Jacqueline's Washington, Inc. v. Mercantile Stores Co.

784

question application the doctrine res ipsa loqui- tur was consider, the trial court. We will not presented as a for reversal of the trial ground court, theory the time of trial. Matthias v. Lehn Fink & presented Corp., Prods. v. 70 Wn.2d P.2d 284 (1967); Spinelli Stations, Inc., Economy Wn.2d P.2d The court found the evidence was insufficient show of water freezing pipes premises which resulted in appellants’ goods was the result on or negligence part respondents, respondents The finding notice the defect. has prior support record and the whether question exculpatory clause of the lease is valid will not be inasmuch considered have failed to show breach appellants any duty by to appellants. respondents error fact to which remaining findings assigned

are the record. Judgment affirmed. supported 29, 1972.] En 42012. Banc. June

[No. Petitioner, Jacqueline’s Washington, Inc., al., et Respondents. Inc., Mercantile Stores Nashem, Prediletto & Fortier and Mark Fortier, R. for petitioner. Mays

Gavin, Robinson, Kendrick, Redman & and Wil- Mays, respondents. H. liam appeals J. Plaintiff from a dismissal its claim Neill, damage high

for smoke to its stock of women’s fashion apparel adjoining occasioned a fire in defendants’ store. sitting jury, court, The trial without a found in favor of liability on the issue of but dismissed the action prejudice, finding had failed to establish damages certainty permit the amount of with sufficient an award. appeal Appeals presented

Plaintiff’s the Court of single issue of whether the evidence before the trial court require damages. sufficient award substantial Appeals Jacqueline’s Washington, The Court of affirmed. App. Co., 4 Inc. v. Mercantile Stores 484 P.2d 445 Wn. granted (1971). (1971). 79Wn.2d 1008 We review. It clear from the record that suffered substan- damage. liability for loss has been tial Defendants’ such unchallenged findings and conclusions established trial court. seeks to recover the difference Plaintiff damaged net value of the merchan- between the wholesale immediately the fire and net wholesale dise before immediately This of the merchandise value thereafter. generally 3 L. is not in issue. See measure 3.05(7) Injury, § Friedman, Personal Frumer & M. Terry, Mock v. 251 Ore. 446 P.2d damage Although has been the fact substantial proof. The value of established, amount is difficult exclusively is almost the merchandise after opinion. such often that in matter of We have observed uncertainty as to the ex where there is circumstances, recovery damages causation, as to of or istence substantial merely is to denied because of be substantial or thereof be ascertained with the extent cannot provided precision, is sufficient the evidence mathematical E.g., estimating for loss. afford a reasonable basis to Reefer Design 774, Co., Queen Marine Constr. & 73 Wn.2d Co. v. (1968); Sigman Stevens-Norton, Inc., 70 v. 440 448 P.2d (1967); Brear Klinker & v. Sand 915, 425 P.2d 891 Wn.2d (1962); & 374 Wenzler Co., 443, P.2d 370 60 Wn.2d Gravel Heating Plumbing 330 Sellen, & Co. v. Wn.2d Ward (1958); Co., 43 Inv. Wn.2d Gilmartin Stevens P.2d 1068 P.2d 800 73, 289, 261P.2d is “suffi of evidence whether

The determination estimating loss” for must reasonable basis afford cient to Important particular con upon depend circumstances. exceedingly re first, are, courts should be siderations plaintiffs for dismiss and immunize defendants luctant to purpose require of reason; second, that and, such attempt spare onus an fact the the trier ment speculation conjecture by damages solely and assess probative issue. benefit without produced the have We said that must have B. & B. best evidence under the circumstances. available Farms, Farms, Inc., Inc. v. Matlock’s Fruit Wn.2d 437 P.2d 178 Brear v. Klinker Sand & Gravel supra. opinion testi- Plaintiff’s consisted mony manager store the fire. The at the time of years’ manager experience apparel mer- in women’s chandising manager plaintiff’s and had been for several years. suggest Defendants that there was better evidence available to in that could have undertaken price to introduce evidence based received damaged apparel subsequent agree aat “fire sale.” We Appeals gives the Court of and trial court that such basis very reliable indication actual smoke loss. There is relationship price little between the received at a retail sale goods several months later and the wholesale value of the immediately following the fire. In the absence of a whole- damaged sale sale of the merchandise, much of which is seasonable, near loss, the time of the the best available pertaining directly the wholesale value damage, opinion merchandise after the evidence such by plaintiff. as that introduced manager expressed expert opinion

