Volume 107 — Washington Reports

<p>Appeal from a judgment of the superior court for Pierce county, Card, J., entered July 16, 1918, upon findings in favor of the plaintiff, in an action for the purchase price of stock.</p>

<p>Divorce (100, 104)—Custody of Children — Modification — Evidence as to Welfare. A decree of divorce awarding the custody of children of a grossly delinquent mother to the father, should not,, on the remarriage of both parties, be modified and their custody-awarded to the mother, where there is no question, from a material point of view,, that the father’s home is to be preferred for the welfare of the children, and the influence of the mother would be prejudicial to their best interests.</p>

, entered August 31, 1918, affirming, on certiorari, an order of the public service commission, establishing rates for gas service.

, entered September 28, 1918, approving the final account of an administrator and the decree of distribution, after a hearing before the court.

<p>Appeal from a judgment of the superior court for King county, Smith, J., entered September 6, 1918, upon findings in favor of the plaintiff, upon overruling a demurrer to the complaint and assessing damages, in an action for breach of contract.</p>

<p>Appeal from a judgment of the superior court for Yakima county, Holden, J., entered May 10, 1918, dismissing, on the merits, an action for a broker’s commission, tried to the court.</p>

<p>Negligence (22-1—24) — Imputed Negligence—Servants—Scope of Employment. In an action for injuries sustained at a railroad crossing through the concurrent negligence of the company and the driver of the car, it cannot be said, as a matter of law, that the driver, who was employed as a farm hand, was not acting in the course of his employment so that his contributory negligence would be imputable to his employer, where it appears that, although it was Sunday and he was taking a young lady for a ride, he stopped at the express office to procure an express package addressed to his employer, as he had done on other occasions without express direction to do so.</p> <p>Bailment (3) —Negligence (22-1—24)—Imputed Negligence— Servant or Bailee. Where a farm hand was, on Sunday, driving his employer’s automobile for his own pleasure, when it was struck at a railroad crossing, his relation was that of a bailee, and his own contributory negligence is not imputable to the owner and is no defense to an action against the company, although he was employed at “so much a month and had the use of the car.”</p> <p>Chadwick, C. J., dissents.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Blake, J., entered March. 5, 1918, upon findings in favor of the plaintiff, in an action on contract, tried on the merits to the court.</p>

<p>Abatement and Revival (11)—Another Action Pending—Demurrer. A complaint is not demurrable on tbe ground that another action is pending, where the fact does not appear on the face of the complaint.</p> <p>Judgment (227, 229) —Conclusiveness — Matters Not In Issue. Where, in a former action, the court denied relief on account of rents received prior to 1916 because not involved therein, the former judgment is not a bar to an action for rents for the year 1915.</p> <p>Tenancy in Common (7, 11-1)—Rents and Profits—Accounting. Where one tenant in common farmed parts of the land, claiming it as her own, excluding her cotenants and refusing to pay any part of the proceeds, she is liable to an accounting for the profits.</p> <p>Same (8)—Repairs and Improvements. Pending receivership litigation for the partition of common property, a tenant in common makes repairs and improvements at her peril, and cannot offset the same against an action for profits, where they did not enhance the value of the property.</p> <p>Judgment (222)—Conclusiveness—Matters Litigated and Determined. The liability of a tenant in common to share in the payment of a mortgage litigated and determined in a partition suit is concluded and cannot he again raised in an action for an accounting between the same parties.</p> <p>Tenancy in Common (7)—Rents and Profits. In an action for an accounting of profits received by a tenant in common who farmed the land, rentals should he based upon one-third of the crop, where that was the custom in that country for lands of that kind.</p> <p>Same (7). In an action for an accounting of profits received by a tenant in common who farmed the land, he should he required to account for a crop at the price at which it was actually sold.</p>

<p>Appeal from a judgment of the superior court for Yakima county, Taylor, J., entered August 5, 1918, upon findings in favor .of the defendant, in an action on a claim against an estate.</p>

, entered April 20, 1918, awarding to the plaintiffs the right to certain waters for irrigation, after a trial on the merits to the court.

<p>States—Priority op State as Debtor—Waiver—Liquidation by Bank Examinee—Statutes. Any right to a preference in the payment of claims against an insolvent bank which the state may have by virtue of its sovereignty or the common law of England.is lost, where no claim therefor was made by the state prior to the time when the state bank examiner took charge under Rem. Code, §§ 3303-1 to 3303-19, which abolishes receivership and places the administration of insolvent banks in the hands of the state bank examiner; especially in view of the fact that the law authorizing the deposit of state funds in banks makes no provision for a preference by the state.</p> <p>Banks and Banking (7)—Insolvency—Powers op Examiners— Preference Claims. Under Rem. Code, §§ 3303-1 to 3303-19, abolishing receiverships of insolvent banks and placing the administration in the hands of the state bank examiner, with power to determine the necessity and amount of assessments and to liquidate its affairs, the state cannot claim a preference on assets in the hands of the examiner, especially in view of § 3303-12, providing that, upon complete liquidation, proceeds shall be delivered to the stockholders, and the debtor bank is not revested therewith.</p>

, entered June 14,1917, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by an employee in loading bridge timbers.

