Weber v. Biddle, 38929

• Decision Date: 31 August 1967
• Docket Number: No. 38929,38929
• Citation: 431 P.2d 705,72 Wn.2d 22
• Court: Washington Supreme Court
• Parties: Laura WEBER, a widow, Respondent, v. Carole BIDDLE, whose former name was Carole Day, and Marie E. Day a single person, Appellants.

Page 22

72 Wn.2d 22

431 P.2d 705

Laura WEBER, a widow, Respondent, v. Carole BIDDLE, whose former name was Carole Day, and Marie E. Day a single person, Appellants.

No. 38929.

Supreme Court of Washington, Department 2.

Aug. 31, 1967.

McDonell, Cook & Dunlap, John Patrick Cook, Seattle, for appellants.

Clinton, Moats, Andersen & Fleck, James A. Andersen, Seattle, for respondent.

DENNEY, Judge. ^*

Appellants Carole Biddle and her mother, Marie E. Day, appeal from a judgment entered on a verdict, awarding respondent Laura Weber $57,500 for serious injuries received by Mrs. Weber in an accident at the intersection of Bothell Way and 73rd N.E. in Seattle about 11:15 p.m. on April 19, 1962. The intersection was controlled by a stop light with red, amber and green signals. Respondent was driving her car south on 73rd N.E. and intended to turn onto Bothell Way. She stopped at the intersection, waited for the light to turn green, and proceeded into the intersection where her car was struck by appellants' vehicle which ran the red light, traveling about 70 miles per hour.

In appellants' vehicle were Carole Day (she married after the accident, and is now Carole Biddle), and a young man, Lyle Ordahl, who occupied the front seat. The back seat was occupied by Berta Munro and her three infant children. The car was owned by Marie E. Day and was maintained as a family car. Carole Biddle was, at that time, a member of her mother's household, and had unrestricted use of the car.

One of the factual issues in the case was whether Carole Biddle or Lyle Ordahl was driving the Day car. Carole Biddle testified that Lyle Ordahl had forcefully pushed her away from the driver's seat when the car was stopped not long before the accident; and that he then proceeded, over her protest, to drive at a high and reckless speed. She was corroborated in this by the testimony of Berta Munro. Respondent countered with the testimony of the two witnesses, who first arrived at the scene of the accident, that a man was seen to crawl away from the door on the passenger's side of the Day vehicle. They also testified that the door on the driver's side was jammed by the accident, and that Carole Biddle was seated partially behind the wheel which pinned her to the seat. She stated to one of the witnesses that she was the driver. Further, Carole Biddle told a state trooper, shortly after the accident, that she was driving and later gave an investigator the same information.

Appellants' assignment of error, that the proof was not sufficient to justify a finding that Carole Biddle was the driver, is without merit. The jury was warranted in believing the circumstantial evidence, together with Carole Biddle's admissions, to be sufficient to prove she was the driver.

Dr. Carl Allen rendered emergency care to Carole Biddle. He described in detail the cuts upon her face; but he was not permitted to express an opinion that they were sustained by her head hitting the windshield because the trial court believed such was not the proper subject of expert testimony. The jury was as able as the attending physician to determine the cause of the cuts from a description of the damage to the windshield and of the condition of Mrs. Biddle's head. The trial judge is given a wide discretion in determining admissibility of opinion evidence, particularly in the instances where there is fair room for argument for and against admission. We find no abuse of discretion here. Ward v. J. C. Penney Co., 67 Wash.2d 858, 410 P.2d 614 (1966); Hill v. C. & E. Constr. Co., Inc., 59 Wash.2d 743, 370 P.2d 255 (1962).

Appellants next contend that the trial court erred in refusing to give the following requested instruction:

If, after a consideration of all the evidence in this case, you find that the evidence of the plaintiff and that of the defendants are evenly balanced, and that neither plaintiff nor defendants have satisfied you by a fair preponderance of the evidence of the correctness of their respective positions, then the plaintiff has failed in the burden of proof which rests upon her in this case, and your verdict must be for the defendants.