Plaintiff’s his that the inventory per wholesale value of had been reduced 50 by cent Subsequently, reason of the fire. book- keeper inventory testified that the wholesale value of the During before the fire was $22,668.30. cross-examination contradictory this witness, two exhibits of the cumulative testimony effect were introduced defendants accepted into evidence These court. consisted plaintiff’s presi- accountant’s written of statement loss and setting dent’s sworn statement of of amount loss damage respectively. $7,263.85 $8,964.92, amount of at contradictory These are not in exhibits themselves as one items in the other. contains not included accepted testimony plaintiff’s of The trial court wit- inventory value of ness to the wholesale as before the plaintiff’s manager chose to However, it disbelieve fire. 788 court of suffered. The concluded that

to the extent from it not sufficient evidence which could deter- there was damage compensable plaintiff. mine the In reaching conclusion, the court to consider the refused damage, stating except amounts defense exhibits lower impeachment. purposes of for general impeaching that, as rule,

It is true evi credibility of the witness dence affects encompassed incompetent prove substantive facts Washington E.g., Co-op, v. Canners 50 Hurst Wn.2d therein. (1957). Hurst involved a fact situation in 314 651 P.2d prior impeaching inconsistent matter was a which the placed not witness, statement was statement page 733: there stated in evidence. We plaintiff] [during [Ajppellant did cross-examination of [plaintiff] [ap- witness; that it make Mrs. Hurst not deposition pellant] only in but did introduce the impeachment purposes, and not to used facts contained therein. the substantive type in the case at evidence submitted We think general exception rule. for an calls bench by defendants were not in exhibits introduced plaintiff’s prior wit- inconsistent statements nature partiality, these exhibits to indicate Nor do nesses. tend qualities incapacity in the other lack testimonial wit- or impeachment tool, the sole value of these nesses. As an testimony they contradict substantive is that exhibits viz., issue, the extent on fact witnesses merely damage. of re- exhibits are items sense these impeachment items are form. Such within buttal generally impeachment category See contradiction. Wigmore Evidence, on ch. 35 Chadboum, 3A J. H. § Practice, Meisenholder, Evidence Law and Wash. Prac. R. (1965). (see by prior impeachment inconsistent statement Unlike 296), impeachment supra, §§ 291, mere Meisenholder, any hearsay exception to the is not within contradiction Dobro, Anderson Wn.2d rule. P.2d objection no to exhibits; Plaintiff has raised defendants’ introducing any exhibits, defendants, have waived objection; hearsay e.g., See, so there is issue before us. Carraway (1963); Johnson, 212, v. Wn.2d P.2d 420 Campbell, Inc., W. W. Conner Co. v. McCollister & 9 Wn.2d 407, 115 P.2d To admissible, be such extrinsic independently competent evidence must be and must be purpose attacking admissible for a other than that of credibility E.g., Oswalt, the witness. State v. 62 Wn.2d supra, § 118, 381 P.2d 617 see Meisenholder, 304 at 283 and cases there cited. The substantive facts contained (variant in those exhibits statements as to amount of dam- age sustained) independent have direct and relevance ato material fact in issue. For this reason the evidence was properly impeachment by before the court in form of contradiction. very characteristics which rendered the defendants’ indepen i.e., admissible trial,

exhibits their nature as dently competent, against reliable, material and militate applying general (Hurst Washing rule of limited use Co-op, supra) Having ton Canners to those exhibits. estab letting prerequisite lished these characteristics as a to incongruous require pro in, would be that the ignored. bative value of the evidence be We hold, therefore, properly impeach that evidence admitted mere contra exception general diction constitutes an to the rule is encompassed the substantive facts' such evidence. light determination, of this the record before us con

tains sufficient the best sort available under circumstances, to afford a reasonable basis for estimat ing Camp See W. W. Conner the loss. Co. v. McCollister & supra; supra, § very bell, Inc., Meisenholder, 386. At the judgment support least, this would in the lowest computable from the amount evidence. Plaintiff is not to be recovery merely precise denied substantial because the incapable E.g., is exact ascertainment. supra. Brear v. Klinker Sand & Gravel A more strin- principle gent contrary requirement to the basic be would quoted & operative in Wenzler cases, these Heating Plumbing Wn.2d Sellen, 53 Ward & Co. v. (1958): 330 P.2d 1068 elementary conceptions justice public “The of 'and most require wrongdoer policy shall bear the of that the risk wrong uncertainty has created. his own “ tendency to find of courts is some ‘The constant wrong damages way awarded where can be in which longer Difficulty is no of ascertainment done.

has been recovery’ proven right invasion of with confused [Bigelow rights.....” v. RKO Radio plaintiff’s Ct. Ed. 66 S. 251, 90 L. Inc., 327 U.S. Pictures, (1946).]

