Valentine v. Malone

I regret that I am unable to agree with the opinion of Mr. Justice POTTER. The question on which we differ pertains to observations made by the trial judge at the scene of the accident, in the absence of the parties and their counsel. I feel that Elston v. McGlauflin, 79 Wn. 355 (140 P. 396, Ann. Cas. 1916 A, 255), and Denver Omnibus Cab Co. v. J. R.Ward Auction Co., 47 Col. 446 (107 P. 1073, 19 Ann. Cas. 577), which are cited to support his conclusions, are contrary to the weight of authority, which is well expressed in 64 C. J. pp. 1200-1202, §§ 1005-1007, inclusive, from which I quote in part:

"On the trial of a cause by the court without a jury, it has very generally been held that the judge trying the case may, in the exercise of his discretion, inspect material objects, or view premises in dispute or premises where facts material to the cause have occurred. While this power has sometimes been expressly conferred by statute, no statutory authority is necessary to the exercise thereof. The power may be exercised on the request of either or both of the parties, or upon the judge's own motion. * * *

"A view or inspection of the character under consideration is, of course, permissible for the purpose of enabling the court properly to understand the evidence, and properly to apply it; and in many jurisdictions this is the only purpose for which a view or inspection is permissible. It cannot be considered as evidence or have the effect of supplying evidence independent of, or in addition to, that taken in the course of the trial, nor meet the requirement that proof of necessary facts be made. On the other hand, it has been held in some jurisdictions that the facts ascertained by a view are to be considered as in evidence and given due weight in reaching a conclusion. But impressions made on the judge by his own inspection of premises are entitled to little, if any, weight in a matter involving special knowledge and experience and as to which experts differ, and do not dispense with proof of matters requiring expert skill and knowledge. And it has further been held that a judgment cannot be sustained where a finding is based on inspection alone, unsupported by other evidence.

"The inspection or view as a matter of judicial propriety should be in the presence of the parties, or their attorneys, or they should be given an opportunity to be present, and the inspection 'reduced to form.' "

The better authority, I think, is as follows:

"A judge when taking a view, acts simply as a trier of facts; — he is pro hac vice the jury." Carpenter v. Carpenter,78 N.H. 440, 448 (101 A. 628, L.R.A. 1917 F, 974).

An inspection of the premises for the purpose of enabling the court to properly understand and apply the evidence is not error. Claesgens v. Animal Rescue League of Hennepin County,Inc., 173 Minn. 61 (216 N.W. 535).

"No good reason has been shown why a trial judge may not, in a proper case, go outside of a courtroom and view an object that from its nature will not admit of its being brought into court." Mason v. Braught, 33 S.D. 559 (146 N.W. 687).

Nor is the determination of my Brother POTTER, in my opinion, in accord with the law as established by our own decisions.

Morse v. Blanchard, 117 Mich. 37, was an action on a promissory note, tried without a jury. It was conceded that the word "two" and the word "one" had been written in the note. It was a question which was written first. We there said:

"It is urged as error that the judge, after the submission of the case, made a microscopical examination, in order to determine which word was written first. Whether the court made such examination does not appear. If he did, he committed no error. Judges and jurors have the right to the most critical examination in such cases, and to use magnifying glasses for that purpose."

McCamman v. Davis, 162 Mich. 435, was an action in equity for the partitioning of certain real estate. The complainants testified that the property would, in their opinion, bring a higher price if sold as one parcel than it would if divided into three or more parcels. The defendant offered no testimony. The court decreed a sale in three parcels. In answering defendant's contention that under the proofs the court could do nothing but decree a sale en masse, Mr. Justice BROOKE, speaking for the court, after commenting upon the absence of proof on the part of defendant, said:

"It may be that he relied upon the knowledge of the court as to the situation. It is elementary that the court must base its decree upon testimony given in open court. Knowledge gained by a view of the premises might, with propriety, be used to determine which of two methods of sale should be adopted, where both are supported by proofs; but such knowledge cannot alone be made the basis of a decree."

In passing upon the right of the accused in a criminal case to be present when the scene of the crime was viewed by the jury, Mr. Justice Cardozo in Snyder v. Massachusetts,291 U.S. 97 (54 Sup. Ct. 330, 90 A.L.R. 575), cited our decision inPeople v. Auerbach, 176 Mich. 23 (Ann. Cas. 1915 B, 557), as authority for upholding the privilege of the accused to be present if due demand is made. We there said:

"The matter of the view of the place where an alleged crime has been committed seems to be discretionary with the court. The question whether the purpose of the view is to furnish new evidence, or to enable the jurors to comprehend more clearly by the aid of visible objects the evidence already received, is one upon which the courts seem to be divided; the better doctrine being the latter of the above propositions."

I can see a distinction between the viewing of moving objects or apparatus such as traffic signals, and the viewing of the place of the accident.

I do not subscribe to the discussion of the effect of the rule and the question of appellate jurisdiction.

I therefore concur only in the result.

NELSON SHARPE, C.J., and NORTH and EDWARD M. SHARPE, JJ., concurred with BUSHNELL, J.