Volume 6 — Washington Appellate Reports

<bold>[1] Parent and Child — Custody of Children — Findings of Trial</bold> <bold>Court — Review.</bold> Trial courts are necessarily allowed broad discretion in child custody matters; their findings of fact and conclusions of law are of particular import when reviewing such cases. A reviewing court will not substitute its determination for that of the trial court in the absence of a manifest abuse of the trial court's discretion. <bold>[2] Parent and Child — Custody of Children — Natural Parents.</bold> Natural parents may not be refused or deprived of custody of their children in favor of a third party in the absence of a showing of unfitness which demonstrates that the welfare of the child, which is of paramount concern, is clearly in jeopardy. [See Ann. 31 A.L.R.3d 1187; 59 Am.Jur.2d, Parent and Child § 26.]

<bold>[1] Criminal Law — Trial — Disclosure of Facts to Defendant —</bold> <bold>When Required.</bold> The prosecution has an affirmative duty to voluntarily disclose to a defendant at the earliest feasible opportunity evidence known to the state that is favorable to the accused and material either to negate guilt or mitigate the degree of the offense or punishment, that may have an effect on the outcome of the trial, and which the state has reason to believe is unknown to the defendant. [See Ann. 33 A.L.R.2d 1421; 21 Am.Jur.2d, Criminal Law § 225.] <bold>[2] Criminal Law — Trial — Disclosure of Facts to Defendant —</bold> <bold>When Duty Arises.</bold> Where the prosecution has knowledge of facts which would bear on the credibility and competence of a person if called as a prosecution witness, an affirmative duty to disclose such facts to the defendant arises when the state determines it will use the person as a witness. <bold>[3] Criminal Law — Trial — Disclosure of Facts to Defendant —</bold> <bold>Purpose.</bold> The primary interest in placing on the prosecution the affirmative duty to voluntarily disclose evidence favorable to the defendant is not to punish possible misconduct of the prosecutor, but to insure a fair trial to the defendant. <bold>[4] Criminal Law — Trial — Disclosure of Facts to Defendant —</bold> <bold>Harmless Error.</bold> The failure of a prosecutor to carry out an affirmative duty to voluntarily disclose evidence or facts to the defendant does not warrant an automatic reversal of a conviction; reversal is warranted if it may have had an effect on the outcome of the trial. The appellate court must be able to declare a belief that the error was harmless beyond a reasonable doubt in order to affirm the conviction. <bold>[5] Judgment — Orders — Finality — Oral Decision.</bold> An oral decision of the trial court in ruling on a motion is subject to reconsideration and change until it reaches the status of a formal order. <bold>[6] Criminal Law — Confessions — Advisement of Constitutional</bold> <bold>Rights — Personal Right.</bold> An individual's right to advice under the <italic>Miranda</italic> rule prior to making a statement is personal; another party has no standing to challenge a violation. <bold>[7] Evidence — Relevancy — Determination.</bold> Determinations as to relevancy of evidence is a matter within the discretion of the trial court. <bold>[8] Criminal Law — Witnesses — List of Witnesses — Rebuttal</bold> <bold>Witnesses.</bold> It is not necessary that the state name rebuttal witnesses on its list of witnesses supplied to a defendant.<page_number>Page 613</page_number> <bold>[9] Evidence — Photographs — Admissibility.</bold> The admission of photographs lies within the sound discretion of the trial court. <bold>[10] Criminal Law — Trial — Instructions — Use of "Infer."</bold> The use of the word "infer" in an instruction telling the jury that a particular element of a crime need not be directly proved, but that it could be established by circumstances as would authorize the jury to infer it, is proper where there is sufficient factual basis for the jury to draw the inference.

<bold>[1] Corporations — Stock — Book Value — Certified Accounting —</bold> <bold>Effect.</bold> In the absence of fraud or mistake, a certified accounting made pursuant to a provision of a valid stock "buy out" agreement is binding upon all of the parties. <bold>[2] Corporations — Stock — Book Value — Mistake — Factors</bold> <bold>Considered.</bold> In resolving a contention of mistake in computing the book value of the stock of a corporation, courts look to the language and circumstances surrounding the accounting event. If it appears that an accepted accounting practice has not been used in keeping the books of account, or if they are arranged in a manner advantageous to one of the parties, the courts can then substitute amounts determined through correct accounting procedures in order to answer the questions of law and fact involved. <bold>[3] Corporations — Stock — Book Value — Accounting Method.</bold> The accounting method used to determine book value of corporate stock must be uniform in order to be fair and equitable to all parties, a sudden change in valuation procedures reflects neither a stable accounting system nor a predictable valuation basis and should not be allowed. [See Ann. 51 A.L.R.2d 606; 18 Am.Jur.2d, Corporations § 221.] <bold>[4] Trial — By Court — Findings — Evidence — Necessity.</bold> While it is the duty of the court in a law action to make findings of fact upon the material issues tried to the court, there must be evidence in the record upon which the court may act.

<bold>[1] Master and Servant — Principal and Agent — Tort Liability —</bold> <bold>Nonservant Agent — In General.</bold> Vicarious liability of a principal for the negligent physical acts of a nonservant agent depends on whether the principal at the time of the injury-causing event authorized the manner of performance, <italic>i.e.,</italic> did he control or have the right to control the details of the latter's physical movements. Vicarious tort liability does not depend solely upon finding or not finding the presence of an agency relationship. [See 3 Am.Jur.2d, Agency § 267.] <bold>[2] Master and Servant — Principal and Agent — Liability</bold> <bold>Considerations.</bold> Vicarious tort liability involves different policy considerations than the questions surrounding an agent's ability to bind his principal in business dealings with third persons. <bold>[3] Torts — Liability — Ability to Pay.</bold> Liability in tort does not depend upon the defendant's ability to pay, but upon the actual presence of his responsibility for the injury. <bold>[4] Witnesses — Hostile Witness — Former Officers and Agents of</bold> <bold>Adverse Party.</bold> Under CR 43(b), which gives a party the right to call, as adverse witnesses, officers, directors, or managing agents of an adverse party, the adversity of a former agent or officer of an adverse party depends upon the trial court's discretionary determination of hostility.