Volume 101 — Washington Reports

<p>Application filed in the supreme court January 29, 1918, for a writ of mandamus to compel the superior court for King county, Jurey, J., to certify a statement of facts.</p>

<p>Appeal from orders of the superior court for King county, Jurey, J., entered June 2, 1917, dismissing an action for personal injuries and denying a new trial, after a hearing before the court.</p>

<p>Appeal from a judgment of the superior court for King county, Tallman, J., entered May 17, 1917, upon findings in favor of the plaintiffs, in an action in tort, tried to the court.</p>

, entered March 23, 1917, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained in an automobile collision.

<p>Appeal from a judgment of the superior court for King county, Mackintosh, J., entered June 23, 1917, upon findings in favor of the plaintiffs, in an action in tort, tried to the court.</p>

<p>Appeal from an order of the superior court for King county, French, J., entered August 10, 1917, restraining entry upon lands, pending action to restrain trespass.</p>

, entered May 11, 1917, upon the verdict of a jury rendered in favor of the plaintiffs, by direction of the court, in an action upon a fire insurance policy.

<p>Appeal from a judgment of the superior court for King county, Albertson, J., entered April 13, 1917, upon findings in favor of the plaintiff, in an action upon contract, tried to the court.</p>

<p>Vendor and Purchaser—Rescission by Vendee-—-Fraud—Waiver. Fraud in the sale of land, in that the land conveyed was not the land shown and purchased, is waived, where after knowledge of the fraud, the vendee made two- payments on the contract and paid the taxes, and did not commence suit for six months.</p> <p>Same—Forfeiture of Contract — Defenses—Estoppel. Vendee, prosecuting an action for rescission, cannot defeat forfeiture of the contract for nonpayment of installments on the ground that the vendor had accepted payments after they were past due, as such contentions are inconsistent.</p>

<p>Appeal from a judgment of tlie superior court for King county, Frater, J., entered February 6, 1917, upon the verdict of a jury rendered in favor of the plaintiff, in an action in tort.</p>

, entered March 24,1917, upon the verdict of a jury rendered in favor of the plaintiff for personal injuries sustained in an automobile collision.

<p>Appeal from a judgment of the superior court for King county, Mackintosh, J., entered February 28, 1917, upon findings in favor of one of the defendants, upon a cross-complaint, in an action to quiet title, tried to the court.</p>

<p>Mandamus — To Courts—Erroneous Dismissal for Want of Jurisdiction—Remedy by Appeal. Mandamus lies to compel a superior court to proceed with a case which it erroneously dismissed on the mistaken belief that it had no jurisdiction; since the judgment rests upon a disclaimer of the judicial function, and is not a judicial act which ought to be reviewed on appeal (Mount and Parker, JJ., dissenting).</p> <p>Insane Persons — Inquisitions •— Discharge — Jurisdiction of Courts. The superior court having general jurisdiction over insane persons, has inherent jurisdiction irrespective of statute to discharge or commit an insane person, and such power is not affected by the repeal of Rem. Code, § 1671, authorizing the discharge of an insane person upon recovering his reason:</p> <p>Same—Discharge—Proceedings. Where an insane person is out on parole given by a judge of the superior court that committed him to the hospital, the courts have jurisdiction to discharge him without the necessity of first applying to the superintendent of the hospital and there claiming his exemption from restraint.</p>

F. Wright, J., entered August 14, 1916, upon the verdict of a jury rendered in favor of the plaintiffs, after a trial on the merits.

<p>Taxation—Distraint—Sale of Personal Property — “Dissipated.” Part of a stock of goods was not “dissipated or about to be dissipated,” within the meaning of Rem. Code, § 9249, authorizing a distraint for taxes, from the fact that it was removed from the storeroom and placed in a storage warehouse when the prohibition law went into effect and it could no longer be used in the business; and the county treasurer would be liable for its unlawful distraint.</p> <p>Parker, J., dissents.</p>

, entered April 24, 1917, upon findings in favor of the defendants, in an action to foreclose logger’s liens, after a trial on the merits.