<p>Appeal from a judgment of the superior court for Ferry county, Neal, J., entered October 29, 1917, upon findings in favor of the defendants, in an action to foreclose a deed as a mortgage, tried to the court.</p>

<p>Statutes (86)—Retroactive Operation—Divorce Statutes. Laws 1917, p. 353, authorizing a divorce where the parties are estranged and have lived separate and apart for eight years or more, must be given a prospective operation, and does not apply to estrangements which existed prior to the passage of the act.</p> <p>Statutes (68)—Legislative Construction—Retroactive Effect. An intent to make retroactive a divorce statute (Laws 1917, p. 353) authorizing a divorce where the parties are estranged and have lived separate and apart for eight years or more, is not shown by the fact that the legislature rejected an amendment inserting “after the year 1917.”</p> <p>Divorce (50-1)—Judgment — Conclusiveness. The denial of a divorce to a husband upon the ground that he was at fault and had caused the separation is conclusive and a bar to a second action by him upon the ground of estrangement and inability to live together.</p> <p>Divorce (67)—Suit Money—Amount. The allowances for suit money being largely discretionary, an allowance of $2,000 for the defense of an action in which the traveling expenses of defendant and her witnesses was more than $800, will not be disturbed.</p> <p>Chadwick, C. J., dissents.</p>

Cross-appeals from a judgment of the superior court for Skagit county, Brawley, J., entered April'8, 1918, upon findings in favor of the plaintiff, in an action for reformation and for an accounting, tried to the court.

<p>• Cancellation of Instruments (26)—Relief—Recovery of Damages. In an action for the cancellation of a deed upon the ground of failure of consideration, in which the prayer was for general relief, a court of equity may substitute a money judgment.</p> <p>Same (23%)—Evidence—Weight and Sufficiency. In an action for the cancellation of a deed, given in consideration of an agreement to convey other land of the same value, findings for the plaintiff are sustained, where the evidence of the parties as to the agreement was flatly contradictory, hut defendant could show no convincing reason for the deed and the circumstances did not indicate a gift.</p>

<p>Eminent Domain (48)—Taxation—Special Assessments. Since Const., art. 7, § 9, expressly limits the levy of special assessments for local improvements to property benefited, there can be no greater charge made than a sum equal to the benefits received; for otherwise there would be a taking of property without compensation in violation of art. 1, § 16 (Held obiter, on rehearing En Banc).</p> <p>Navigable Waters (2-1)—Waterway Districts—Assessments— Maximum Benefits—Interest—Bonds. Rem. Code, § 8192a, authorizing an assessment of land benefited for the entire cost of a commercial waterway, not exceeding the maximum amount of benefits to be received, the levy not to be over twenty-five per cent of the cost in any one year, does not authorize a levy to meet interest payments on bonds to be issued in addition to the maximum benefits found, in view of the fact that there is no provision for the payment of interest, and in view of Id., § 8199a, appropriating and pledging ’‘payment” of the bonds out of the maximum benefits stated and declared (Held obiter, on rehearing En Banc).</p> <p>Statutes (35-1)—Amendments—Title—Subject. The title to chapter 152, Laws of 1917, p. 616, relating to assessments and bonds of commercial waterway districts is sufficient, under Const., art. 2, § 37, providing that no act shall be amended by mere reference to its title and requiring the amendment to set forth the act amended at full length.</p>

Application filed in the supreme court April 9, 1919, for a writ of mandamus to compel the secretary of state to accept and file a petition for a referendum.

<p>Appeal from aa order and judgment of the superior court for King county, Gilliam, J., entered May 23, 1917, granting a new trial as to one defendant, and granting a dismissal, notwithstanding the verdict of a jury in favor of the plaintiffs, as to the other defendant, in' an action in tort.</p>

<p>Appeal from a judgment of the superior court for King county, Frater, J., entered November 22, 1917, upon sustaining a demurrer to the complaint, dismissing an action for libel.</p>

<p>Appeal from judgments of the superior court for Chelan county, Grimshaw, J., entered December 13, 1917, upon findings in favor of the defendant, dismissing consolidated actions to establish claims against an estate.</p>

, entered May 11, 1918, upon granting a nonsuit, dismissing an action for personal injuries sustained by a minor in hoarding a freight train.

, entered February 18, 1919, upon findings in favor of the petitioner, in proceedings to condemn a private way of necessity, after a hearing before the court.

<p>Indians (16, 17)—Cbiminai, Pkosecvtions—Jvbisdiction of State Covets. The state courts have jurisdiction to try for larceny, committed without the limits of allotted land, a tribal Indian of the quarter-blood who, under the Dawes act (3 Fed. Stat. Ann. 821), was a ward of the government and an allottee of lands in an Indian reservation which had been opened and restored to the public domain, subject to the reservations and allotments; since the reservation was no longer an Indian reservation and Congress has not attempted to enact criminal statutes dealing with acts committed by Indians outside the territorial jurisdiction of the United States.</p>

, entered March 8, 1918, upon findings in favor of the plaintiffs, in an action for specific performance, tried to the court.

<p>Application filed in the supreme court May 5, 1919, to fix the amount of a supersedeas bond, or for a writ of mandamus directing the superior court for King county, Konald, J., to allow and fix the amount of such bond.</p>

, entered June 22, 1918, upon the verdict of a jury rendered in favor of the plaintiff, in an action upon a life insurance policy.

<p>Appeal from a judgment of the superior court for Yakima county, Holden, J., entered May 27, 1918, dismissing an action to restrain the collection of an assessment, after a trial on the merits.</p>

, entered April 22, 1916, in favor of the plaintiff, upon overruling a demurrer to the complaint, in an action by a partner to recover money advanced to the partnership.

• Appeal from a judgment of the superior court for Pierce county, Easterday, J., entered January 5, 1918, upon findings in favor of the plaintiff, in an action of unlawful detainer, tried to the court.

