by Robert J. Henry, in Washington State Bar News
Here is Robert J. Henry’s article:
The Supreme Court’s decision in Thorndike v. Hesperian Orchards corrects a 65-year detour in Washington law and becomes the most-cited case in Washington jurisprudence
Part I of “The Case of the Golden Apple” appeared in July Bar News and examined the superior court trial of Thorndike v. Hesperian Orchards, Inc. Here, Robert Henry looks at the history of the law leading up to the Supreme Court’s decision on the case and what the decision meant for Washington law.
Fifty years ago this month, our Supreme Court decided Thorndike v. Hesperian Orchards, Inc. The opinion, written by Justice Harry Ellsworth Foster, is almost certainly the most-cited opinion in the history of Washington’s Supreme Court, and it continues to appear with regularity. Just two months ago, Thorndike was cited in an unpublished opinion in Division One.
The Thorndike holding is typically explained in a single sentence, usually this: “We will not substitute our judgment for that of the trial court on disputed issues of fact.” Another version of the Thorndike holding states: “An appellate court does not review de novo disputes of fact even if all the evidence is before it.” This proposition now seems indisputable, even intuitive, after 50 years of constant repetition by the Supreme Court, and more recently by the Court of Appeals. But it was not always so.
Only two years before Thorndike, the Supreme Court decided in Croton Chemical Corp. v. Birkenwald  to defer to the trial court’s factual determinations in a case involving barrels of salt that arrived in Seattle caked “like cement.” Justice Schwellenbach wrote a fierce dissent, which proclaimed the Court’s “duty to review the claimed errors of the trial court, whether of law or of fact.”
But where did this purported duty to review errors of fact come from? The answer can be found 65 years earlier, in the election of 1892, when Washington was a very new state and its voters were enjoying their first presidential election. Only three years earlier, Washington had entered the Union as a safe state for the dominant Republican party. But in that same year, the first Grange chapters were founded, and soon the Populist movement was sweeping the new state. By 1892, the People’s (or Populist) Party was strongly challenging the two established parties. In July 1892, the Populists held their state convention in Ellensburg, where they nominated candidates for all statewide offices and many local candidates for the Legislature and judiciary. The Republicans, in particular, were spooked by the sudden emergence of a feisty third party. The Seattle Post-Intelligencer, at the time little more than a propaganda broadsheet for the Republican party, viciously attacked the Populists, calling them “Weaverites.” The disrespect was mutual. A reporter sent by the P-I to attend the “queer convention” in Ellensburg reported a motion from the floor to declare a quarantine against the P-I because “it has proved itself worse than the smallpox or the black plague.”
The People’s Party found its support primarily in agricultural areas and with organized labor. It opposed Chinese immigration and favored public education. But the Populists’ greatest passion was directed against the railroads, which were hated for the generous land grants they received and for their monopolistic rates and practices. The Populist platform demanded the seizure of all lands owned by the Northern Pacific between Kalama and Tacoma, as well as the mandatory reduction of freight rates, and other measures to curb “corporate oppression” by the railroads.
In the November election, the Populists were not yet able to dislodge the Republicans, but they did elect 10 representatives to the Legislature. When the new session convened in Olympia in January 1893, the Legislature resumed creating the infrastructure of a new state. On January 16, a detailed Act Relating to Appeals to the Supreme Court was introduced and referred to the Judiciary Committee. The Act comprised 38 paragraphs of densely worded procedures for the new state Supreme Court. When the bill was reported back from committee five weeks later, it contained a significant amendment to Section 21 — a requirement of de novo review of trial-court factual decisions whenever the appellant furnished the Supreme Court with a complete record of the trial proceedings:
. . . and in actions legal or equitable, tried by the court below without a jury, wherein a statement of facts or bill of exceptions shall have been certified, the evidence or facts shown by such bill of exceptions or statement of facts shall be examined by the supreme court de novo, so far as the findings of fact or refusal to make findings based thereon shall have been excepted to, and the cause shall be determined by the record on appeal including such exceptions or statement.
With the passage of so many years, it is not possible to be sure of the purpose behind this amendment, but it was clearly designed to rein in the discretion of trial judges across the state, and it may have been intended to protect the railroads. Certainly lobbyists for the railroads were known at the time to hand out free travel passes liberally to legislators, and the railroads had reason to fear the election of Populist judges in rural counties. When the bill as amended reached the House floor for a final vote, only two representatives voted against it: F.R. Baker and John Edwards, both newly elected from Pierce County by the railroad-hating People’s Party.