Accordingly, judgment reversed of the trial court is issue of new trial on the remanded for a the cause and damages. C.J., Wright, Finley, Stafford, and

Hamilton, Hale, JJ., concur. (dissenting) agree J. cannot with the ma-

Rosellini, —I jority Appeals court Court of should that the trial and the appears to me to be a classic be reversed. This case Having goods damaged proof. within its con- failure of independent appraisal opportunity to obtain an trol and the plaintiff chose not to loss, obtain such of the amount testimony relied its own em- evidence but quite justifiably ployee, trial court found uncon- which the vincing. found: there is no credible evidence

The trial court resulting damage It stock. con- cluded from which the is insufficient court [t]here certainty reasonable the amount determine can diminution plaintiff’s merchandise as a result of value any negligence and no other

of defendant’s plaintiff. damage to following governs agreed that the rule parties damages:

measure Ordinarily, damages measure of is the retail mar- property immediately damage ket value of the before the immediately occurs, thereafter. However, where property part owned dealer and is his stock in trade, the measure of is the difference between plus delivery charges, immediately value, the wholesale (wholesale) before value occurred and the market immediately property damaged. after the (Footnote omitted.) 3 L. Frumer & Friedman, M. Personal Injury: Actions-Defenses-Damages p. § 3.05, acknowledged very

As this court in the liberal case of Gilmartin v. Stevens Inv. P.2d 73, 43 Wn.2d (1953), certainty” 266 P.2d 800 what is de- “reasonable pends largely particular damage on the extent to which the susceptible proof. in issue is of accurate We said in that proper case proving that the method of difference opinion testimony given by market value is values, as to express opinion subject. witnesses say, opinion expert Needless to the aof disinterested is more to be “expert.” valued than that of an interested One expert latter, the if its witness indeed was at all the on subject smoke-damaged of wholesale market value of mer- plaintiff chandise, was all that the offered in this case. On manager many years score, this it was shown that the experience merchandising, in but there was no evidence that he familiar with the market was values of smoke-dam- aged clothing any experience evaluating or had had in such damage. majority recognizes

The that the trial court was entitled testimony to discredit the of this witness but finds that it considering in error in not was as substantive by proof statement the accountant and a of loss upon statement. based that present at

The was not the accountant trial for cross-ex- computing upon method of amination his the loss which is figures, or the source his I stated therein but think we safely may that he obtained from assume way figures knowing he We have no used. which what thought used, he so that even if measure we is of loss, that his statement evidence the fact question on it is not be relevant of the differ- shown to ence market value merchandise before and after in damage. the smoke only hearsay, is

I examined statement. Not it have explanation by person prepared it, it who without but unintelligible. best, is At it shows the basis proof to some insurer was of loss submitted only purpose, prepared. I assume, for this It was offered only prior proof offered inconsistent of loss was show a good part plaintiff. all on the That was it was claim self-serving of the law could that Under stretch for. the amount declaration be used as substantive majority blandly plaintiff. Yet the of loss sustained the. only acceptable evidence, but it was that not states support an court needed to award all the the trial the claim! in the full amount of holding logical progression step from this in the next The needs to do to his all that a be that must copy complaint. of his in evidence a is introduce case general policy insurance, action Even in an merely proof can introduce loss insured rule is that the showing policy, compliance purpose, of for the therein 3 Richards of the facts stated. as evidence 1952); (5th § §§ Insurance ed. C.J.S. on Insurance § Insurance 2d 44 Am. Jur. 1340-1341 encyclopedia it has states that been said latter stated, proofs of the facts therein are evidence of loss against However, the insured. of as well favor Higgenbotham, Insurance Co. v. footnote case cited reading A of that case 24 L. Ed. 499 380, 95 U.S. holding of Insurance the court affirmed show that the will (22 Wall.) (1874), 32, 22 L. Ed. 793 Newton, 89 U.S. Co. v. presented proofs preliminary to an insur- that which was policy compliance of its company the condition with in ance prima evidence of the facie admissible are insurance against on the insured and behalf therein, facts stated company. the authority holding obviously

I have found no these that self-serving in declarations can introduced be the insured to truth the statements he which majority’s holding made therein. a The claim set forth that contrary proof support in such a loss will a verdict general holdings rule, to the of this but to court question majority opin- where the has come The before it. ion cite, does not I find, and have not been able to recent upon subject. my case However, the cases two which complete research uncovered are in has accord with general proof rule that contained in are statements loss not substantive evidence. Publishing

Cascade Fire & Marine Co. Ins. v. Journal (1890), upon Co., 1 Wash. 25 P. 331 an action was policy plaintiff neglected of fire in insurance which the had concerning offer the amount just plaintiff loss, as the case, did in case. In that as in proof plaintiff this, the loss had submitted to company upon was admitted in evidence cross-exami- plaintiff’s nation of a witness. There it was for the admitted purpose showing the date it which was submitted. proof

Here the was offered to show that president prior had made a statement of the amount loss which was inconsistent with its witness’ statement at trial.