<p>Carriers—Jitney Busses—Injury to Passengers—Actions—Instructions. In a passenger’s suit for injuries sustained through the concurrent negligence of the drivers of a jitney and an automobile, instructions are not erroneous as rendering the jitney owner liable regardless of whether his negligence was the proximate cause, where they clearly charged that the negligence of the driver of the jitney, or the concurrent negligence of both drivers, must have caused the collision before verdict could he rendered against appellants.</p> <p>Same. An instruction is not prejudicially erroneous in requiring of a jitney bus driver the highest degree of care, without qualification by the clause, “consistent with the practical conduct of the business,” where the instruction complained of plainly referred to the definition of his duty given in another instruction containing the qualification.</p> <p>Same—Jitneys—Injury to Passengers—Negligence—Evidence-Sufficiency. In a passenger’s suit for injuries sustained through the concurrent negligence of the drivers of a jitney and an automobile, a verdict against the former is sustained, where it appears that the street was wet and slippery, the jitney was not equipped with non-skidding devices, and was being driven at an unlawful and dangerous speed, and just before the accident, it swerved and struck the automobile, and was thrown by the force of the impact a distance of 85 feet.</p> <p>Witnesses—Impeachment—Effect. The impeachment of a witness by his testimony given in the police court affects the weight and credibility, and not the competency, of the evidence.</p> <p>Damages—Personal Injuries—Excessive Verdict. A verdict for '$2,500 for injuries sustained in an automobile collision is not excessive, where plaintiff, a veterinary surgeon, 64 years of age, sustained a cut over the right eye, a broken collar bone, and partial loss of motion of the right arm, was rendered unconscious and from the date of the injury suffered great pain, loss of sleep, and ability to care for himself.</p>

<p>Wills—Attestation—Evidence—Sufficiency. A will is not sufficiently attested witliin the requirements of Laws 1917, p. 649, § 25, requiring it to be signed by the testator in the presence of two witnesses, who shall subscribe their names in the testator’s presence, where it appears that it was not signed in the presence of the witnesses, and was not signed by a witness in the scope of the testator’s vision, and the name of one of the witnesses, who never saw the paper, was signed by his wife without his knowledge.</p>

Application filed in the supreme court March. 13, 1918, for a writ of prohibition to prevent the hearing of a cause by the superior court for Snohomish county, Bell, J.

Application filed in tlie supreme court January 23, 1918, for leave to file a petition for the vacation of a judgment upon remittitur, entered, by the superior court of King county, French, J.

Application filed in the supreme court November 8, 1917, for a writ of prohibition to prevent the vacation of a judgment by the superior court of King county, Dykeman, J.

<p>Application filed in the supreme court February 13, 1918, for a writ of prohibition to the superior court for Yakima county, Taylor, J., to prevent further proceeding in a criminal case.</p>

<p>Master and Servant — Injury to Servant —■ Defective Appliances—Proximate Cause—Question for 'Jury. Where the death of a brakeman was caused by the sudden parting of the train, when the air hose broke and set the brakes, and a defective coupling gave way under the strain, the defective coupling was a contributing cause, and it is error to grant a nonsuit on the theory that the bursting of the air hose was the proximate cause of the accident, there being evidence tending to show that, if the train had not parted, the tender of the engine would have been a great factor of safety in preventing the accident, making the proximate cause a question for the jury.</p>

, entered April 16, 1917, upon the verdict of a jury rendered in favor of the defendant by direction of the court, in an action in tort.

<p>Carriers ■— Who Are Common Carriers ■— Taxicab Companies. Owners of automobiles driven for hire at so much per hour or trip, having fixed stands for prospective customers, and transporting passengers from place to place, although without any fixed routes, schedules, or rates, and reserving the right to refuse transportation, are common carriers and so subject to regulation under Rem. Code, § 5562-37 et seq.</p>

<p>Appeal from a judgment of the superior court for King county, Gilliam, J., entered September 29, 1917, upon findings in favor of the plaintiff, in an action upon contract.</p>

<p>Appeal from an order of the superior court for Stevens county, Jackson, J., entered September 8,1915, denying a motion to vacate a judgment and sentence, after a hearing upon affidavits.</p>

<p>Appeal from a judgment of the superior court for King county, Tallman, J., entered March 12, 1917, upon the verdict of a jury rendered in favor of the plaintiff, in an action in tort.</p>

<p>Appeal from a judgment of the superior court for King county, Jurey, J., entered February 2,1917, upon findings in favor of cross-complainant, in an action of interpleader, tried to the court.</p>

, entered April 13, 1917, upon the verdict of a jury rendered in favor of the plaintiff, in an action to recover from a carrier for the loss of goods.

, entered April 28, 1917, upon findings in favor of the defendant, dismissing an action on contract, tried to the court.

