Warren v. Hynes

• Decision Date: 11 May 1940
• Docket Number: 27709.
• Citation: 102 P.2d 691,4 Wn.2d 128
• Parties: WARREN v. HYNES.
• Court: Washington Supreme Court

102 P.2d 691

4 Wn.2d 128

WARREN v. HYNES.

No. 27709.

Supreme Court of Washington

May 11, 1940

As Modified June 12, 1940.

Department 1.

Action by Earl Warren, by E. A. Warren, guardian ad litem, against Samuel J. IIynes, for injuries sustained in an automobile collision. From a judgment for the defendant, plaintiff appeals.

Reversed.

In motorist's action for injuries sustained in intersectional collision, whether motorist who was favored driver, and who looked to left when he was between 150 and 180 feet from intersection, saw no approaching automobiles and did not again look in that direction until his automobile was in center of intersection, was contributorily negligent was for the jury, where evidence was conflicting. Rem.Rev.Stat. § 6360-88.

Appeal from Superior Court, King County; Roger J Meakim, judge.

Koenigsberg & Sanford, of Seattle, for appellant.

Kahin Carmody & Schramm, of Seattle, for respondent.

MILLARD Justice.

A minor, by his guardian ad litem, brought this action to recover for personal injuries sustained by him in an automobile collision. Trial of the cause to a jury resulted in verdict in favor of the defendant. From judgment entered thereon, motion for new trial having been overruled, plaintiff appealed.

The facts are, briefly, as follows: The course of Dexter avenue, which is a paved street in the city of Seattle seventy-eight feet wide, is north and south. That avenue intersects with John street, an east and west paved highway approximately forty-two feet wide. About 8:30 p.m. August 8, 1938, Earl Warren, age sixteen years, was operating his automobile south on Dexter avenue. As he approached the intersection, when at a point one hundred and fifty to one hundred and eighty feet north of the intersection, he looked to his left, or east, for traffic on John street. He did not see from that place of observation any approaching travel or headlights on John street. He then proceeded into the intersection when he looked to the right, or west, on John street for travel from that direction. When the front wheels of appellant's automobile were just over the center line of John street and while on his own side of the highway (west side) he glanced quickly to the left or east when for the first time he saw respondent's automobile which was traveling westerly on John street. Before appellant could gain any speed with his automobile, respondent's automobile collided with the left rear end of appellant's automobile causing the latter to turn over in the south crosswalk. This action was brought to recover for the personal injuries sustained by Earl Warren as a result of that collision.

Respondent's cross-examination, over objection, of appellant concerning the latter's occupation, by which cross-examination respondent was permitted to accuse appellant of the commission of crimes, is assigned as error.

In the direct examination of Earl Warren, who is now approximately seventeen years old, he was not interrogated concerning, nor was any reference made to, his occupation. Appellant withdrew from his complaint by trial amendment served and filed prior to the trial of the cause all claims for future loss of wages or employment. In the cross-examination of Earl Warren the following occurred:

'Q. What is your occupation? A. I have been going to school; I haven't any occupation.'

The appellant objected to further examination on the question of occupation. Respondent's counsel then placed in writing the question he proposed to ask the appellant and handed it to the court. The following colloquy was had in the absence of the jury:

'The Court: All right, you may state in the record now what question you wish to ask the witness.

'Mr. Kahin: I wish to ask the witness at the present time what his occupation is. That is the first question.

'The Court: You have already asked him. He said he had none. 'Mr. Kahin: I wish to ask him if he hasn't made his living by stealing automobiles and holding up people, if that hasn't been a source of his livelihood, a true source of his livelihood and one of his main activities * * *.'

Appellant objected on the ground that the sole design of the question was to prejudice the jury against the appellant and on the further ground of incompetency, irrelevancy and immateriality because it did not have anything to do with the merits or the issues of the case. The objection was overruled. Earl Warren resumed the stand, the jury was recalled and cross-examination was continued as follows:

'Mr. Kahin: Mr. Barber, will you stand up?

'Mr. Sanford: Excuse me, just a minute. Come down from the stand. (Speaking to witness.)

'Mr. Kahin: Well, I object to Counsel giving any advice to the witness.

'Mr. Sanford: He hasn't resumed the stand.

'Mr. Kahin: I think he has resumed the stand and I insist on proceeding.