Whether or not the amendment contained in the new statute in 1893 was intended by the Republican majority to protect the railroads, certainly de novo factual review by the Supreme Court from time to time aided the railroads over the next two decades. The best example occurred during the spate of wrongful death claims against the Great Northern Railway after the tragic Wellington disaster in 1910. An avalanche near Stevens Pass killed at least 96 passengers and railroad employees when it tumbled two stranded passenger trains down the mountainside. The first of many wrongful-death cases was tried in King County in 1913, and resulted in a $20,000 jury verdict for negligence against the Great Northern.
A year later, the Supreme Court reviewed the evidence de novo and concluded that it was “too plain for argument that no negligence of the [railroad] was shown.” Therefore, the trial judge should have directed a verdict for the Great Northern. The judgment was reversed, and this decision ended all the litigation arising out of the avalanche.
Gradually, however, as the years passed, the need for de novo review of trial court factual decisions seemed less important. With the establishment of a law school at the University of Washington in 1899, the legal training of lawyers and eventually of judges became more uniform. The Populist movement waned, to be replaced by the Progressives, who were not so radical. When judicial elections became nonpartisan in 1911, the likelihood of electing radical or political judges decreased.
As time passed, the justices began to consider de novo review as a burden, rather than an opportunity, as the caseload of the Court increased. For example, in a 1921 case, the Supreme Court was asked by an appellant to review the evidence de novo and decide a single factual question: what was the actual value of a parcel of real property in Spokane? The trial judge had noted that the expert testimony was “hopelessly in conflict” so as to “afford little assistance to the court.” Nonetheless, because it was a factual appeal, the Supreme Court was required to review all the testimony and retry the case. The Court’s opinion, by Justice Tolman, complained of the burden:
. . . in the nature of things this is more difficult for us than for the trial court, who saw and heard the witnesses. We are asked, since this is a trial de novo, to disregard the findings of the trial court entirely and arrive at a conclusion from the evidence in the case without reference thereto.
Notwithstanding the difficulty, the Supreme Court grudgingly waded through the record and modified the trial court decision.
This was the situation when the Thorndike case reached the Supreme Court. For over 60 years, the Court had followed the mandate of the Legislature to review the facts whenever an appellant presented the complete record and asked it to do so. But in recent years, the Court’s reluctance had become more apparent, and more frequently it expressed its preference to defer to the judge who heard the testimony.
Earl Foster, the attorney for Hesperian Orchards, filed a notice of appeal in the Chelan County Superior Court on May 26, 1958. He wanted the Supreme Court to reverse a $10,271 money judgment against his client for breach of a written contract to pay an apple grower a specified pooled price for Golden Delicious apples. Court reporter Elizabeth Walters began typing the trial transcript, and a month later it was finished. Foster posted a supersedeas bond and sent the 731 pages of transcript to Olympia.
The opening brief assigned error to several of the trial court’s findings of fact and evidentiary rulings, but asserted no errors of law. Thus, the question of whether the Supreme Court would review the factual determinations de novo was unavoidably presented.
The responding brief, written by A.J. O’Connor for the Thorndike family, made passing reference to the Croton case and others, but O’Connor had practiced law in Washington for 47 years, and he undoubtedly knew the Supreme Court had to retry the facts for itself if presented with the full record, so, like his opponent, he concentrated on the facts. In turn, Earl Foster’s reply brief was unapologetic, stating: “This is plainly a factual appeal.”
The opportunity to write the court’s opinion fell to Justice Harry Ellsworth Foster, no relation to Wenatchee attorney Earl Foster, who argued for appellant. Justice Foster had been appointed to the Supreme Court in July 1956 by Governor Langlie, after many years of private practice in Olympia. In November of that year, he was elected to a full term. Judge Foster was later remembered by his colleagues as a scholar and a gifted researcher, one who loved to trace the development of an idea or legal concept back to the English common law. A colleague on the bench, Justice Matthew Hill, offered this tribute to Justice Foster’s love of research: “Poring through the digests was, to him, like panning for gold, and finding the nuggets he wanted — a never-ending thrill!”