<p>Libel and Slander—Slander Per Se—Words Imputing Oeeense —Injury in Business. Charges by a life insurance company that its cash clerk had stolen money, made to the clerk’s father, and statements to others to whom the clerk subsequently applied for employment that he had been careless in keeping his cash, or was short in his accounts, or that his accounts were not exactly right, thereby preventing his employment, are slanderous per se, unless true or privileged, as words importing to him a criminal offense involving moral turpitude for which he might be prosecuted, and as defamatory words prejudicing him in his business or profession.</p> <p>Same—Truth—Question for Jury. In an action against a life insurance company for slander in charging plaintiff, its cash clerk, with stealing money, the truth of the charge is not established, as a matter of law, by proof that he receipted for the money and his cash books and slips showed that he had not accounted for it, but the question is for the jury, where plaintiff denied the charge and any memory of receiving the money and his cash drawer was accessible to other clerks in the common office room, who might have taken the money and cash slips.</p> <p>Same—Privilege—Charges Made to Parent. Charges by an insurance auditor that a cash clerk of the insurance company had stolen money, made at an interview with the clerk at which his father was present by his consent, are only qualifiedly privileged, and the facts not being disputed, the question of privilege is one for the court.</p> <p>Same—Privilege—Question fob Jury. In such a case, whether the privilege of the occasion was exceeded depends on the good faith of the charges, and is for the jury, where the charge was not confined to the admitted facts that the clerk was short a small sum in his accounts, and it appeared that others in the office might have stolen the money from his cash, drawer, and he persistently denied taking the money and refused to repay it; since the charges, under the circumstances, might have been made to coerce the payment.</p> <p>Same—Privilege—Business Reference. A communication made by the manager of an insurance company, upon a business reference, to another company contemplating the employment of a discharged employee, is one of qualified privilege, which is not exceeded when strictly confined to the facts that such employee had been discharged because short in his accounts and had been at least careless.</p> <p>Same—Defense—Truth. The truth of a statement that a clerk had been discharged because short in his accounts is a complete defense to a charge of slander, regardless of the question of privilege.</p>

<p>Evidence—Documentary Evidence—Records. Copies of records certified by a deputy county auditor are not inadmissible because not certified by the auditor; the act of his deputy being his act.</p> <p>Same—Documentary Evidence—Maps and Plats. A plat made by a deputy county engineer, based on his own field notes, is admissible in evidence, under Rem. Code, § 3975.</p> <p>Highways—Establishment — Authority op County Commissioners—Jurisdiction—Collateral Attack. County commissioners having general jurisdiction of the establishment of county roads by virtue of Rem. Code § 5623-1 et seq. and having acquired jurisdiction by petition and notice as required by Id., § 5633, to establish a certain road, their jurisdiction cannot be attacked collaterally by certiorari proceedings to review an order adjudicating a public use and necessity for appropriating lands for the road.</p> <p>Same—Establishment—Change of Route. Under Rem. Code, § 5627, empowering the county engineer to survey any other route for a county road than that petitioned for, the county commissioners may, after notice and hearing thereon, adopt a change in the route petitioned for; and reference to the former terminal points'is no longer jurisdictional, in view of Id., §§ 5623-2 and 5623-3, empowering the commissioners to establish any road without petition or adopt any route found most practicable.</p>

<p>Appeal—Bond—Obligees—Assignee of Judgment. Under Rem. Code, § 193, providing that “no action shall abate by . . . the transfer of any interest therein,” and allowing substitution, it is not essential to serve notice of appeal upon an assignee of a judgment, or that he be named in the bond on appeal, where he had not been substituted as a party to the action; since he was not the “prevailing” party, and his rights as an assignee are in no manner affected by the failure to name him in the bond.</p>

<p>Indemnity—Replevin Bond—Liability Over—Persons Not Parties or Liable by Operation of Law. Where a sheriff wrongfullyreplevied property in a suit by a receiver, and under judgment on the replevin bond, there was no return of the property, which was assigned by the receiver, and the receiver’s bondsman was held liable and recovered judgment against the sheriff, the sheriff cannot recover over from the receiver’s assignee, to whom the replevied property had been delivered by the sheriff upon demand, such assignee, not having been a party to the former action; inasmuch as such assignee was not liable by express contract or by operation of law by reason of the fact that the sheriff had turned the property over, as his duty required; the receiver having presumably obtained value for the property when assigned, and there being no showing that assets in his hands were insufficient to pay the claim.</p>

, entered December 4, 1916, in favor of tbe defendants, in an action to set aside a deed and subject property to tbe lien of a judgment, tried to tbe court.

, entered July 30,1917, upon sustaining demurrers to the complaint, dismissing an action to set aside deeds and to quiet title, tried to the court.

<p>Appeal from a judgment of the superior court for Yakima county, Holden, J., entered March 21, 1917, upon a trial and conviction of larceny.</p>

, entered August 13,1917, upon granting a nonsuit, dismissing an action for personal injuries sustained by an employee engaged in unloading a vessel.

<p>Appeal from a judgment of the superior court for King county, Ronald, J., entered March. 24, 1917, in favor of the plaintiffs, confirming the report of a referee upon a partnership accounting, upon a hearing before the court upon exceptions thereto.</p>

<p>Appeal from an order of the superior court for Snohomish county, Bell, J., entered June 25, 1917, denying the probate of an alleged will.</p>

, entered March 6, 1917, upon a trial and conviction of subscribing to a false paper with intent to deceive the state bank examiner.

