Bennett v. City of Seattle

I am unable to agree with the majority opinion. The fact that an injury occurred is no occasion to hold the appellant responsible. I sympathize with anyone who has been injured, however the questions to be determined are ones of law and call for the application of strict legal principles to the determination of these problems. I feel that we should bring to bear a judgment that is cool, calculating, fearless, and deliberate, uninfluenced by any emotion of sympathy, untrammeled by any anxiety of fear as to the result. It is on this foundation that I discuss the problems presented for consideration in this case.

The majority concede that the highway upon which the accident occurred is a public highway and it did not cease to be such in the sense "that the public easement was extinguished or that it was abandoned by the public or the municipality, or that the municipality or the county or state lost or surrendered jurisdiction over it." No reason is given for holding that the state retained jurisdiction over the highway for some purposes, but surrendered it for other purposes.

I am unable to ascertain any good reason for extending to the users of the highway an exemption from obedience to the rules of the road which should govern all who use it. The question is: Did the state lose or surrender the right to enforce the rules of the road when the Federal government, by force and without sanction of any statute, state or Federal, closed the highway to all traffic except to those persons working at the Boeing plant?

It is quite evident that Mrs. Bennett was guilty of contributory negligence in walking in a northerly direction on the right side of the highway if the laws of this state were in operation at the time she was injured. This statement is borne out by the following cases: Benson v. Anderson, 129 Wn. 19,223 P. 1063; Keller v. Breneman, 153 Wn. 208, 279 P. 588, 67 A.L.R. 92; Turner v. Good, 167 Wn. 27, 8 P.2d 414;Steen v. Hedstrom, 189 Wn. 75, 63 P.2d 507; Flaumer v.Samuels, 4 Wn.2d 609, 104 P.2d 484.

There are no provisions in our constitution or statutes which provide that any law of this state may be set aside or temporarily suspended or repealed by an act other than that of the legislature.

There are certain principles or rules announced which aid us in arriving at the conclusion that the taking over of state property does not suspend the laws governing that property.

A case bearing upon the question as to continued jurisdiction of the state is Ryan v. State, 188 Wn. 115, 61 P.2d 1276. In that case it appears that two actions were involved; one for the refund of money paid as an occupation tax, and, second, for an injunction to prevent further collections of the tax. In this case we laid down the rule as to how lands within the jurisdiction of the state may become subject to the exclusive jurisdiction of the Federal government. The rule is as follows:

"(1) When the land is acquired for one of the purposes within Art. I, § 8, clause 17 [of the Federal Constitution], by purchase with consent of the state, Federal jurisdiction is exclusive in such area for all purposes; (2) when the land is acquired for one of the purposes within that clause, but other than by purchase with the consent of the state, then Federal jurisdiction is exclusive only to the extent of the purposes for which the land is held; (3) when the land is acquired for a purpose not within that clause, but by purchase with the consent of the state, then the United States has such jurisdiction over the land as may be ceded to it by the state; and (4) when the land is acquired for a purpose not within that clause, in any manner other than by purchase with the consent of the state, then the United States holds the land just as any other proprietor does, except that the land may not be taxed by the state."

That case, Ryan v. State, supra, and the case of Mason, Inc.v. State Tax Commission, 188 Wn. 98, 61 P.2d 1269, were appealed to the United States supreme court, and in an opinion in the consolidated cases, Silas Mason Co. v. Tax Commission,302 U.S. 186, 82 L.Ed. 187, 58 S.Ct. 233, were affirmed. In passing upon the questions presented, the supreme court used the following language:

"These contracts with appellants were made in full appreciation of the inevitable creation, through the carrying out of this project, of a large local community within the area acquired by the United States, with residents whose needs could be suitably served by the administration of the laws of the State without interfering in any way with the execution of the federal plan. School facilities were to be, and have been, provided by arrangements with the local authorities. Police protection was to be, and has been, assured by co-operation with the State Patrol. Cognizance of crimes committed within the area has been taken by local prosecutors and judicial officers. It is futile to say that these local authorities became federal authorities pro hac vice, for the contracts which have been ratified by Congress manifestly contemplated action by the local officers as representatives of the State and as acting in the exercise of state jurisdiction.