<p>Appeal from a judgment of the superior court for Spokane county, Blake, J., entered January 31, 1918, upon findings in favor of the defendant, in an action for divorce, tried to the court.</p>

, entered November 7, 1918, in favor of the plaintiff, upon overruling a demurrer to the complaint, in an action to compel the issuance of salary warrants for legal services rendered a school district.

<p>Mines and Minerals (17)—Coal Lands—Lease—Forfeiture— Waiver. A coal mine lease, calling for payment of royalties on all coal mined and giving the lessor the right of oversight and inspection of operations, cannot he forfeited for waste in using coal for ballast, if the lessor permitted the lessee to mine coal for ballast and exclude the same from the royalty account; at least, not until specific demand had been refused.</p> <p>Same (17)—Coal Lands—Lease—Breach. Where a coal mine lease pledged the property as security for the payment of rental, the filing of labor liens against the property is not such a breach as would warrant forfeiture of the lease, especially where the liens have been fully paid.</p> <p>Equity (19)-—Mines and Minerals (17)—Forfeitures — Coal Mine Lease. While equity may forfeit a coal mine lease for default in the payment of a few month’s royalties, it will leave the lessor to his remedy at law, where the amount involved was small, the lease had a long time to run, valuable improvements had been made, and the default was due to a mistake in the lessee’s construction of the contract.</p>

<p>Certiorari to review an order of the superior court for Spokane county, Blake, J., entered January 31, 1919, abating an action as against the estate of an intestate.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Card, J., entered December 7, 1918, upon the verdict of a jury rendered in favor of the plaintiff, in an action for malicious prosecution. Affirmed.</p>

<p>Highways (62, 67) —Obstructions—Lights and Barriers—Question por Jury. Where an obstruction of a highway existed where a great many automobiles passed at considerable speed, the county was under obligation to so place and protect lights that they would not be liable to be destroyed by passing automobiles; and whether it did so was a question for the jury where lights placed by the county had been twice destroyed a short time preceding plaintiff’s injury; and it was error to decide the question as á matter of law.</p> <p>Appeal (111)—Preservation op Grounds—Objections Not Presented Below. In an action against a county, objections to the sufficiency of the notice of claim not presented below cannot be considered on appeal.</p>

<p>Appeal (386, 387)—Review—Waiver op Error. The waiver of a motion for new trial does not carry with it and condone whatever errors might have been considered under it, where they were raised and insisted upon under appellant’s motion for judgment notwithstanding the verdict.</p> <p>Insurance (10, 12)—Agents—Relation—Evidence. A letter in answer to an inquiry from a local insurance firm, quoting marine insurance rates on a prospective risk and expressing a hope to receive the order, does not constitute the local firm agents with power to cover the risk.</p> <p>Same (12, 13)—Agents—Authority. A letter offering to protect a shipment and issue a policy of marine insurance if advised of the name of the shipper, amount, cargo, boat, date, etc., written to a local insurance firm, does not authorize the firm to receive the premium and protect the shipment by an agreement for a policy.</p> <p>Same (30)—Policy—Executory Agreement—-Marine Insurance. A letter from insurance agents to a local insurance firm, offering to protect a prospective shipment and issue a policy of marine insurance, if advised of the name of shipper, amount, cargo, boat, date, etc., does not constitute a contract for insurance, although the local firm receipted for the premiums, where the shipment was lost before the data called for was received by the insurance company’s agents.</p> <p>Same (10-12)—Agents—Relations—Powers. Upon an issue as to whether a local insurance firm, not agents of the insurer, was authorized, by correspondence, to protect a shipment or agree to the issuance of a policy of marine insurance, the insured, dealing with the firm at his peril, has the burden of proof, and cannot establish the agency by the evidence of the alleged agent, but must be considered to have read each of the communications as they took place.</p>

<p>Eminent Domain (29)—Property Subject — City Property. Since the right of eminent domain does not exist by implication but must be expressly given by statute, a county has no right to condemn, for a county road, city property either within or without the city limits; notwithstanding Rem. Code, § 5879-18, giving counties the right to condemn lands in a city for the construction of permanent highways, the act not authorizing the condemnation of property of the city.</p> <p>Same (29). The fact that property of a city is not now all being devoted to a public use does not authorize its condemnation by another public corporation.</p>

<p>Witnesses (44)—Competency—Transactions With Person Since Deceased. Evidence that a written statement given by deceased to witness had been lost, is not inadmissible as testimony of a transaction had with the deceased, where it was introduced to establish the existence of the contract.</p> <p>Husband and Wife (60, 65)—Gifts (8)—Community Property— Evidence—Sufficiency. Evidence that a husband delivered stock to his wife with the intent of making a gift, and that she received and continued to keep it in her possession and exercised and claimed ownership, sustains the burden of proving that it was voluntarily made and that the stock became her separate property.</p>

<p>Appeal from a judgment of the superior court for King county, Smith, J., entered April 27, 1918, upon a trial and conviction of grand larceny.</p>

<p>Appeal from a judgment of the superior court for King county, Tallman, J., entered April 26,1918, upon granting a nonsuit, dismissing an action for conversion, tried to the court.</p>

<p>Appeal from a judgment of the' superior court for King county, Ronald, J., entered June 26, 1918, upon findings favorable to the defendant, in an action for equitable relief, tried to the court.</p>

<p>Appeal (418) — Review — Findings. Findings upon conflicting testimony given mostly in person will not be disturbed on appeal where the evidence does not clearly preponderate against them.</p>