<p>Evidence—-To Vary Writing—Exchange of Property—Contemporaneous Oral Agreement. In the absence of fraud or mistake, it is inadmissible to vary the terms of a written 'contract for the exchange of properties, calling for the execution of a note and mortgage as part of the consideration, by evidence of a contemporaneous oral agreement that the note' and mortgage were merely given in exchange for or in lieu of another obligation which the holder of the note was obligated to pay, and which he had not done, and that the consideration failed on that account.</p> <p>Fraud—Evidence—Sufficiency. In an action upon a promissory note given in an exchange of properties, a counterclaim for fraud in misrepresenting the water rights appurtenant to the lands received by defendants is properly disallowed, where it appears that defendants made their own personal inspection and fully informed themselves through investigation and the advice of a lawyer as to the water rights appurtenant to the land.</p>

<p>Criminal Law—Continuance—Absence of Witnesses—Abuse of Discretion. It is error to force one accused of murder to trial within twenty-five days after filing the information, and to deny a continuance in order to secure absent nonresident witnesses, where the killing was admitted and the only defense was insanity, and it appears that the accused had only recently arrived in this state, and witnesses from North Dakota made affidavit as to material, competent and important facts bearing on the issue of insanity which they would testify to, if the case were postponed until after harvest, and reasonable probability of their attendance in such case was assured.</p>

, entered July 2, 1917, upon findings in favor of the defendant, in an action by a receiver to recover money paid to a creditor of an insolvent bank, tried to the court.

, entered September 7, 1917, in favor of the plaintiffs, directing the issuance of a writ of mandamus, after a hearing upon objections to the jurisdiction of the court.

Appeal by plaintiff from a judgment of the superior court for Asotin county, Miller, J., entered July 27, 1917, upon findings in favor of the plaintiff as against certain defendants, in an action for equitable relief, tried to the court.

<p>Appeal from an order of the superior court for King county, Frater, J., entered February 15, 1917, denying an application for an order compelling the industrial insurance commission to fix the amount of plaintiff’s compensation for personal injuries.</p>

Appeal' from a judgment of the superior court for Kittitas county, Taylor, J., entered May 9, 1917, upon sustaining a demurrer to the complaint, dismissing an action in tort.

<p>Appeal from a judgment of the superior court for Yakima county, Preble, J., entered June 3, 1916, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a minor while playing on public school playgrounds.</p>

<p>Appeal from a judgment of the superior court for Benton county, Kauffman, J., entered January 5, 1917, upon the verdict of a jury rendered in favor of the defendants, in an action on promissory notes.</p>

<p>Appeal from a judgment of the superior court for Lewis county, Back, J., entered January 29, 1917, in favor of the plaintiff, in an action for specific performance, tried to the court.</p>

, entered March 31, 1917, in favor of the defendant, upon withdrawing the case from the jury, dismissing an action for damages.

<p>Appeal—Record—Exhibits—Review. Error cannot be predicated upon insufficiency of tbe evidence to sustain tbe verdict, where neither the instructions nor numerous exhibits introduced in evidence are made a part of the record on appeal.</p>

<p>Appeal from an order of the superior court for Whatcom county, Pemberton, J., entered July 31,1917, directing the defendant to countersign, register and deliver certain warrants to the relator, or be committed to jail until compliance therewith.</p>

<p>Appeal from orders of the superior court for Pacific county, Edward H. Wright, J., entered January 6, 1917, approving the final account of a receiver and fixing his compensation and that of his attorneys.</p>

<p>Taxation—Recovery op Illegal Tax—Voluntary Payment—Mistake op Law. Taxes upon Indian lands, levied by the county and voluntarily paid by the Indian’s grantee under a mutual mistake of law and the belief that the lands were assessable for taxation, cannot be recovered back; since there was no ignorance or mistake of fact and the payment was voluntary.</p>

<p>Appeal from a judgment of the superior court for King county, Gilliam, J., entered May-12, 1917j upon a trial and conviction of arson.</p>

<p>Appeal from a judgment of the superior court for King county, Alston, J., entered May 15, 1917, upon findings in favor of the defendant, in an action on a promissory note.</p>

