Warren v. Hart

Decision Date29 June 1967
Docket NumberNo. 37817,37817
Citation71 Wn.2d 512,429 P.2d 873
CourtWashington Supreme Court
PartiesViola WARREN, Appellant, v. Arthur H. HART and Lucille Hart, his wife, Respondents.

Mary E. Burrus; Kahin, Horswill, Keller, Rohrback, Waldo & Moren and David F. Hiscock, Seattle, for appellant.

Miracle, Treadwell & Pruzan and Howard P. Pruzan, Seattle, for respondents.

DONWORTH, Judge.

This case arose out of a rear-end-automobile collision which occurred on an access road leading into Aurora Avenue from Phinney Avenue in Seattle on which both cars involved were traveling in the same direction.

Respondent wife (herein referred to as Mrs. Hart), driving a vehicle belonging to her sister, overtook the car driven by appellant (Mrs. Warren) and the collision occurred. As a result, Mrs. Warren sustained substantial injuries, and her car was badly damaged. She instituted this action for damages alleging that Mrs. Hart had been negligent in failing to observe traffic conditions on Aurora Avenue and in following her car too closely. Mrs. Hart answered by denying the alleged acts of negligence and counterclaiming for damages to her vehicle on the theory that Mrs. Warren had been negligent in failing to signal her intention to enter traffic on Aurora Avenue and in turning in front of the Hart vehicle without giving any warning or signal.

A trial was had before the court sitting with a jury. The testimony of the two parties concerning the events immediately preceding the accident were in direct conflict. No disinterested eyewitness was produced by either party. The jury returned a verdict for respondent but allowed her no damages with respect to her vehicle. From a judgment of dismissal entered on the verdict after the denial of her motion for a new trial, Mrs. Warren has appealed.

In her brief, Mrs. Warren states her assignments of error as follows:

The trial court erred in permitting the introduction of evidence regarding citations not having been issued by the investigating officer.

This error was rendered irreparable by the misconduct of counsel as shown by his closing argument wherein he declared that a 'little baby court' had already decided this matter and that the jurors should be guided by that decision.

The trial court further erred in not granting a new trial to rectify the damage done by the combined effect of the first two errors.

Referring to the first assignment, we have previously stated that the fact of citation or noncitation of a driver by the investigating law enforcement officer is inadmissible. Billington v. Schaal, 42 Wash.2d 878, 882, 259 P.2d 634, 637 (1953):

While an arrest or citation might be said to evidence the on-the-spot opinion of the traffic officer as to respondent's negligence, this would not render the testimony admissible. It is not proper to permit a witness to give his opinion on questions of fact requiring no expert knowledge, when the opinion involves the very matter to be determined by the jury, and the facts on which the witness founds his opinion are capable of being presented to the jury. Johnson v. Caughren, 55 Wash. 125, 104 P. 170; Bruenn v. North Yakima School District, 101 Wash. 374, 172 P. 569. The question of whether respondent was negligent in driving in too close proximity to appellant's vehicle falls into this category. Therefore, the witness' opinion on such matter, whether it be offered from the witness stand or implied from the traffic citation which he issued, would not be acceptable as opinion evidence.

In relation to the foregoing, we also note that the respondent is not contending that the injection of the matter of the noncitation by the investigating officer was not a deliberate act. In fact, if would be difficult, if not impossible, for her to make such a claim. The following portion of the record patently demonstrates the intentional nature of the question proposed by her counsel Q. Now did the officer issue a citation to either one? A. No, he did not. Miss Burrus: If your Honor please, I do not think it is appropriate to ask that question and I will ask the answer to be stricken, and also that the witness not answer before the question has been completely asked. There wasn't an opportunity afforded me to make the objection. Mr. Miracle: Your Honor,--The Court: Objection overruled. The answer may stand. Proceed.

In Miller v. Staton, 64 Wash.2d 837, 840, 394 P.2d 799, 801 (1964), we noted that the rule, that an intentional injection of collateral matter of a prejudicial nature will be reversible error,

(M)ust be administered with care, to the end of according reasonable latitude to the interpretation of statements made in the heat of trial and, subsequently, viewed only on a cold record, and with the aid of hindsight. Nevertheless, 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. (Italics ours.)