<p>Appeal from a judgment of the superior court for King county, Hall, J., entered December 6, 1918, upon the verdict of a jury rendered in favor of the plaintiff, in an action on contract.</p>

<p>Master and Servant (110-112)-—■ Contributory Negligence—■ Known Dangers. An experienced farm hand, familiar with the conditions, cannot recover for injuries sustained where, after due consideration, he attempted to drive a horse and wagon under an elevated pipe, mistakenly judging that there would be sufficient clearance when, as he approached it, he could have protected himself by ordinary care and observation.</p> <p>Trial (31, 32)—Reopening Case. In an action for injuries sustained in driving under an elevated pipe where there was not sufficient clearance, it is not an abuse of discretion to refuse to open the case for further evidence and continue the hearing to show the height of the pipe.</p>

<p>Appeal (288) —Statement of Facts — Extension of Time foe Filing—Excuse foe Delay. Failure to file a statement of facts within thirty days is excused, and an application for an extension of time, made within the sixty days when an appeal could have been taken, should have been granted, and a proposed statement filed within the ninety days permitted by an extension should have been received and certified, where appellant’s attorney was quarantined at his home during an epidemic and thereby prevented from acting earlier.</p> <p>Same (288, 311)—Statement of Facts—Extension of Time— Compelling Allowance. Under Rem. Code, § 1730-8, appellant, erroneously refused an extension of time for filing a proposed statement of facts, may proceed by motion in the supreme court to obtain an extension of time and direction to the lower court to certify a statement; or such motion will be considered as an application for a writ of review.</p>

<p>Proceeding filed in the supreme court December 3, 1918, for the disbarment of an attorney, upon findings of the state board of law examiners.</p>

Appeal by defendants from a judgment of tbe superior court for Grant county, Hill, J., entered February 26, 1918, awarding damages in condemnation proceedings, after a trial to tbe court and a jury.

<p>Municipal Corporations (380, 389)—Streets—Automobiles—Vio-lation op Ordinance—Evidence. The driver of an automobile, driving on the wrong side of the street contrary to law, who struck a passenger alighting from a street car, cannot claim an emergency excusing his act, where it appears that the accident was due to his own negligence in approaching the street intersection under the erroneous assumption that the street car was not going to stop at its regular stopping place.</p> <p>Same (379, 389). In such a case, the emergency does not excuse his negligence in operating his automobile with the brakes out of order, when otherwise he could have stopped in time to have avoided the accident, since he was bound to anticipate the necessity of emergency stops and keep his brakes in order.</p> <p>Appeal (413)—Review—Verdicts. The verdict of a jury in a personal injury case will not be set aside as excessive if supported by plaintiff’s evidence.</p> <p>Pleading (192, 196, 202)—Waiver op Objections—Trial Without Reply. The failure to deny an answer alleging contributory negligence is waived where the case was tried out on the merits as if issue had been duly joined without any timely objection.</p>

, entered September 23, 1918, upon findings in favor of the plaintiff, setting aside an award for personal injuries and directing the payment of a greater sum, upon appeal from the ruling of the industrial insurance commission.

<p>Guaranty (9)—Construction—Agency Contract—Scope and Extent op Liability. There was no sale by the agent, within the meaning of an agency contract for the sale of goods whereby the agent guaranteed credits extended, where the agency contract forbade credit exceeding $1,500, and required the agent to recoup the principal for all losses in excess of three-fourths of one per cent, and it appears that, upon the agent’s request for authority to make a.“close out sale” to a certain customer greatly exceeding the credit limitation, the principal held the matter up pending its own investigation of the credit and finally wired the agent to deliver the goods.</p>

<p>Adpeal (473)—Review—Law op Case. The facts on a second trial being the same as on the former trial, the decision on the former appeal becomes the law of the ease.</p> <p>Libel and Slandeb (16, 35)—Exceeding Privilege—Evidence— Sufficiency. Charges by an insurance auditor and cashier that a cash clerk of an insurance company had stolen money, made at an interview with the clerk at which the father was present, are only qualifiedly privileged, and whether the statement was bona fide or malicious is a question for the jury, notwithstanding the defendant’s officers testified positively that there was no malice and that they spoke and acted in good faith for the welfare of the company, where the charge was not confined to the admitted fact that the clerk was short a small sum in his accounts, it appeared that others in the office might have stolen the money from his cash drawer, a close cross-examination of plaintiff did not detract from his straightforward and convincing evidence, and thereafter other like slanderous statements were made to other parties.</p> <p>COBPOBATIONS (190)-REPRESENTATION BY AGENTS—SLANDER. An insurance corporation is liable for a malicious slander uttered by its auditor and cashier charging a cash clerk with stealing, made upon inspecting and checking up his accounts, the same being within the scope of their employment.</p> <p>Libel and Slander (53)—Instructions. In an action for slander, in which there was evidence that the defendant’s Qfficers had exceeded their privilege in charging a cash clerk with stealing, no just complaint can be made of submitting the question of exceeding the privilege, requiring the plaintiff to show malice, and if the privilege was exceeded and malice shown, authorizing the jury to fix the damages, but allowing no special damages for loss of employment in the absence of any evidence thereof.</p> <p>• Same (36)—Damages—Measure. In an action for slander, in charges by a life insurance company that its cash clerk had stolen money, made to his father, in excess of privilege and repeated to others, the repetition and republication may be considered as to the question of malice and in aggravation of compensatory damages.</p> <p>Same (37)—Damages—Mental Suffering. In an action for slander, in charges by a life insurance company that its cash clerk had stolen money, the words being actionable per se without reference to plaintiff's business or professional character, he is entitled to recover for mental suffering.</p> <p>Same (38)—Damages—Amount. A verdict for $6,000 reduced by the trial court to $3,000 for slander by an insurance company in charging its cash clerk with stealing, is not excessive.</p>