'Mr. Sanford: I have a right to advise my client on his protection under the law.

'The Court: I will advise the witness of his rights, if any,----

'Mr. Sanford: (Interposing) Very well.

'The Court: (Continuing)--if it becomes necessary. You may take the stand, young man.

'Q. What were you just advised by Counsel?

'The Court: You need not answer that question if you do not wish to.

'Q. Do you prefer not to answer? A. Yes, I do.

'Q. Isn't it a fact that your occupation and been that of a hold-up man, a bandit and an automobile thief? A. I have no occupation.

'Q. Answer the question. Aren't these two men that you have held up, standing up?

'Mr. Sanford: Is your answer no?

'The Court: Just a minute, young man. I am bound to tell you that the law provides in this State that you cannot be required to answer any question which, in your opinion, may tend to incriminate you. By that, I mean you will not be required to sit up on the stand and admit any crime. You may answer the question or not, as you please.

'Q. You prefer not to answer that? A. Yes, I do.

'Mr. Kahin: That is all, you may sit down. (Speaking to two men standing in back of courtroom.)'

While the extent of the cross-examination of a witness is a matter which rests largely in the discretion of the trial court, the rule is well settled that the answer of a witness upon cross-examination upon a merely collateral matter, e.g., regarding specific acts which would show his past conduct, his antecedents and character cannot be contradicted.

Whether a matter is collateral within the meaning of the rule is whether it is admissible for any purpose independently of the contradiction.

'The test as to whether a matter is material or collateral, within the meaning of the rule, is whether the cross-examining party is entitled to prove it in support of his case.' State v. Johnson, 192 Wash. 467, 73 P.2d 1342, 1344.

Applying that test it is clear that the trial court committed prejudicial error in overruling appellant's objection to the cross-examination. Respondent was not entitled to prove Earl Warren's occupation in support of respondent's case. The rule is firmly established in this state that a witness cannot be impeached by showing the falsity of his testimony concerning facts collateral to the issue. In such matters the party cross-examining the witness is concluded by the answers given. State v. Sandros, 186 Wash. 438, 58 P.2d 362. See, also, State v. Johnson, 192 Wash. 467, 73 P.2d 1342, in which the authorities on this question are collected.

In State v. Dale, 119 Wash. 604, 206 P. 369, 370, we held that where the state on cross-examination explores the subject of a previous arrest of the accused for a distinct offense, the state is bound by the answers as upon a purely collateral matter, and that it constitutes reversible error to permit the state to introduce rebuttal evidence thereon. In the course of our opinion in State v. Dale, supra, we said: 'Since the state was not in any manner attempting to prove a previous conviction, the matter of a previous arrest and the previous possession of whiskey was not made admissible by the statutes referred to, and, if admissible at all, which in the light of what was said in State v. Smith, 103 Wash. 267, 174 P. ., may well be doubted, was purely a collateral matter upon which the witness could not be impeached, under elemental and familiar rules. The state was in any event, therefore, concluded by his answers upon cross-examination, and it was reversible error to permit the introduction of the rebuttal testimony. A careful study of the record fails to convince us that there was any other error of a sufficiently prejudicial nature to warrant reversal; but for the error pointed out the case must be, and it is hereby, reversed and remanded for a new trial.'

In Kirk v. Seattle Electric Co., 58 Wash. 283, 108 P. 604, 31 L.R.A.,N.S., 991, which was an action to recover for personal injuries for an assault, the plaintiff, who was respondent on appeal, was permitted to impeach the motorman of the streetcar in regard to his testimony as to his age. We held that the age of the first motorman was an immaterial matter and there was not any necessity for inquiry in regard to it; that it was a collateral matter and if the plaintiff were permitted to cross-examine the witness as to his age he would be bound by the answer and could not subsequently contradict that answer.

See, also, to the same effect, Wharton v. Tacoma Fir Door Co., 58 Wash. 124, 107 P. 1057.

In State v. Spadoni, 137 Wash. 684, 243 P. 854, 860, a judgment entered upon conviction of homicide was reversed.

In the course of our opinion we said: 'A witness may not be questioned as to collateral matters and then be impeached because he does not make true answers. On questions of this sort the state is bound by his answers. State v Payne, 6 Wash. 563, 34 P. 317; State v. Melvern, ...