This court that case said: paragraph complaint alleged The seventh of the loss to have exceeded $1,000, and it for the was allegation competent proof. sustain that We doubt proof proof whether the of loss intended to was be introduced, value, it if when was and even it had been purpose. proof could served no have such of value having jury. been omitted there no case for the Wash, 456. Hennessy Niagara Fire Ins. Wash. P. (1894), it was held that in an action on a fire insurance policy, proofs of loss were admissible to show that the complied policy with the terms of connection with the defense had sworn falsely therein. There that was contention that case proofs support been used to the claim of amount of loss. only proof self-serving declaration,

Not was the of loss a showing there is also no that therein was the “loss” claimed upon damaged based the reduction in market value of the way knowing upon merchandise. We evi- have no what prepared dence it the accountant who reached the conclu- sion that a loss in the amount claimed had been sustained. suppose upon have no it We reason that was based appraisal damage by competent of the fire disinterested self-serving, appraiser. hearsay, It is it is and its relevance shown, to the the court has been even issue before not might assuming competent it if that be considered it relevant. were my opinion, quite properly the trial declined court by evidence of a claim

consider this made market evidence of the reduction in wholesale fire. merchandise, occasioned value proof competent evidence was not Since loss court support judgment, evidence before manager, and relating that of to value was not was This find that credible. the court did not part The the court. of inspection an unreasonable evaluation on the manager random said that he made a apparel was higher-priced apparel. that such He stated had suf- if it merchandise difficult to than other more sell any damage had been that it all and concluded fered thinking obviously per He was cent. reduced in value Then, salability made statement. when he of retail taking the mer- that all of apparently, into account without being (some damaged equally of it chandise was figure He per of it. bins), applied to all cent that 50 he clothing; damage to the was no visible that there admitted garments He smelled of smoke. that the was cleaned before merchandise was none of the that testified clothing undamaged of- comminged with other prices comparably fered for sale at which were reduced upon damaged undamaged both the merchandise. majority apparently opinion judg- employee cursory ment of an based examination was the best evidence of reduction in value which the seems, plaintiff agree. could obtain. I It do not to me that plaintiff damage the appraised by could have had the appraiser commingled clothing disinterested before it the clothing impossible from other stores and made it for appraised. the defendant to have it

The trial court 'also took into that, account the fact shortly plaintiff after the fire, the had advertised the mer- per chandise for sale at a 10 cent reduction in the retail price. opinion, As the court stated in its memorandum even this evidence was not related to the wholesale value and determining was not usable in the reduction in that value. right The court also had the to consider the fact which opened was in evidence that the store as usual on the morning of fire, and continued to do business as usual until the first sale was held a week later. departed

This court has not heretofore from the rule that plaintiff must his with reasonable cer- tainty, they capable proof. insofar as are of such Common knowledge competent appraisers tells us that there are who apply expertise can their ap- and determine at least the proximate amount of from fire or smoke. In this plaintiff case, commingle allegedly itself chose to damaged merchandise with other merchandise it, and sell having independent appraisal. without obtained doing an In so, it ran risk a trier of the facts in a lawsuit against willing accept would not be to manager convincing proof estimate of of the amount of loss. given majority has a new twist to the rule of the produced

Gilmartin case, that if the has. the best damage, available and shown substantial an award some substantial amount must be made. The new appears plaintiffis produce any rule if to be that evi of damages,

dence bearing question credible, whether or court finds that evidence not the trial have been pro and whether or not could better evidence make trial count must duced with reasonable diligence, Furthermore, the rule an damages. award substantial must, make may, now that trial court and perhaps is shown in the the plaintiff award at least amount which there to from even though have claimed some third party, claim. be no evidence substantiate that rule relaxes just It does strike me as which not evidence within has the burden where the proof his means and control, opportunity own has the the amount evidence as to obtain disinterested and credible so also makes loss, his fails do but evidence upon defendant to obtain impossible question. witnesses had the court, the trial my opinion justified entirely heard the

before it and its burden had failed to sustain finding and that of the Court I affirm judgment would proof. Appeals. Rosellini, J.

Hunter, concurs J., 28, 1972. denied September rehearing Petition

Case Details

Case Name: Jacqueline's Washington, Inc. v. Mercantile Stores Co.

Court Name: Washington Supreme Court

Date Published: Jun 29, 1972

Citation: 498 P.2d 870

Docket Number: 42012

Court Abbreviation: Wash.