"Our conclusion is that the State had territorial jurisdiction to impose the tax upon appellants' receipts and that the tax does not lay an unconstitutional burden upon the Federal Government."

State ex rel. Grays Harbor Const. Co. v. Department of Labor Industries, 167 Wn. 507, 10 P.2d 213, involved the question as to whether the workmen's compensation act of this state was in force within the boundaries of Rainier national park. This court reviewed the history of the acts relating to the formation of the park and the passage of our compensation act, and called attention to the fact that this state had not ceded jurisdiction of the land within the park until five years after the passage of the industrial insurance act. The jurisdiction of the Federal government was acquired through consent of the state. After citing quotations from other authorities, we stated:

"From the authorities cited and the excerpts from two of them quoted, it follows that, the workmen's compensation act having been in force within the territorial boundaries of Rainier national park at the time jurisdiction thereof was ceded to the United States, the act remained in force until Congress passed an act which superseded it. Up to the present time, no act of Congress has been passed which is in any respect inconsistent with the operation of the workmen's compensation act over the park."

In passing, it is proper to call attention to the case ofMurray v. Gerrick Co., 172 Wn. 365, 20 P.2d 591. The same case is 291 U.S. 315, 78 L.Ed. 821, 54 S.Ct. 432, 92 A.L.R. 1259, in which it was held that our insurance act did not extend to the Puget Sound navy yard. Our decision and that of the United States supreme court were grounded upon the fact that the compensation act was adopted many years after this state had surrendered its jurisdiction over the property acquired by the navy.

In Neah Bay Fish Co. v. Krummel, 3 Wn.2d 570,101 P.2d 600, this court had before it the question of whether the state could collect the sales tax upon firms doing business within the Makah Indian reservation under authority and license from the commissioner of Indian affairs. The business was done with, and sales made to, persons other than Indians. This court held that, although the United States government had exclusive control of the Indians and their reservation, this state had the right to impose a tax. In considering the question, we had occasion to refer to the case of Draper v. United States, 164 U.S. 240,41 L.Ed. 419, 17 S.Ct. 107. That case has such a close bearing upon this one by analogy that I quote what was said of it in theKrummel case:

"In Draper v. United States, 164 U.S. 240, 41 L.Ed. 419,17 S.Ct. 107, the plaintiff in error had been indicted, tried, convicted, and sentenced to death by the circuit court of the United States for the district of Montana, for the crime of murder, alleged to have been committed on the Crow Indian reservation. He moved to arrest the judgment on the ground that the Federal court had no jurisdiction to try an offense committed on the Crow reservation by other than an Indian, as such crime was exclusively punishable by the proper court of the state of Montana. The lower court refused to arrest the judgment, and an appeal was taken to the supreme court.

"The treaty creating the Crow reservation, made after the organization of Montana territory, contained no stipulation restricting the power of the United States to include the land embraced within the reservation in any state or territory then existing, or which might thereafter be created, the stipulation being that the reservation should be

"``. . . set apart for the absolute and undisturbed use and occupation of the Indians herein named . . .; and the United States now solemnly agrees that no persons, except those herein designated and authorized so to do, and except such officers, agents, and employees of the government as may be authorized to enter upon Indian reservations in discharge of duties enjoined by law, shall ever be permitted to pass over, settle upon, or reside in the territory described in this article for use of said Indians . . .' (15 Stat. 649, 650.)

"The court stated the question to be:

"``Has the State of Montana jurisdiction over offenses committed within its geographical boundaries by persons not Indians or against Indians, or did the enabling act deprive the courts of the State of such jurisdiction of all offences committed on the Crow Indian reservation, thereby divesting the State pro tanto of equal authority and jurisdiction over its citizens, usually enjoyed by the other States of the Union?'