<p>Waters and Water Courses—-Irrigation Ditches—Easements—• “Ownership.” When the title to an irrigation ditch originates in grant or prescription to use another’s land, it never rises above its source as an easement, and “ownership” of the ditch refers to ownership of the easement and not to title in fee.</p> <p>Same—Irrigation Ditches—Rights oe Dominant Estate. Where, at the time of granting an easement for an irrigation ditch, there was no contemplation of a greater servitude than the one specified, the owner of the dominant estate cannot increase the burden of the easement by turning other waters into the ditch without the consent of the owner of the servient estate.</p> <p>Same—Irrigation Ditches-—Rights oe Tenants in Common. A tenant in common of the easement of an irrigation ditch has no right to enlarge the easement right by imposing the additional burden of carrying other waters not in contemplation of the parties at the inception of the grant, and neither has the right to deposit in the ditch private waters for his exclusive use; but the fact of co-tenancy in the easement gives both parties the right to possession of waters in the ditch according to their respective proportionate interests.</p> <p>Same—Irrigation Ditches—Actions—Judgment—Changing Diversion. Upon adjudging the rights of cotenants in an irrigation ditch, the court is not justified in changing the place and mode of diversion employed for a long time, merely because it would prove convenient to one of the parties in his use of a private ditch.</p> <p>Same—Irrigation Ditches—Damages eor Diversion-—Rights oe Cotenants. The wrongful commingling of his private waters, by one of the tenants in common of a joint ditch, without placing suitable measuring devices, forfeits his right to damages for diversion of part of the water by his eotenant.</p>

<p>Insurance—Fire Insurance—Assignment op Loss—Knowledge op Agent—Liability op Company. Where the agent who solicited and wrote the insurance witnessed the assignment of the policy-after the loss, and had full knowledge of the terms and conditions of the assignment, his knowledge is imputed to the company, although the agent failed to report the assignment; and the company is liable for paying out the loss in disregard of the rights of the assignee.</p>

<p>Appeal—Review—Recobd. Error cannot be predicated upon requiring the plaintiff to make an election where neither the pleadings nor the ruling complained of are brought up in the record.</p> <p>Pbincipal and Agent—Negligence oe Agent—Measube oe Damages—Btjbden oe Peooe. In an action by a principal against his agent for negligence in failing to take security for money loaned for plaintiff, in order to make a prima facie case for more than nominal damages it is not necessary to show the insolvency of the debtor; but a prima facie case having been made by proof of the negligence of the agent and a reasonable probability that with due care the collection could have been made, the burden is then upon the agent to show a reduction of the loss or that there was no damage.</p>

<p>Statutes—Titles and Subjects—Railboads—Fencing Act—Constitutionality. The railway fence act, Rem. Code, §§ 8731, 8732, providing that railroads shall he liable for the injury or killing of stock in any manner by reason of failing to fence the track does not embrace injuries not happening through moving trains, in view of the constitutional requirement that the subject of the act be expressed in the title, and the title of the act, which was an act compelling the fencing of railroad tracks and declaring the law .of negligence with regard to stock “injured by railway trains.”</p> <p>Appeal—Review—Theoby oe Case. Where plaintiffs action was based upon defendant’s failure to fence its track and the driving of plaintiff’s horse upon a bridge where it was killed by a moving train, which was wholly unsupported by evidence, the theory cannot be changed on appeal to a claim of liability for injury to the horse in falling through the bridge.</p>

, entered November 28, 1916, directing the payment of a claim against the estate of a decedent, after a hearing before the court.

<p>. Intoxicating Liquors—Seizures—Shipments—Permits— Expiration. A shipment of intoxicating liquor to a druggist, which did not reach this state until after the expiration of the thirty days limited in the permit, is contraband, and subject to .seizure and forfeiture, under Rem. Code, § 6262-17, requiring a county auditor’s permit for such shipments and providing that the permit shall be void after thirty days from the date of issue.</p> <p>Same—Seizures—Expired Permits—Duty of Carriers. The fact that the shipment was initiated prior to the expiration of the thirty days limited in the permit would not make it the duty of the railroad company to transport it to its destination after it had become contraband by lapse of time.</p>

, entered December 20,1916, upon findings in favor of the plaintiff, in an action to recover a deposit made under a sales contract, tried to -the court.

<p>Reformation of Instruments — Mistake—Want of Mutuality. Mortgages given by property owners to secure payment of lump sums agreed upon and due under the terms of regrade contracts, cannot be reformed because of the owner’s ignorance of his rights under city ordinances providing for a less expensive regrade than the one contracted for, in the absence of any allegation of fraud or mutual mistake.</p>

<p>Appeal from a judgment of the superior court for Grant county, Hill, J., entered June 12, 1917, upon findings in favor of the plaintiffs, in an action on a promissory note, tried to the court.</p>

<p>Charities—Torts—Liability. If a Young Men’s Christian Association is a charitable or benevolent association, it is not liable for personal injuries sustained through the negligence of its servant in running a passenger elevator.</p> <p>Evidence—Judicial Notice—Y. M. C. A. Charitable Purposes. The courts cannot take judicial notice that an independent Young Men’s Christian Association incorporated under the laws of this state is essentially a charitable and benevolent association within the rule of nonliability for negligence of its employees.</p> <p>Charities—Torts op Servants—Pleading—Complaint. A complaint for personal injuries fails to show that a Young Men’s Christian Association is a charitable and beneyolent association within the rule of nonliability for the negligence of its employees, where, though its articles indicated design for charitable purposes, it is alleged that charges were made for benefits and privileges equal in amount to charges made by institutions operated for gain, and it was not shown that it had no capital stock or that all or any considerable part of its gains were applied to charity.</p>

