Wright v. Safeway Stores, Inc.

• Decision Date: 31 January 1941
• Docket Number: 27980.
• Citation: 7 Wn.2d 341,109 P.2d 542
• Court: Washington Supreme Court
• Parties: WRIGHT et al. v. SAFEWAY STORES, Inc.

109 P.2d 542

7 Wn.2d 341

WRIGHT et al. v. SAFEWAY STORES, Inc.

No. 27980.

Supreme Court of Washington, En Banc.

January 31, 1941

Action by Nellie U. Wright and husband against Safeway Stores, Inc. and another. The jury returned a verdict in favor of plaintiffs against the named defendant only. From an order granting named defendant a new trial, and from a judgment dismissing action with prejudice as to defendant William Weiuman, plaintiffs appeal.

Affirmed.

BLAKE MAIN, MILLARD and DRIVER, JJ., dissenting.

Appeal from Superior Court, King County; Robert M Jones, judge.

Kennett & Benton, of Seattle, for appellants.

Skeel McKelvy, Henke, Evenson & Uhlmann, of Seattle, for respondents.

JEFFERS Justice.

Nellie U. Wright and Charles M. Wright, her husband, instituted this action to recover damages for injuries claimed to have been sustained by Mrs. Wright as the result of a fall on the floor of a store operated by defendant Safeway Stores. Defendant William Weiuman was assistant manager of the store.

The case was tried to the court and jury, and a verdict was returned in favor of plaintiffs and against Safeway Stores only. On December 23, 1939, the trial court granted the motion of Safeway Stores for a new trial, on the ground and for the reason that instruction No. 11, given by the court, which reads as follows: 'If you find that either party of the action has failed to produce evidence under the control of such party, then the law presumes that such evidence, if introduced, would be against the contention of such party,' is an erroneous statement of the law as applied to the case at bar; and for the further reason that the instruction is not justified or supported by the evidence in this case.

The court, construing the verdict of the jury as being favorable to defendant Weiuman, entered a judgment dismissing the action with prejudice, as to him.

Plaintiffs have appealed from that part of the judgment dismissing defendant William Weiuman, and from the order granting a new trial to Safeway Stores.

We shall hereinafter refer to Mrs. Wright as though she were the only appellant.

Appellant, in accordance with § 2, rule IX Rules of the Supreme Court, 193 Wash. 10-a, filed a list of the points upon which she expected to rely on appeal, and the record certified here does not purport to cover the entire record, but only so much thereof as pertains to the points relied upon, the first one being:

'1. That, under instruction No. 14 and verdict returned by the jury, it was error for the court to dismiss the action, with prejudice, as to the defendant Weiuman. That the verdict returned by the jury did not entitle said defendant to a dismissal with prejudice but, at the most, to a mistrial.'

Instruction No. 14, in so far as material, provides: 'Upon retiring to the jury room you will select one of your number as foreman, whose duty it will be to sign whatever verdict you agree upon, or to communicate with the court if necessary. You will be furnished with all of the exhibits, these instructions, and the following forms of verdict: One form you will use in case you find for the plaintiffs, in which event you will fill in the amount you allow them and the name or names of the defendant or defendants against which you find the verdict; the other form you will use in case you find for a defendant or both defendants, in which event you will fill in the name of the defendant or defendants for whom you find such verdict.' (Italics ours.)

The verdict as returned by the jury was in the following form: 'We, the jury in the above entitled cause, do find for the plaintiffs and against the defendant Safeway Stores, Inc., a corp. In the sum of $3000.00.'

Appellant contends that under the instruction given by the court, it was necessary for the jury to make an affirmative finding of non-liability in favor of defendant Weiuman, Before he could be dismissed from the case, and that the trial court misconstrued the legal effect of the verdict as returned. No authority is cited by appellant to sustain such contention.

In the construction of a verdict, the first object is to learn the intent of the jury, and when this can be ascertained, such effect should be given to the verdict, if consistent with legal principles, as will most nearly conform to the intent. The jury's intent is to be arrived at by regarding the verdict liberally, with the sole view of ascertaining the meaning of the jury, and not under the technical rules of construction which are applicable to pleadings. Cameron v. Stack-Gibbs Lumber Co., 68 Wash. 539, 123 P. 1001. When the first clause of instruction No. 14, relative to forms of verdict, is considered in connection with the form of the verdict returned, there is no doubt in our minds of what the intention of the jury was. We are of the opinion that, by returning a verdict against Safeway Stores only, the jury indicated that they did not find for the plaintiff and against defendant Weiuman just as plainly as though they had made an affirmative finding to that effect. Appellant's first contention cannot be sustained.