<p>Taxation (225-229) —Inheritance Taxes — Computation — Statutes. The inheritance tax law, Rem. Code, § 9182, and § 9183, as amended by Laws 1917, p. 196, making classifications which require the relationship of each legatee to be considered in order to determine the rate, was intended to tax the right to receive by inheritance as distinguished from a tax upon the property or the right to transmit it; hence each legacy must be considered as a separate entity and taxed as such at the statutory rate.</p>

<p>Appeal from a judgment of the superior court for King county, Allen, J., entered December 21, 1918, upon granting a nonsuit, dismissing an action of unlawful detainer.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Fletcher, J., entered April 7, 1919, upon sustaining a demurrer to the complaint, dismissing an action by a receiver to avoid an alleged preference obtained by a creditor of an insolvent corporation.</p>

<p>Appeal from a judgment of the superior court for King county, French, J., entered May 10,1918, arresting a judgment of conviction and vacating the verdict, in a prosecution for a misdemeanor.</p>

<p>Appeal from a judgment of the superior court for King* county, Smith, J., entered September 14, 1918, in favor of the plaintiffs, in an action for equitable relief, tried to the court.</p>

<p>Usury (13) —Recovery of Usury Paid — Effect of Payment. A mortgagor wb.0 deeds the mortgaged property in satisfaction of a usurious mortgage note is not estopped, by making such payment, from maintaining an action to recover the usurious interest exacted.</p> <p>Same (14, 17)—Value of Property Taken—Pleading and Proof. In an action to recover usurious interest exacted, after plaintiff deeded property to the defendant in satisfaction of the amount demanded, $5,211.60, an answer denying that the property was worth any sum in excess of $5,000, admits it was of that value; and it having been taken in satisfaction of the demand for $5,211.60, such sum must be assumed to be the value of the property at that time.</p>

superior court for King county, Konald, J., entered. January 27, 1919, upon findings in favor of the plaintiff, in an action of replevin, tried to the court.

<p>Attorney and Client (7, 7-1)—Disbarment—Grounds. An attorney is guilty of misconduct for which he should he disbarred, where he settled and dismissed an action, receiving $5,000 which he misappropriated and retained for years without disclosing the settlement.</p>

<p>Appeal from orders of the superior court for King county, Smith, J., entered November 24 and June 1, 1917, and from an order entered February 8, 1918, quashing a writ of garnishment.</p>

<p>Intoxicating Liquors (42)—Information—Previous Conviction of Defendant—Statutes. The initiative prohibition act, Rem. Code, § 6262-32, authorizing increased punishments on subsequent convictions and requiring prosecuting attorneys to allege a previous conviction in the information, is a proper police regulation to discourage violations of the law, and not open to the objection that it deprives the accused of a fair trial.</p> <p>Criminal Law (460)—Punishment—Subsequent Offenses. In a second prosecution under the initiative prohibition act, the jury is properly instructed to find whether accused was formerly convicted, in order to empower the court to impose the increased punishment.</p> <p>Same (332)—Verdict—Recommitment. Where the verdict is incomplete, failing to find as to a previous conviction, the court may recommit the verdict to the jury with proper instructions.</p> <p>Same (373, 460) — Judgment—Conclusiveness—Second Conviction. Under the initiative prohibition act, authorizing increased punishments for subsequent convictions, a former conviction under the act is conclusive and may not be collaterally attacked by showing that the accused was not guilty.</p>

<p>Municipal Corporations .(190, 194)—Damages—Removal op Lateral Support—Defenses. It is no defense to an action against a city for damages to abutting property through a regrade of a street, removing plaintiff’s lateral support, that plaintiff petitioned for the improvement, and evidence thereof would have been error tending to confuse the jury on the subject of the damages.</p> <p>Same (190, 197). — Damages — Removal of Lateral Support — Evidence—Admissibility. In an action against a city for damages to abutting property through the regrade of a street removing plaintiff’s lateral support, it is inadmissible for the city to show its intention and future plans for taking care of the situation or to allow expert real estate witnesses to answer questions based thereon.</p> <p>Evidence (214)—Opinions—Basis of. It is improper to ask experts hypothetical questions based on theoretical conjecture of the witnesses.</p> <p>Trial (55-2)—Taking Case Prom Jury — Particular. Issues. Where no evidence is given to support an affirmative defense, it should be withdrawn from the consideration of the jury.</p>

<p>Appeal from a judgment of the superior court for King county, Smith, J., entered November 13, 1918, modifying a decree of divorce as to the custody of a child, after a trial to the court.</p>

<p>Appeal from' a judgment of the superior court for King county, Jurey, J., entered November 26, 1918, upon the verdict of a jury rendered in favor of the plaintiff, in an action in tort.</p>

<p>Schools and School Distkicts (35) —Bonds-—Notice of Election—Sufficiency. The requirement of Rem. Code, § 4667, as to published notice of school elections is but directory, and notwithstanding notice was published only two days instead of three, it will not invalidate an election,'Where it appears from the publicity given it that the voters had ample notice and the result of the election was not affected.</p>

<p>Indictment and Information (74)—Duplicity—Ways ob Means of Committing Offense—Larceny by False Pretenses. An indictment for aiding and abetting in obtaining $130 by false pretenses is not duplicitous in that it shows that the money was obtained by forging and presenting to the county thirteen false or invalid claims for ten dollars each, the averment as to the obtaining of money being single.</p> <p>Appeal (263)—Record—Statement of Facts. In the absence of statement of facts or bill of exceptions, the supreme court cannot pass upon any question as to the instructions.</p>

, entered September 20, 1918, directing the delivery of property to the sheriff for sale on execution, in garnishment proceedings.