The above-quoted portion of the record might be sufficient to support appellant's contention that she is entitled to a new trial were it not for the fact that appellant's counsel was initially responsible for raising the subject of the presence of a law enforcement officer at the scene of the accident. In her opening statement to the jury, appellant's counsel stated, in part:

After the impact she drove on over to the curb right behind Allen Place, stopped, got out of the car and went back and said she would try to call the police, which she did from a motel a little further down the street.

Standing alone, this statement by appellant's counsel would not merit, or justify, amplification or edification by respondents' counsel as to the actions of the police officer upon his arrival. But appellant's counsel reopened this matter during direct examination of appellant. Appellant testified that she had called the police from a nearby 'pay' telephone; that she had waited for the police to arrive, and that an officer had finally arrived at the scene of the accident, but she had not been told his name. Appellant then testified Q. After the officer was there, where did you next proceed to? A. After the officer was there? Q. Yes. A. He told me I was free to leave the scene. I returned to my home. (Italics ours.)

In considering the reference to the police in counsel's opening argument and in appellant's testimony, it is quite possible that the jury inferred: (1) that appellant had fewer qualms about who was at fault because she had been the one to contact the police, and/or (2) that the investigating police officer concluded that appellant was not at fault, since he had indicated that she was 'free to leave the scene.' Unfortunately, respondents' counsel subsequently chose deliberately to solicit an answer from his client with reference to the fact of noncitation by the investigating officer, rather than attempting immediate corrective action in the form of a motion to strike the answer and a request that the jury be instructed to disregard that particular portion of appellant's testimony. Appellant's counsel was initially responsible for injecting the police officer and his actions into the trial of this case. Respondents' counsel was entitled to counter or correct the unfavorable implications arising from appellant's presentation to the jury of statements and opinions collateral to the issues of the case. We have made similar rulings in other instances where counsel have invited inquiry into and speculation about improper matter. Short v. Hoge, 58 Wash.2d 50, 360 P.2d 565 (1961); Bradshaw v. City of Seattle, 43 Wash.2d 766, 264 P.2d 265, 42 A.L.R.2d 800 (1953).

In the light of this state of the record, we think that appellant's first assignment is without merit.

Appellant next asserts that the aforementioned alleged error of the trial court in allowing respondent to testify that neither driver was given a traffic citation was compounded and made irreparably harmful by the reference of respondents' counsel to this portion of the testimony in the closing argument. The general tenor of counsel's remarks in this respect is readily identifiable from the following excerpts of his closing argument to the jury:

I would like to point out to begin with there are three logical steps in...

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    ...the preservation of error requirement is "for misconduct so flagrant that no instruction can cure it." Id. (citing Warren v. Hart , 71 Wash.2d 512, 518, 429 P.2d 873 (1967) ). We need not belabor every belated accusation of misconduct. We agree with the Court of Appeals that GPC and NAPA fa......
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    ...an objectively ascertainable “guilt scent” is not comparable to stating the fact of an arrest. ¶ 38 McLean next cites Warren v. Hart, 71 Wash.2d 512, 429 P.2d 873 (1967), another case that fails to support his argument. Warren is a civil case in which defense counsel argued that the jury sh......
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    ...that no instruction could have cured the prejudicial effect.” Sommer, 104 Wash.App. at 171, 15 P.3d 664 (quoting Warren v. Hart, 71 Wash.2d 512, 518-519, 429 P.2d 873 (1967)). Accordingly, we hold that the trial court did not abuse its discretion in denying Defendants' post-trial motions ba......
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    ...appellate review. Sommer v. Dep't of Soc. & Health Servs., 104 Wash.App. 160, 171, 15 P.3d 664 (2001) (citing Warren v. Hart, 71 Wash.2d 512, 518–19, 429 P.2d 873 (1967)). ¶ 39 We also generally review a trial court's decision to admit or exclude evidence for abuse of discretion. Salas v. H......
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2 books & journal articles
  • §59.6 Analysis
    • United States
    • Washington State Bar Association Washington Civil Procedure Deskbook (WSBA) Chapter 59 Rule 59.New Trial, Reconsideration, and Amendment of Judgments
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    ...ground that the error is so flagrant and prejudicial that it could not have been remedied by a cautionary instruction. See Warren v. Hart, 71 Wn.2d 512, 518, 429P.2d873 (1967). It has also been held that error may be preserved if the trial court has been "adequately apprised" of an issue. S......
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