Two years earlier, Justice Foster had written an opinion showing he was not in favor of de novo review. In the Thorndike case, Foster’s research led him to a surprising nugget, one that both the lawyers missed. The 1892 statute which required the Supreme Court to give the facts a de novo review had been expressly repealed by the Legislature just two years earlier! That being the case, the decision in the Thorndike case was easy and did not require that anyone read 731 pages of trial transcript:
The findings are amply sustained by the proofs. If we were of the opinion that the trial court should have resolved the factual dispute the other way, the constitution does not authorize this court to substitute its finding for that of the trial court. The judgment must be affirmed.
Donald Horowitz, now a retired judge himself, had just graduated from law school in 1959, and he took a position as Justice Foster’s law clerk in July 1959, one month before the Thorndike decision was released. He did not help in its research or drafting, but Horowitz recalls that Justice Foster spoke of the decision frequently. Foster was proud of the decision, not because it reduced the Court’s workload, but because it represented the Court’s willingness to exercise self-discipline, to refrain from toying with the factual decisions of trial judges. With the Thorndike decision, the question was settled, and after 65 years, de novo factual review in the Supreme Court ended. Frequent reminders for the past 50 years have cemented the Thorndike holding in the collective understanding of the legal profession.
But the question remains: How could two experienced and well-educated lawyers have failed to discover the repeal of the statute that Justice Foster unearthed? Certainly, they were not alone. The University of Washington Law Review published a detailed analysis of the laws of 1957 and made no mention of this repeal. In fact, it appears that even the Legislature was not fully aware of what it had done. The legislative history is scanty, but it contains no sign of awareness that a significant statute was included in the wholesale purge of out-of-date provisions. Retired Seattle lawyer Rocky Lindell was a freshman representative that year, just elected from the 45th District a few months after graduating from law school. Lindell recalls that Fred Dore, who later sat on the Court of Appeals and the Supreme Court, was the ranking Democrat on the House Judiciary Committee, and Newman “Zeke” Clark was his Republican counterpart. Lindell remembers that they co-sponsored a bill intended to “clean up” a lot of obsolete provisions in the statutes. That bill was undoubtedly House Bill 13, sponsored by Dore and Clark, which was introduced on the second day of the legislative session. It contained dozens of changes, including section-by-section repeal of virtually the entire 1893 Act Relating to Appeals. After a first reading, the bill was sent to the Judiciary Committee. Six days later, the bill was reported back without comment and with a recommendation that it pass. A few days later, the bill was passed unanimously.
Within the month, House Bill 13 cleared the Senate, and it was signed by Governor Rosellini in February 1957. At no point in this progression was there any indication that the Legislature intended to reduce the powers of the Supreme Court. But when the Thorndike case reached the Court two years later, the repeal was waiting quietly in the statute books for the careful research skills of Justice Foster.
The Supreme Court’s decision in Thorndike was filed on August 20, 1959. The decision of the trial judge, Lawrence Leahy, was affirmed. The mandate was returned to Chelan County and the case ended. Ms. Walters’ 731 beautifully typed pages of transcript found their way to the State Archives, where they still can be read today. Two years later, Justice Foster was re-elected to a second term on the Supreme Court, but a few weeks later, on December 5, 1962, he died of a heart attack.
In a final postscript to this historic case, nine years later, in 1968, someone at the Supreme Court discovered in the files a Hesperian Orchards apple crate which the appellant had sent along with the record as a demonstrative exhibit. A letter was sent promptly to both counsel seeking their consent to dispose of the crate. Jack O’Connor, 79 years old and still practicing, promptly gave his permission. So did his former opponent, Earl Foster, who was now a trust officer with Seattle First National Bank. Their letters went into the file and the apple crate went to the landfill.
Robert J. Henry is the managing principal of Lasher Holzapfel Sperry & Ebberson PLLC in Seattle.
1. Reported at 54 Wn.2d 570 (1959).
2. Reported at 50 Wn.2d 684 (1957).
3. Seattle Post-Intelligencer, July 26, 1892, p. 3.
4. House Journal of the Third Legislature, 1893.
5. Newell, Gordon, Rogues, Buffoons and Statesmen, Hangman Press, 1975.
6. Topping v. Great Northern Rwy, 81 Wash. 166 (1914).
7. Thomas v. Citizens’ Realty, 114 Wash. 456 (1921).
8. 62 Wn.2d xxx (1963)