Breimon v. General Motors Corp.
8 Wash. App. 747, 1973 Wash. App. LEXIS 1502, 509 P.2d 398 (1973)
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Rule of Law:
The marital communication privilege, under RCW 5.60.060(1), presumptively protects communications made during marriage as confidential, and a former spouse cannot testify to circumstances (such as the alleged presence of a third party) that would render such communications non-confidential, as this would undermine the privilege's purpose.
Facts:
- Kurt Breimon purchased a 1967 Pontiac in Vancouver, Washington, in 1966.
- Breimon later received written advice from the manufacturer that the steering shaft might have been improperly installed and was instructed to contact a Pontiac dealer for repair.
- In January 1967, Breimon's car was serviced by a Pontiac dealer in North Dakota.
- On March 8, 1967, Breimon's 1967 Pontiac left the road in North Dakota, and he was thrown out, suffering permanent paraplegia.
- Breimon testified that just as the car began to slide on frost, the steering wheel caught, preventing him from steering out of the skid to prevent the crash.
- After the accident, Breimon allegedly told his then-wife in a hospital that he thought he had turned to spit out the car window, hit some ice, and went off the road.
Procedural Posture:
- Kurt Breimon sued General Motors Corporation in a trial court for breach of warranty and negligence in the design and construction of the steering mechanism.
- A jury in the trial court returned a $350,000 verdict in favor of Kurt Breimon.
- General Motors Corporation appealed the trial court's judgment to the Washington Supreme Court.
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Issue:
Does the marital communication privilege, under RCW 5.60.060(1), prevent a former spouse from testifying that a communication made by one spouse to the other during marriage was not confidential because a third party was allegedly present?
Opinions:
Majority - Callow, J.
Yes, the marital communication privilege, under RCW 5.60.060(1), prevents a former spouse from testifying that a communication made during marriage was not confidential due to the alleged presence of a third party. The purpose of the statute is to foster free and trusting communication between spouses, which would be undermined if a spouse feared future disclosure of "innermost secrets" due to a change in marital status. Marital communications are presumptively confidential, and divorce does not terminate the privilege for such communications. While third parties who overhear a conversation may testify, allowing the hearing spouse to establish non-confidentiality by claiming a third person was present would permit admissibility through "bootstrap testimony" and add a qualification to the statute that subverts its public policy. The court also affirmed the trial court's discretionary rulings: 1) excluding evidence of Breimon's prior driving habits and prior accident was proper as it was irrelevant to the cause of the instant accident and its prejudicial effect outweighed its probative value, raising collateral issues; 2) admitting evidence of a comparable skidding incident and expert experimental demonstrations was within discretion, as dissimilarities go to weight rather than admissibility if conditions are substantially similar; 3) counsel's questioning about subsequent design changes was permissible to show feasibility, not initial negligence; and 4) discovery allowing plaintiff access to defendant's employee experts' opinions but restricting defendant to plaintiff's testifying experts was within discretion, aligning with the trend for broader expert discovery, especially for employee experts where undue expense is not a factor.
Concurring - Horowitz, C.J.
No, the majority's construction of the marital communication privilege, which forbids an ex-wife from testifying to circumstances showing non-confidentiality (like the presence of a third person), is unsound. Washington case law, the analogy to the attorney-client privilege (where an attorney can testify to a third person's presence to show non-confidentiality), and decisional law in other jurisdictions support allowing a spouse to testify to such facts. The rationale that an ex-spouse might reveal secrets out of malice is an outdated justification for witness disqualification. However, the trial court's exclusion of the ex-wife's testimony was nonetheless proper on an alternative ground: her proffered testimony was too conjectural to overcome the presumption of confidentiality. Her statements ("I know there was other people there. I believe his grandfather heard him say it.") lacked sufficient supporting data to objectively establish the husband's awareness of others' presence or their ability to hear the communication. A trial court has the right to consider whether evidence offered to overcome the presumption of confidentiality is based merely upon conjecture.
Analysis:
This case significantly strengthens the marital communication privilege in Washington, establishing a strict interpretation that aims to preserve spousal confidence even after divorce. By prohibiting a former spouse from testifying to the alleged presence of third parties, the court prevents a potential loophole that could undermine the policy of encouraging open marital communications. The concurrence highlights a persistent tension between protecting marital privacy and the search for truth, suggesting that other states and related privileges take a less restrictive view. This decision also reaffirms the broad discretion afforded to trial judges in managing evidentiary issues, particularly concerning character evidence, similar occurrences, experiments, and the scope of expert discovery, emphasizing the balancing of probative value against prejudice and the need for substantial similarity in conditions.