No verdict for the plaintiff can be based upon speculation or any finding by you as to what may have happened, but must be based upon a finding by you supported by a fair preponderance of the evidence of what did, in fact, happen.

While proper in some cases, Sherman v. Mobbs, 55 Wash.2d 202, 347 P.2d 189 (1959), such instruction is not required where, as here, it adds nothing to what is covered by the court's other instructions. Johnson v. Barnes, 55 Wash.2d 785, 350 P.2d 471 (1960). In its instructions the trial court told the jury that, if plaintiff failed to prove one or more of the propositions outlined as necessary to authorize recovery, its verdict must be for the defendants. The jury was also told that respondent had the burden of proving negligence, and that such negligence was a proximate cause of the injury. The requested instruction would tend to confuse, rather than clarify, in view of the issues in the case and the instructions given.

Appellants' contention that the verdict is excessive is also without merit. Respondent was 71 years of age at the time of the accident and enjoyed good health. In the accident she received a cerebral concussion, a severe fracture and dislocation of the left hip, a comminuted fracture of the left lower leg extending into the ankle joint, a fracture of the left thumb and right forearm, and fractured ribs. The upper end of the left thigh bone was forced upward into the acetabulum and was pushed partly through the pelvis. Mrs. Weber's left leg was set and, together with her left hip, was placed in a cast extending above the hip and half way down the right leg. An open reduction was performed on the right forearm, a plate and pin inserted, and her thumb was placed in a cast. She was hospitalized for many weeks, during which time she suffered much pain and discomfort. Her permanent injuries include a shortened left leg, a bony bridge between the bones of the right forearm, and a fragmented left hip joint. These last two conditions are not subject to corrective surgery because of Mrs. Weber's advanced age. Walking more than a few steps requires her to use a cane or a crutch, and her disabilities and pain will continue the rest of her life. Special damages alone exceed $6,000.

We will not substitute our judgment for that of the jury or for that of the judge when he denies a motion for new trial, based on an allegedly excessive verdict, unless this court is shocked by the amount of the award. Workman v. Marshall, 68 Wash.2d 578, 414 P.2d 625 (1966); Gustin v. Susnar, 68 Wash.2d 504, 413 P.2d 822 (1966); Lyster v. Metzger, 68 Wash.2d 216, 412 P.2d 340 (1966); Harvey v. Wight, 68 Wash.2d 205, 412 P.2d 335 (1966); Guy v. Northwest Bible College, 64 Wash.2d 116, 390 P.2d 708 (1964). Respondent's injuries were excruciatingly painful, continue to be so, and have left her permanently unable to get about in a normal manner. We cannot say that the verdict was not justified by the evidence.

Before the institution of this case, respondent commenced an action against Carole Biddle, Marie E. Day and Lyle Ordahl. Ordahl defaulted and judgment was taken against him. Later, Safeco Insurance Company paid $10,000 to respondent under an uninsured motorist provision in an insurance contract which respondent had with Safeco. The default judgment against Lyle Ordahl was later vacated upon motion of respondent and with the consent of Lyle Ordahl. The present action was then instituted against appellants. Respondent, at the time of payment of $10,000 by Safeco, executed what is known as a loan receipt and trust agreement by which she agreed, to the extent of the payment that had been made to her by her insurance company, to withhold a like amount from any monies obtained as a result of legal action for the accident in question.

Appellants sought to make General Insurance Company of America (a company related to Safeco) a party to the action. This motion was denied. It is not clearly apparent under what theory appellants claim joinder was proper. In the motion and in their brief on appeal they cite Rule of Pleading Practice and Procedure 19, RCW vol. O. This rule provides:

(a) * * * (P)ersons having a joint interest shall be made parties and be joined on the same side as plaintiffs or defendants. * * *

(b) * * * When persons who are not indispensable but who ought to be parties if complete relief is to be accorded between those already parties, have not been made parties and are subject to the jurisdiction of the court as to both service of process and venue, the court shall order them summoned to appear in the action....