<p>Appeal from a judgment of the superior court for Franklin county, Linn, J., entered February 13, 1917, upon findings in favor of the defendant, dismissing an action on contract, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Thurston county, Mitchell, J., entered August 24,1917, upon a trial and conviction of having possession of clams during the closed season.</p>

<p>Evidence^-—Parol Evidence — Explanatory op Writing—Uncertainty. A written contract employing a farm laborer to work for a one-third share of the crops, increase of the live stock on the place, and pfofits from the chickens and eggs, the employer to furnish everything but labor, is so vague and uncertain as to admit of proof by parol explanatory of the writing that the employer agreed to furnish a certain amount of live stock, where it appears that there was no live stock or chickens on the place at the time the contract was made.</p> <p>Same—Parol Evidence to Vary Writing—Reformation. Where a written contract is so vague and uncertain as to admit of proof of a contemporaneous oral agreement explanatory of the terms of the writing, it is not necessary to reform the writing in order to construe it accordingly.</p> <p>Master and Servant —• Contract op Employment — Breach — Termination of Relation. Where the employer of a farm laborer, to be paid by a one-third share of the crops, increase of live stock, and profits from the sale of chickens and eggs belonging to the employer, failed to furnish any live stock or chickens, the employee could rescind and recover for his services as though he had been actually dismissed from service.</p> <p>Same—Contract of Employment—Construction. The relation of master and servant is created by a contract whereby plaintiff was employed to farm and live on defendant’s premises, defendant agreeing to “pay” plaintiff one-third of the crops, increase of live stock, and profits from the sale of chickens and eggs and furnish everything except labor, the plaintiff agreeing to devote all his time to the work, and as much as possible to clearing, and to obey all orders of the defendant.</p> <p>Same—Contract op Employment—Breach—Measure op Damages. In such a case, on defendant’s breach of the contract by failing to furnish live stock and chickens, and rescission by plaintiff, making proof of prospective earnings a matter of guesswork, plaintiff may recover the reasonable value of his services up to the time of the termination of the relation.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Oswald, J., entered March 2, 1917, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained through a collision with a train.</p>

<p>Appeal from a judgment and order of the superior court for Spokane county, Huneke, J., entered November 2, 1916, and January 30, 1917, granting a divorce upon findings in favor of the defendant, and denying an application to vacate the judgment entered thereon, after a hearing before the court.</p>

<p>Appeal from a judgment of the superior court for Whatcom county, Hardin, J., entered April 24, 1917, upon a trial and conviction of murder.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Kennan, J., entered December 18, 1916, upon findings in favor of the defendants, in an action for damages, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Card, J., entered May 26,1917, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained through a fall down an elevator shaft.</p>

, entered May 7, 1917, in favor of the defendant grantee, in an action to foreclose a chattel mortgage, tried to the court.

<p>Appeal from an order of the superior court for Snohomish” county, Bell, J., entered July 6, 1917, granting a writ of mandamus to compel a city council to enforce an ordinance, upon sustaining a demurrer to the answer.</p>

<p>Landlord and Tenant—Unlawful Detainer—Notice to Quit— Necessity—-Tenancy Prom Year to Year-—Holding Over on Agricultural Lands. Under Rem. Code, § 813, authorizing an action of unlawful detainer in cases of tenancy upon agricultural lands where the tenant has held over for more than sixty days “without any demand or notice to quit hy his landlord or successor in interest,” any oral notice of termination of the lease and demand of possession at the expiration of the specified term, is sufficient to prevent the tenant from acquiring rights by holding over, and to authorize an action of unlawful detainer.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Mitchell, J., entered July 5, 1917, upon the verdict of a jury rendered in favor of the plaintiff, in an action for seduction.</p>

<p>Appeal from a judgment of the superior court for Snohomish county, Bell, J., entered September 5, 1917, upon findings in favor of the defendants, in an action for equitable relief, tried to the court.</p>