<p>Municipal Corporations (390)—Automobile Collision—Cause of Accident—Question for Jury. Whether the negligence of the defendant in maintaining an unlawful obstruction on the street was a contributing cause to the injury of a bystander, when two automobiles collided at a street intersection, is a question for the jury, where one of the drivers in collision testified that boxes piled by the defendant at the curb obstructed his view.</p> <p>Negligence (14, T5)—Proximate Cause. An act to be the proximate cause of the injury must be a cause but for which the injury would not have been suffered.</p> <p>Municipal Corporations (384, 392)—Negligence (15)—Proximate and Concurring Cause—Instructions. Where the drivers of two colliding automobiles, and a storekeeper who had obstructed the view by piling boxes at the street intersection, are all three charged with concurring negligent acts, each charged to be the proximate cause of an injury to a bystander, and the evidence that the obstruction contributed to the injury is not satisfactory, it is error to refuse a requested instruction to the effect that the obstruction would not be a proximate cause if the injury would have resulted without the concurrence of the obstruction; under the rule that an act to be the proximate cause of an injury must be a cause “but for which” the injury would not have been suffered.</p>

<p>Appeal from a judgment of the superior court for King county, Tallman, J., entered April 18,1918, upon the verdict of a jury rendered in favor of the plaintiffs, in an action on a fire insurance policy.</p>

, entered January 21,1918, upon the verdict of a jury rendered in favor of the plaintiff, in an action for wrongful death.

<p>Appeal from a judgment of the superior court for King county, Prater, J., entered July 1, 1918, upon findings in favor of the plaintiff, in an action for equitable relief, tried to the court.</p>

<p>Witnesses (45)—Competency—Transactions With Person Since Deceased. Rem. Code, § 1211, forbidding testimony as to any transaction had with a person since deceased, does not exclude evidence as to whether a deed contained an interlineation of the deceased’s name as grantee at the time it was executed, the deceased not having been present at the time of the transaction.</p> <p>Alteration oe Instruments (6, 12)—Deeds—Time of Alteration—Evidence—Effect on Title of Grantee. The presumption that an interlineation in a deed was made before execution is overcome by the positive testimony of one of the grantors that it was made afterwards, together with the appearance of the deed itself, so indicating.</p> <p>Same (8)—Consent of Parties. After delivery of a deed, an alteration, inserting the name of an additional grantee, has no effect upon the grantee’s title, even though it be with consent of the parties, in the absence of evidence that the deed was redelivered.</p> <p>Estoppel (20-23)—Prejudice to Person Setting Up Estoppel. The grantee in a deed, which was recorded with an interlineation naming a woman as his wife as an additional grantee, is not estopped to assert sole title by the fact that he lived on the premises with the woman as his wife, and permitted her to occupy and use it as a home during his absence; nor by the Tact that the two joined as husband and wife in a mortgage upon the premises to secure part of the purchase price; as it does not appear that she was misled to her prejudice.</p> <p>Husband and Wife (47)—Community Pbo-bebty—Existence of Community. Property acquired by a man and woman not married, but living together as husband and wife, is not community property, and, in the absence of any trust relation, belongs to the one in whose name the legal title stands.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Chapman, J., entered May 11, 1918, in favor of the plaintiff, in an action upon a beneficiary certificate, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Blake, J., entered June 24, 1918, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for fraud.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Clifford, J., entered August 8, 19Í8, upon the verdict of a jury rendered in favor of the plaintiff, in an action to recover over the amount paid in satisfaction of a judgment for personal injuries sustained by a longshoreman.</p>

<p>, Appeal (48)—Decisions Review able—Pinal Orders. An order striking an answer of one of tbe defendants is not appealable because it is not a final order witbin tbe contemplation of Rem. Code, § 1716.</p> <p>Husband and Wife (88)—Community Property—Actions—Right of Wife to Defend. In an action for damages for breach of a contract made by a husband for tbe sale of personal property, tbe wife is not entitled to separately answer and show that tbe property was ber separate property, where no judgment was sought against ber individually or affecting ber separate estate.</p> <p>Appeal (148)—Exceptions to Conclusions. It is not necessary to take exceptions to conclusions of law.</p> <p>Partnership (55)—Actions—-Certificate of Assumed Name. Objections to a codefendant’s maintenance of a cross-complaint upon a contract made by him in an assumed name, without tbe precedent filing of tbe certificate as to assumed names, as required by Rem. Code, § 8369, is not available to one who consented to tbe introduction of tbe certificate in evidence.</p>

<p>Infants (4)—Custody of Delinquents — Proceedings. Rem. Code, § 2312, requiring the dismissal of prosecutions where the accused is not brought to trial within sixty days, applies only to criminal prosecutions, and not to proceedings against a delinquent child, under Rem. Code, § 1987-1, par. 6, of the juvenile act.</p> <p>Same (4)—Proceedings—Power of Court—Habeas Corpus. The superior court, sitting for the hearing of a writ of habeas corpus in behalf of a minor charged to be a delinquent child, has power to act as a court in juvenile matters and may treat the application as a motion for a change of custody.</p>

, entered October 24, 1918, granting a new trial, after the verdict of a jury rendered in favor of the defendant, in an action in tort.