"Chief Justice White, after reviewing the course of congressional legislation on the subject, stated that, whenever, upon the admission of a state into the Union, Congress had intended to except out of it an Indian reservation, or the sole and exclusive jurisdiction over that reservation, it has done so by express words, and continues:

"``As equality of statehood is the rule, the words relied on here to create an exception cannot be construed as doing so, if, by any reasonable meaning, they can be otherwise treated. The mere reservation of jurisdiction and control by the United States of "Indian lands" does not of necessity signify a retention of jurisdiction in the United States to punish all offenses committed on such lands by others than Indians or against Indians. It is argued that as the first portion of the section in which the language relied on is found, disclaims all right and title of the State to "the unappropriated public lands lying within the boundaries thereof and of all lands lying within said limits, owned or held by an Indian or Indian tribes, and until the title thereof shall be extinguished by the United States, the same shall be and remain subject to the disposition of the United States," therefore the subsequent words "and said lands shall remain under the absolute jurisdiction and control of the United States," are rendered purely tautological and meaningless, unless they signify something more than the reservation of authority of the United States over the lands themselves and the title thereto. This argument overlooks not only the particular action of Congress as to the Crow reservation, but also the state of the general law of the United States, as to Indian reservations, at the time of the admission of Montana into the Union.'

"Holding that the state courts had exclusive jurisdiction of the trial of an offense committed on the reservation by a non-Indian upon a non-Indian, the opinion concludes:

"``It follows that a proper appreciation of the legislation as to Indians existing at the time of the passage of the enabling act by which the State of Montana was admitted into the Union adequately explains the use of the words relied upon and demonstrates that in reserving to the United States jurisdiction and control over Indian lands it was not intended to deprive that State of power to punish for crimes committed on a reservation or Indian lands by other than Indians or against Indians, and that a consideration of the whole subject fully answers the argument that the language used in the enabling act becomes meaningless unless it be construed as depriving the State of authority to it belonging in virtue of its existence as an equal member of the Union.'"

From these decisions we find that the state has jurisdiction over the lands within its borders which belong to the Federal government in civil and criminal actions, unless the state has ceded its jurisdiction to the Federal government.

In this case it is not shown that the state of Washington surrendered its jurisdiction over the highway upon which the accident occurred. It follows that the rules of the road adopted by our legislature were in full force and effect at the time Mrs. Bennett was injured, and that she was guilty of contributory negligence as a matter of law.

The majority opinion is not consistent in that it holds that the state would have the right to punish an offender for violation of state laws and, at the same time, it says that those laws are not applicable when considered in a civil action. A most unusual situation would occur if a driver of an automobile exceeded the speed limit in the closed area and injured someone in so doing. Under the majority holding the driver could be punished in a criminal action, but his violation of the law could not be held negligent per se, thereby setting aside another one of our well-recognized rules.

The majority holds that the court committed error in not allowing the introduction of evidence relating to an exclamation made by a disinterested witness at the time the accident occurred. I agree with this holding, Britton v. Washington WaterPower Co., 59 Wn. 440, 110 P. 20, 140 Am. St. 858, 33 L.R.A. (N.S.) 109; Heg v. Mullen, 115 Wn. 252,197 P. 51; State v. Goodwin, 119 Wn. 135,204 P. 769, but disagree with the statement of the majority that this error was not reversible.

The majority holding, being based on the theory that the introduction of the evidence "probably would not have changed the result," to justify the startling new idea of guessing what a jury would do, have cited several cases. I call attention to the holding in those cases. The only reference made to the admission of evidence in Brown v. Seattle, 57 Wn. 314, 106 P. 1113, was:

"The second contention is that certain evidence offered on behalf of the appellants at the hearing in the superior court was improperly excluded, but we do not find that the record sustains this contention; the evidence offered, it is true, was excluded when first presented, but the court subsequently permitted it to be introduced. If any error was committed in excluding it when first offered, the error was cured by its subsequent admission."

In Gasof v. Standard Ice Co., 71 Wn. 537, 129 P. 101, the only reference to error concerning evidence concerned the admission of a building permit given by the city to one of the defendants. This court held the permit admissible as a circumstance tending to show notice.

Seattle, P.A. L.C.R. v. Land, 81 Wn. 206, 142 P. 680, was a condemnation proceeding tried to the court without a jury. An offer of proof was made relative to the commercial value of sand and gravel on the property condemned. An offer of proof was made by the owner of the property and the court allowed certain evidence to be introduced. In passing, this court stated: "The testimony admitted covered everything included in the offer."