<p>Street Railroads—Regulation by Public Service Commission— Appeal—Review. The findings of the public service commission upon hearing a contest over street railway rates must be taken as true on appeal, where the evidence is not brought up.</p> <p>Same—Regulation by Public Service Commission — Franchise Conditions-—-Abrogation—-Power oe Commission—Statutes. Under Rem. Code, § 8626-53 of the public service commission law, which provides that the public service commission may determine and regulate just and reasonable rates, facilities, and service where the same is unjust or unreasonable or the fares or charges insufficient to yield a reasonable compensation for the service rendered, and may fix the same by order, does not authorize the public service commission to relieve from or abrogate provisions of a street railway franchise imposed by the city prior to the adoption of the public service law, and requiring the company to pave between its tracks, contribute to the cost of bridges and pay a -percentage of 'its gross receipts, and carry city employees free, under Rem. Code, § 7507, vesting the city with the whole of the state’s police power as to the use and control of its streets; notwithstanding the commission finds that the service is inadequate and the income of the company not sufficient to.pay a reasonable return on the property devoted to the public use; since the public service commission law does not expressly or by necessary implication confer power to deal with the question of franchises or to modify conditions previously imposed, and such intention is not indicated by the language of the act, or the history of the legislation, which shows a rejection of a proposed law granting such power.</p> <p>Carriers — Street Car Fare — Regulation by Public Service Commission—Statutes. Under the public service commission law, which provides (Rem. Code, § 8626-9) that fares shall be just, fair, reasonable and sufficient, and that every common carrier shall provide “adequate and sufficient service” and (Id., § 8626-53) that the public service commission shall have power to regulate fares and service, and determine and order the same where if unjust or unreasonable or the fares or charges are insufficient to yield a reasonable compensation for the service rendered, and (Id., § 8626-25) that no street railroad company shall charge or collect more than five cents for one continuous ride within the corporate limits, the public service commission has no power to increase the fare which a street railway company may charge within city limits to more than five cents, although that sum is found insufficient to pay a reasonable return on the property devoted to the public service and provide an adequate and sufficient service; since to harmonize the various provisions of the act, it must be construed as intending to give power to regulate rates so long only as it does not exceed the limit of five cents expressly fixed by § 8626-25 of the act.</p>

<p>Appeal from a judgment of the superior court for King county, Smith, J., entered December 2,1915, upon findings in favor of the defendants, in an action by an executor to recover property alleged to belong to the estate of a decedent, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Cowlitz county, Darch, J., entered December 21, 1916, upon findings in favor of the defendants, in.an action to establish the lien of a chattel mortgage as a prior claim against an insolvent estate, tried to the court.</p>

<p>■Master and Servant — Workmen’s Compensation Act — Extra Hazardous Employments—Legislative Definition. The legislature Laving, in Rem. Code, § 6604-3, of the industrial insurance act, defined the work of construction of telegraph and telephone plants as extra hazardous, the same is conclusive of the fact, especially since judicial notice cannot be taken to the contrary.</p> <p>Same. The legislature has the power to classify an occupation '■as extra hazardous unless the courts may take judicial notice that it is not hazardous.</p> <p>Pleading—Denial of Legislative Declaration. In an action to ■collect industrial insurance premiums, a denial that an occupation is extra hazardous is of no effect where it is a denial of the legislative declaration (Rem.- Code, § 6604-3) that telegraph construction ■ work is extra hazardous.</p> <p>Commerce —■ Workmen’s Compensation — Interstate Commerce. Employees engaged in the original construction of telegraph lines •are not engaged in interstate commerce, even though it be conceded that the telegraph company is engaged in interstate commerce.</p> <p>Master and Servant—Workmen’s Compensation—Exaction of Premiums—-Validity—“Tax.” It does not follow from the fact that a telegraph company is an agent of the United States through its acceptance of the provisions of act of Congress, July 24, 1866 (U. S. Rev. Stat., §§ 5263-5269), and the building of post roads, that the industrial insurance provisions for the compensation of employees in the construction of the system within this state is either a tax upon or an attempt to regulate the business of the company; since it could not have been intended that such companies owed no obedience to state laws; and since the imposition is part of the cost of construction and not a tax upon the industry nor in the nature of a license tax.</p> <p>Constitutional Law — Obligation of Contract — Master and Servant—Industrial Insurance. The industrial insurance act being valid as an exercise of the police power, it is not unconstitutional as impairing the obligation of preexisting contracts for the compensation of injured workmen.</p> <p>Master and Servant — Workmen’s Compensation — Interstate Commerce—Telegraph Operators—Statutes. The industrial insurance act for the compensation of workmen injured in extra hazardous employments does not apply to employees engaged in operating the system and handling interstate messages of a telegraph company, where a large per cent of the business of the company is interstate business and it is impossible to segregate or separate the time of employees engaged in interstate from those engaged in intrastate business; in view of § 6604-18 of the act, providing that the act in such a case, applies only to such persons to the extent that their mutual connection with intrastate work is clearly separable and distinguishable from interstate or foreign commerce.</p>

<p>Appeal from a judgment of the superior court for Skagit county, Brawley, J., entered January 2, 1917, upon findings in favor of the plaintiff, in an action in tort, tried to the court.</p>