<p>Continúan ce (22)—Absence of Witness—Admission to Pkevent Continuance. Under the express provision of Rem. Code, § 2135, a continuance on account of the absence of a witness, is properly denied where the prosecuting attorney admitted that the witness would testify, as claimed, the same as upon a former trial and such testimony was read to the jury.</p> <p>Intoxicating Diquobs (48, 50)—Unlawful Possession — Evidence—Sufficiency. Under Rem. Code, § 6262-23, making possession of more than two quarts of intoxicating liquors prima facie evidence that it was kept for unlawful sale or disposition, proof of the possession of twenty-three quarts of whiskey raises a question for the jury, notwithstanding defendant testified to its lawful acquisition and that it was kept for his personal use.</p> <p>Same (51)—Offenses—Instructions. In a prosecution for illegal possession of intoxicating liquors, an instruction that there could be no conviction if the accused had an illegal quantity in his possession which he intended to be drunk by himself and guests at his private apartments is favorable to the accused.</p>

<p>Bankruptcy (18)—Actions by Trustee—Right to Sue. A trustee in bankruptcy may maintain an action to set aside a foreclosure and sale of tbe bankrupt’s property, made prior to tbe filing of petition in bankruptcy, where the same was in fraud of the bankrupt’s creditors, although the bankrupt did not oppose the sale.</p> <p>Chattel Mortgages (48-3, 49)—Possession oe Property and Disposition oe Proceeds. A mortgage of a stock of goods is valid, although it leaves the mortgagor in possession with power to sell in the course of trade under an agreement to apply a portion of receipts to a discharge of the mortgage indebtedness.</p> <p>Bankruptcy (7) •—• Fraudulent Transfers — Evidence — Sufficiency. The evidence does not sustain findings of conspiracy and fraud by • chattel mortgagees to the detriment of the bankrupt mortgagor’s creditors, where it merely appears that they did not enforce payment according to the terms of the mortgage, and extended the time of maturity.</p> <p>Chattel Mortgages (69, 72)—Payment—Defenses—Burden of Proof. A chattel mortgage on a stock of goods having provided that monthly payments should be applied to the discharge of the mortgage indebtedness, the burden of proof of an oral agreement that the same might be applied on rent due from the mortgagor to the" mortgagee is upon the mortgagee.</p> <p>Same (69, 72)—Payment — Application — Rights of Parties. A chattel mortgage on a stock of goods having provided that monthly payments should be applied to the discharge of the mortgage indebtedness, and there being no oral agreement that they be applied on rent due from the mortgagor to the mortgagee, the mortgagee had no right to so apply them.</p> <p>Bankruptcy (6, 7)—Fraudulent Transfers—Rights of Trustee. Where payments made were sufficient to discharge the bankrupt’s chattel mortgage, a foreclosure sale thereunder is unlawful and void as to the trustee in bankruptcy and creditors of the mortgagor.</p> <p>Same (7,18.)—Actions by Trustee—Judgment—Surplus. Chattel mortgagees having unlawfully foreclosed the mortgage and disposed of the property of the bankrupt mortgagor, cannot object to judgment in favor of the trustee in bankruptcy for the value of the property, on the ground that it exceeds the amount necessary to pay all claims, where the judgment provides that any surplus left after discharge of all obligations should he paid over to them.</p>

, entered November 12, 1918, upon findings in favor of the plaintiffs, in consolidated actions for equitable relief, tried to the court.

<p>Sales (10, 12)—Oeeer and Acceptance—Certainty—Contracts by Correspondence. Where the seller answered an inquiry of buyer wanting star shingles at $2 per thousand, by saying that it had sold out all its star shingles, but “quote two fifteen additional business,” the expression is too uncertain to be the basis for a binding contract.</p> <p>Same (10, 12)—Where the seller answered an inquiry of buyer wanting five car loads of star shingles at $2 per thousand by saying that it had sold out all its star shingles, but “quote two fifteen additional business,” to which the buyer replied asking seller to book it for five cars at $2.15 per thousand, and “advise by return wire how soon can ship,” to which no reply was made, there was no agreement as to the number of cars or time or place of shipment, and no closed contract.</p>

<p>Appeal from a judgment of the superior court for Snohomish county, Pemberton, J., entered September 27, 1917, upon the verdict of a jury rendered in favor of the defendant, in an action in tort.</p>

, entered February 13, 1919, granting a writ of mandate to compel the issuance of salary warrants to the commissioners of the port of Seattle.