The only other evidence related to the disputed value of the property taken and the effect the taking had upon the balance remaining to the owner.

The case of Shilliam v. Newman, 94 Wn. 637, 162 P. 977, involved an action for personal injuries. The trial court refused to admit a written instrument signed by plaintiff which was in the nature of a release. This court held that the error, if any, was cured by the admission of evidence contained in the written instrument, "and the rejection of the written declaration cannot be held to prejudice appellants."

Bredemeyer v. Johnson, 179 Wn. 225, 36 P.2d 1062, was a personal injury case. The only reference to error predicated upon a rule concerning admission of evidence is contained in the following excerpt from the opinion:

"On cross-examination of respondent, the court sustained an objection to the following question: ``Supposing you were making a turn, how much shorter could you make a turn when he (the passenger) was not on there?' The question was pertinent to the issues, but we do not think the ruling was prejudicial, because the subject was later gone into. The court, subsequent to the ruling complained of, said:

"``If the presence of this boy on the seat with the driver interfered with the operation of the car and was in any way a contributing cause of the accident it would be proper to show that if you can do so.'

"Pursuant to this observation, respondent was permitted to answer (among others of a similar import) the following question:

"``How much effect did the fact that you had this boy right on the seat with you, how much effect did it have on your turn that you attempted to make to avoid the collision?'"

It will be seen that the cases in no way sustain the statement made by the majority. In none of them is there even a suspicion of a holding that the exclusion of admissible evidence would "probably" have not changed the verdict.

In Britton v. Washington Water Power Co., supra, this court reversed a judgment on the ground that the trial court refused to allow the admission of evidence which consisted of an exclamation made by a bystander at the time the accident occurred. In that case action was instituted to collect for personal injuries suffered when it was charged that a boy was kicked from a train by a conductor. The situation and ruling are shown by the following quotation from the opinion:

"One of the respondent's witnesses upon direct examination stated that, when the boy was observed riding upon the step, the conductor pulled the bell cord and started to open the door, when someone said, ``The boy is off!' This statement was stricken on motion of the respondent. The boy testified that, when he got onto the step, the door was closed, and that the conductor opened the car door and kicked him off. The appellant insisted at the time the statement was stricken, and insists here, that it was admissible as a part of the res gestae. The learned trial court, however, ruled that it was inadmissible. In this, we think, he committed prejudicial error. . . . The exclamation was so clearly a part of the res gestae, and so vitally affected the issue to which it referred, that its rejection was highly prejudicial."

The above case is exactly in point. Rarely do we find cases where the factual situations are so entirely alike as they are in the cited case and the one at bar. The Britton case has never been overruled or distinguished. It is the law of this state and should govern the present case in so far as the introduction of evidence is concerned.

Another important phase of this case is the majority's dependence upon Rem. Rev. Stat., § 307 and § 1752, in which this court has been directed to decide cases in a certain way. Our state constitution provides for three independent departments of our state government, the legislative, the executive, and the judicial. There is no part or portion of the constitution which gives the legislature the right or power to compel the courts of this state to follow a legislative rule in deciding cases. Therefore, the legislature does not have the power to indicate or direct the manner in which cases in the court shall be decided.Kilbourn v. Thompson, 103 U.S. 168, 26 L.Ed. 377; Blanchard v.Golden Age Brewing Co., 188 Wn. 396, 63 P.2d 397.

The majority opinion is evidently written to follow what is now known as the "modern trend," concerning which the California court, in Guild v. Brown, 115 Cal.App. 374, 1 P.2d 528, stated:

"It seems to be taken for granted in these times that the main thing in every case of accident is to find some one able to respond to the claim of damage. And following this out the ancient doctrines of the law have been twisted and distorted in an endeavor to dole out damages to every unfortunate person injured, regardless of the true principles upon which liability rests."

This case should be reversed and dismissed on the ground that the respondent was guilty of contributory negligence. In any event, it should be sent back for a new trial.

MILLARD and JEFFERS, JJ., concur with SIMPSON, J.