<p>Evidence—Paeol Evidence—Execution of Conteact. Oral evidence tending to show that no contract was in fact entered into by defendant is not inadmissible as tending to vary .the terms of a memorandum of sale purporting to be signed by defendant’s agent, the issue being whether the agent was acting for defendant or a third person.</p> <p>Kbauds, Statute of — Memobandum of Sale-—Designation of Pasties. A memorandum of the sale of wheat signed by the seller, must designate the purchaser, in order to satisfy the statute of frauds.</p>

<p>Vendor and Purchaser—Contract—Rights of Purchaser—Option and Election—Construction. Under a contract for ten acres of land at the agreed price of $2,500, entitling the purchaser, after paying one-fourth or more of the price, to a deed for a proportionate part upon ceasing payments, “except that no fractional part of an acre.shall he deeded under this provision,” the purchaser, after having paid for more than one-fourth of the land, was entitled to as many acres as his money would pay for; and having been in default prior to the expiration of the contract, a demand by letter for an absolute deed for the acres paid for is a sufficient notice of his election under the option.</p> <p>Same. In such a case, the fact that the purchaser remained in possession of and cultivated the entire tract after the date of the expiration of the contract, does not amount to an election to tahe the entire tract or an abandonment or waiver of his rights under the option and election theretofore matured.</p>

, entered December 28, 1916, upon findings in favor of the plaintiff, in an action to cancel a deed, tried to the court.

<p>Appeal from a judgment of the superior court for Spokane county, Webster, J., entered April. 5, 1917, upon a trial and conviction of violating an ordinance requiring a license fee for the operation of automobiles for hire.</p>

<p>Evidence—Judicial Notice—Judicial Proceedings. Upon a contest in probate over claims and the distributive shares, the lower court takes judicial notice of its own records in the probate proceedings, and on appeal the supreme court may notice judicially all that the lower court may; hence a transcript of the probate proceedings is properly filed on appeal, as part of the appellant’s petition below.</p> <p>Wills—Election—Ratification of Will. One who takes specific devises under a will makes an election and cannot defeat collateral devises to others passing certain properties in fee or charge them with a trust, on the ground that the testatrix held it in trust for him under an agreement to will him all her property; and by offering the will as a valid testamentary disposition so far as it passes property to him, he ratifies it in its entirety.</p> <p>Trusts—Express ’Trusts—Parol Proof. Where an heir conveyed an interest in an estate to the deceased widow in consideration of the latter’s agreement to will all the estate to him upon her death, the trust, if any, was an express trust, which cannot be established by parol where it affects real property.</p> <p>Frauds, Statute of—Damages fob Breach of Contract Under Statute. Where an express trust under an oral contract to will real estate cannot be established by proof, under the statute of frauds, no damages can be awarded for breach of such contract.</p> <p>Executors and Administrators — Claims — Filing and Allowance—Bar—Waiver. The filing of a claim against an estate covering certain years, is not a waiver of all items of like character for different years not included, and allowance of the first claim does not operate as a former adjudication barring a second claim, filed within the time for presenting claims against the 'estate.</p> <p>■ Same—Claims — Sufficiency-—Pleading. A claim against an estate for services by a relative need not state facts overcoming the presumption that they were gratuitous, since the same precision is not required as in pleading.</p>

, entered May 24, 1917, upon granting a nonsuit, dismissing an action by lien claimants to recover a money judgment against the purchaser of lumber.

<p>Appeal from a • judgment of the superior court for Spokane county, Webster, J., entered May 24,1917, upon findings in favor of the plaintiff, in an action to dissolve a partnership, tried to the court.</p>

, entered November 21, 1917, dismissing a prosecution for the violation of an ordinance on appeal from a conviction in the police court.

<p>Habeas Cokpus—Custody op Child—Defenses. Where a divorced wife has for years continuously violated the order for the custody of a child, she is not entitled to be heard upon an application for a modification of the decree of divorce, affirmed by the supreme court, as a defense to a writ of habeas corpus to enforce ■compliance with the order.</p>

, entered September 29, 1917, in favor of the plaintiff, after a trial to the court upon an agreed statement of facts, in an action to cancel a tax.

<p>Appeal from a judgment of the superior court for Lincoln county, Sessions, J., entered March 20, 1917, denying the appointment of a guardian for an incomp¿tent person, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Yakima county, Grady, J., entered December 12, 1916, in favor of the plaintiff, in an action for an accounting, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Kennan, J., entered January 6, 1917, upon findings in favor of the defendants, in an action for an injunction.</p>

<p>Appeal from a judgment of the superior court for Whatcom county, Hardin, J., entered February 24, 1917, upon findings in favor of the plaintiff, in an action for divorce, tried to the court.</p>