<p>Appeal (173)—Time for Taking—Commencement op Period. The time for taking an appeal commences to run from the time the judgment is filed and marked filed and entered on the appearance docket, and not from the date of its actual recording.</p> <p>Appeal (498)—Recall op Remittitur—Jurisdiction. Where the supreme court did not acquire jurisdiction because the appeal was not taken within ninety days, the remittitur may be recalled to hear a motion to dismiss, filed but not properly presented to the court at the time set for hearing.</p>

<p>Application filed in the supreme court June 27,1919, for a writ of prohibition to the superior court for Pierce county, Clifford, J., to prevent certain acts in receivership proceedings.</p>

<p>Receivers (18)—Appointment — Notice — Necessity. The appointment of a permanent receiver for an insolvent corporation without notice is without justification and void, whether appointed prior or subsequent to judgment.</p> <p>Same (18)—Notice—Sufficiency. The service of a writ of garnishment upon a corporation does not dispense with or take the place of notice of application for the appointment of a receiver of the corporation, after judgment against it.</p>

<p>Appeal from a judgment of the superior court for Kitsap county, French, J., entered August 16, 1918, in favor of the defendant, in an action of replevin, tried to the court.</p>

<p>Cross-appeals from a judgment of the superior court for King county, Konald, J., entered December 23, 1918, upon findings in favor of the plaintiff, in an action on contract, tried to the court.</p>

<p>Appeal from a judgment of the superior court for King county, Allen, J., entered November 19, 1918, upon findings in favor of the plaintiff, in an action in tort.</p>

<p>Divorce (8)—Grounds—Inability to Live Together. Where a wife was quarrelsome and such incompatibility of temperament existed between the parties that they could no longer live together as husband and wife, the court properly granted a divorce to the husband.</p> <p>Same (80)—Division of Property. Upon granting a divorce, the wife should not be restricted to a mere life interest in the home subject to taxes and upkeep which might be more than its use would be worth, but should be given the fee.</p> <p>Same (80). Upon granting a divorce, the proceeds of an advantageous contract, made after marriage, under which the husband was to receive large dividends from the operation of a mine until 1920, should he regarded as community property and the wife should have a half interest therein; but whether the contract will be renewed rests upon speculation, and the proceeds under any such renewal would be his separate property and should not be considered in the division.</p>

<p>Taxation (142)—Sale—Who Mat Purchase—Certificates of Delinquency. Under Rem. Code, § 2334, making it a misdemeanor for any public officer to be beneficially interested in any contract or purchase made by him, it is against public policy for a county treasurer, while in office, to purchase tax certificates of delinquency to be issued by his office; and a tax foreclosure thereon will be set aside, notwithstanding final steps to procure title were not taken until after his term of office had expired.</p> <p>Same (140)—Sale—Notice—“Recoed” Owner. Notwithstanding a tax certificate foreclosure may be maintained against the owner named on the tax rolls, the county treasurer must, by the express provision of Rem. Code, § 9260, notify the “record owner” of the property of the pending sale; “record owner” being employed in its usual and common meaning.</p>

<p>Appeal from a judgment of the superior court for Franklin county, Truax, J., entered October 8, 1917, upon findings in favor of the plaintiff, denying an injunction to restrain the sale of real property on execution, tried to the court.</p>

<p>Master and Servant (172-174-1)—Injury to Third Persons — Scope op Employment. A special watchman, employed to protect the property of patrons of an agency and night patrol system, acted outside of the scope of his employment, as a matter of law, when he left his beat and the property of his employers and entered upon a chase not connected with his work, to aid a regular police officer of the city, and shot and killed the person whom he was attempting to apprehend; and his employers, being in no way concerned in the affair, would not be liable for his act.</p>

<p>Applications for writs of mandamus, filed in the supreme court June 18, 1919, to compel the state auditor to issue warrants in payment of expenses incurred by tbe industrial code commission.</p>

<p>Waters and Water Courses (98)—Irrigation — Contract for Water—Performance. An irrigation company’s contract to deliver water is not breached where it was ready to deliver the water, but the owner had failed to designate any point for delivery and had not prepared his land to receive it.</p> <p>Same (102)—Damages (117)—Evidence—Sufficiency. Damages for failure to furnish water for irrigating an orchard cannot be left to speculation and conjecture, and a verdict without definite proof cannot be sustained.</p>

<p>Death (9)—Right of Action—Defenses—Contributory Negligence of Deceased. Rem. Code, § 183, giving to heirs a right of action for the death of a person caused by the “wrongful act or neglect” of another, refers to wrong or neglect as against the deceased; hence no recovery is given where the deceased was guilty of contributory negligence.</p> <p>Husband and Wife (86,- 87)—Community Property—Right of Action—Personal Injuries—Defenses. The community of husband and wife being a legal entity in which title to property acquired is vested, the right of recovery for personal injuries is in the community alone and the contributory negligence of the husband is the negligence of the community.</p> <p>Death (9)—Right of Action—Defenses—Contributory Negligence of Deceased. In an action for wrongful death, the contributory negligence of the husband, resulting in the instantaneous death of both husband and wife, is the contributory negligence of the community and hence precludes recovery by the heirs for wrongful death of the wife as well as the husband.</p> <p>Tolman, X, dissents.</p>

<p>Appeal from a judgment of the superior court for King county, Frater, J., entered September 28, 1918, upon a trial and conviction of violating the state-wide prohibition law.</p>

<p>Appeal from an order of the superior court for King county, Frater, J., entered December 18,1918, in favor of the defendant, quashing writs of garnishment, after a hearing before the court.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Card, J., entered January 29, 1918, upon a trial and conviction of unlawfully driving an automobile.</p>

, entered November 25,1916, in favor of the defendant, dismissing on the pleadings an action to recover premiums due under the provisions of the industrial insurance act.

<p>Appeal from a judgment of the superior court for King county, Frater, J., entered December 3, 1918, in favor of the state tax commissioner, in an action to determine the method of computing an inheritance tax, tried to the court.</p>

, entered April 22, 1918, upon the verdict of a jury rendered in favor of the plaintiffs, in an action on a fire insurance policy.

, entered April 22, 1918, upon the verdict of a jury rendered in favor of the plaintiffs, in an action on a fire insurance policy.