error deal with alleged prejudicial misconduct of plaintiff and her counsel during the course of the trial, and the failure of the trial court to grant a mistrial and/or a new trial. The other two assignments of error concern an allegedly erroneous failure to give one of defendant's requested instructions.

The essence of defendant's argument on appeal seems to be that, even if any one of the alleged errors at trial is not sufficient to warrant a new trial, their cumulative effect was to deny the defendant a fair trial and unjustifiably to inflame the jury, as demonstrated by the unduly excessive verdict rendered. We are unable to agree with any of appellant's contentions.

Initially, the defendant assigns error to the failure of the trial judge to grant the defendant's motion for mistrial after the following colloquy between the plaintiff and her counsel:

Q. Did you see Mr. Rogers? A. (by Mrs. Todd.) I don't believe it was that day that I saw him. I don't believe he came over until the next day. I don't know, but he did, when I called him, he told me not to worry about it, That he was covered with insurance. (Italics ours.)

The appellant quotes, in part, from Miller v. Staton, 64 Wash.2d 837, 840, 394 P.2d 799, 801 (1964), wherein we stated:

the presence of this type of statement in the record will alone lead this court to an extremely careful evaluation of the total approach or presentation to the jury, in terms of the fairness of the trial.

But, even after careful persual of the entire record, we are not convinced that the plaintiff's admittedly unresponsive answer was a deliberate attempt on her part to inject the matter of defendant's liability insurance coverage into the trial. No review of the pertinent cases is necessary to substantiate the proposition that the fact that a personal injury defendant carries liability insurance is entirely immaterial, and the deliberate or wanton injection of this matter into the case by plaintiff is ground for reversal. See, e.g., Miller v. Staton, supra; King v. Starr, 43 Wash.2d 115, 260 P.2d 351 (1953); Lucchesi v. Reynolds, 125 Wash. 352, 216 P. 12 (1923). But, in gauging the circumstances surrounding the introduction of an immaterial fact such as liability insurance, we must defer to the trial court's discretion, if soundly and fairly exercised:

The trial judge, by virtue of his favored position, should be accorded room for the exercise of sound discretion. He sees and hears the witnesses, the jurors, the parties, counsel, and any bystanders. He can evaluate first hand candor, sincerity, demeanor, intelligence, and any surrounding incidents; whereas, the reviewing court is tied to the written record. Baxter v. Greyhound Corp., 65 Wn.2d 421, 437, 397 P.2d 857 (1964).

In the instant case we agree with the trial judge's apparent conclusion that the plaintiff's unresponsive answer, including the reference to insurance, was not a deliberate act on her part; nor was it a result of pretrial collusion by plaintiff and...