The second point relied upon by appellant is that no error was committed by the court in giving instruction No. 11, hereinBefore set out. Appellant contends that the instruction contains a correct statement of the law, citing the following cases, in which it is contended the rule has been applied: State v. Constantine, 48 Wash. 218, 93 P. 317; Glasgow v. Nicholls, 124 Wash. 281, 214 P. 165, 35 A.L.R. 419; Lenover v. Beckman, 142 Wash. 98, 252 P. 533; Wood v. Miller,

147 Wash. 251, 265 P. 727; Rosenstrom v. North Bend Stage Line, 154 Wash. 57, 280 P. 932; Bank of Chewelah v. Carter, 165 Wash. 663, 5 P.2d 1029; In re Simpson's Estate, 169 Wash. 419, 14 P.2d 1; Bond v. Werley, 175 Wash. 659, 28 P.2d 318; Gaskill v. Amadon, 179 Wash. 375, 38 P.2d 229; Yakima First Nat. Bank v. Pettibone, 182 Wash. 663, 47 P.2d 997; Burgin v. Universal Credit Co., 2 Wash.2d 364, 98 P.2d 291. Appellant further contends that it was clearly established by the evidence that respondent failed to call a number of witnesses who were presumptively under its control and who might have testified to material facts in the case, and that therefore the instruction was properly given.

Before discussing the evidence in this case, let us look at the cases above cited, and some general authority and authority from other jurisdictions, in an endeavor to determine the purpose of the rule here sought to be invoked, and the scope of the rule.

The Glasgow, Lenover, Bank of Chewelah, Bond and Yakima First Nat. Bank cases, supra, were tried to the court without a jury. In none of them, except the Bond case, is the word 'presumption' used in connection with the failure of a witness to testify, but in each case a statement is made similar to the following statement in Glasgow v. Nicholls, supra [124 Wash. 281, 214 P. 169, 35 A.L.R. 419]: 'Nicholls [a party to the action] was not offered as a witness, and this fact properly gives rise to an inference that if he had been called and had testified to the truth his contention would not have been aided thereby.' (Italics ours.)

In all the cases cited by appellant, the rule was applied only where the one who failed to testify was a party to the action, or an almost indispensable witness to the transaction which gave rise to the controversy. In none of the cited cases was there a situation such as presented in the instant case, where the one against whom the rule is invoked had called witnesses to meet all the issues raised by appellant, but who, according to appellant, had failed to call other witnesses who might also have testified to the condition which gave rise to the controversy.

The reason for the rule is stated in 10 R.C.L. 884, § 32, as follows: 'The conduct of a party to a cause may be of the highest importance in determining whether the cause of action in which he is plaintiff, or the ground of defense if he is defendant, is honest and just; just as it is evidence against a prisoner that he has said one thing at one time and another at another, as showing that the recourse to falsehood leads fairly to an inference of guilt. Anything from which such an inference can be drawn is cogent and important evidence with a view to the issue. And so it has become a well established rule that where evidence which would properly be part of a case is within the control of the party whose interest it would naturally be to produce it, and, without satisfactory explanation, he fails to do so,--the jury may draw an inference that it would be unfavorable to him. * * * It has been said to be an inference of fact, not a presumption of law. However this may be, it is not substantive proof, and cannot supersede the necessity of other evidence on behalf of the party for whose benefit the presumption is to be made.'

In the same volume, at p. 886, § 33, we find this further statement: 'The presumption arising from a failure to call a witness applies only to witnesses who are 'in the power of the party,' as it is expressed, which means at hand and subject to a subpoena, and whose testimony would not be trivial, or to be classed as merely cumulative, but important and necessary.'

And at p. 890, § 38, the volume states: 'Where the nonproduction of evidence in a jury case occurs under such circumstances that the judge, if trying the case without a jury, would deem himself justified in drawing an adverse inference from the failure to produce the evidence, the practice is not to charge the jury that there is a presumption against the party, but to instruct that the jury are at liberty to draw an unfavorable inference against the party if they think it warranted under all the circumstances. The use of the term '...