Volume 80 — Washington Reports

<p>Appeal—Record—Abstracts—Necessity. The provision of 3 Rem. & Bal. Code, § 1730-1, requiring the appellant, at or before the time when he is required by rule or statute to serve his opening brief, to cause to be typewritten and served upon the opposite party an abstract of so much of the record and statement of facts as he deems necessary to the hearing, is a mandatory step in the appeal; and if the abstract is not served within the time limited, the appeal must he dismissed (Fullerton, J., dissenting).</p>

, entered February 3, 1912, vacating proceedings before a justice of the peace in a criminal prosecution, on the hearing upon a writ of certiorari.

, entered March 1, 1913, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained in a collision with an automobile.

, entered. June 12, 1913, upon the verdict of a jury rendered in favor of the plaintiff, in an action for damages through the destruction of property by fire.

<p>Appeal from a judgment of the superior court for Spokane county, Sullivan, J., entered June 23, 1913, upon the verdict of a jury rendered in favor of the defendants, in an action of ejectment.</p>

<p>Hawkers and Peddlers—Definition—Solicitation by Samples. One who solicits the sale of goods hy sample, in a house to house canvass, and later fills the orders by delivery from a house where he had assembled the orders from goods shipped to him, is a “peddler,” both at common law, and within an ordinance for the licensing of peddlers which provided that a peddler selling from samples and maintaining a supply depot within the city shall be deemed a peddler.</p>

<p>Carriers—Injuries to Passengers—Taking on Disabled Passengers—Sudden Stops—Proximate Cause. Where a street car was started before a passenger, walking with crutches, had time to get a seat, and he was thrown to the floor by an emergency stop which was necessary to avoid injury to a person on the crossing, the starting of the car before the passenger was seated was the proximate cause of his injury.</p> <p>Same—Taking on Disabled Passengers-—Sudden Stops—Negligence—Question for Jury. The negligence of a street railway company in starting a car before a passenger, walking with crutches, could take a seat, is for the jury, where he was thrown to the floor by an emergency stop to avoid injury to a person on a crowded city crossing.</p> <p>Damages—Personal Injuries—Excessive Verdict. A verdict for $4,000 for injuries to a disabled knee, twice previously injured and already in a chronic tubercular condition, is excessive, and should be reduced to $2,500.</p>

<p>Appeal—Decisions Reviewable—Cessation oe Contbovebsy. An appeal from the dismissal of an action to restrain the county commissioners from re-letting a contract for highway construction, and from interfering with the plaintiff in the performance of a contract let to it for the same work, will he dismissed on account of cessation of the controversy, where, pending the appeal, it is made to appear by uncontroverted affidavits that the contract has already been relet to another, who is performing and had approximately completed the work.</p> <p>Injunction—Bbeach op Contract—Damages — Pleadings — Issues. An action to enjoin the county commissioners from re-letting a contract for state highway work, under 3 Rem. & Bal. Code, § 5879-1 et seq., and from interfering with the plaintiff in the performance of a contract let to it for the same work, does not state a-cause of action for damages, where neither the county nor state was made a party, and there was no allegation of the incurring of expense or of possible profits in the performance of plaintiff’s contract; and mere uncertainty in the measure of damages is not ground for maintaining an action to restrain a breach of contract.</p>

, entered July 24, 1913, in favor of the defendant notwithstanding the verdict of a jury in favor of the plaintiff, in an action for personal injuries sustained through defects in a street.

<p>Appeal from a judgment of the superior court for Chelan county, Pendergast, J., entered April 16,1914, dismissing an action for an injunction, upon sustaining a demurrer to the complaint.</p>

<p>Abstracts of Title—Certificate—Omissions—Liability. An abstract company, certifying to the title to property, between specified dates, that no proceedings affecting the title to tbe property bad been bad in tbe state or Federal courts affecting tbe title during sucb time, is not liable for failure to notice interlocutory proceedings bad in an action commenced before, and judgment entered after, tbe limit of tbe certificate, sucb as bearings and continuances wbicb did not operate as a lien upon or affect tbe title to tbe land.</p>

<p>Criminal Law—Appeal — Review ■—■ Discretion — Continuance. The denial of a continuance in a criminal trial, asked because of insufficient time to prepare a defense and because of prejudice of the panel of jurors in attendance, will not be disturbed on appeal where abuse of discretion was not shown.</p> <p>Same—Trial—Conduct—Special Counsel. It is discretionary to allow special counsel, to aid the prosecuting attorney in a criminal trial.</p> <p>Same—Trial—Indorsement of Witness. It is not error to allow the state to indorse upon the information the name of an additional witness, where no continuance was asked.</p> <p>Perjury—Oath—Evidence. In a prosecution for perjury in giving testimony at a former trial, evidence of the clerk that there was no doubt that he administered the oath to the defendant on the former trial, and of the presiding judge that it was his best judgment that the usual oath was administered to him, is sufficient to go to the jury on the question whether his evidence was given under oath.</p> <p>Perjury—Evidence—Sufficiency—Witnesses—Refreshing- Memory. In a prosecution for perjury in giving testimony, the testimony alleged to be false may be proved by the judge, who recalled it, and by the stenographer, who testified that his notes were correct and was allowed to refresh his memory therefrom.</p> <p>Criminal Law—Evidence—Identity oe Accused—Sueeiciency. In a prosecution under the habitual criminal act, upon an issue as to the identity of accused and a person of the same name convicted and sentenced to the state penitentiary in New York, the evidence is sufficient where the Bertillon clerk of such prison testified that he was well acquainted with a person of the same name imprisoned in such prison at that time, and that he and the accused were one and the same person, taken in connection with photographs and handwriting; the rule being that identity of names raises a presumption of identity of persons, where there is a similarity of residence, trade, or circumstances.</p> <p>Witnesses—PsiviLEaED Communications—Attorney and Client. The fact that letters were written to an attorney does not show that the communications were privileged, where the relation of attorney and client did not exist.</p> <p>Witnesses—Experts—Opinions—Handwriting. An attorney who is familiar with the handwriting of a person may testify that certain signatures were in such person’s handwriting.</p> <p>Perjury—Evidence—Corroboration—Sueeiciency. In a prosecution for perjury, the requirement that there must be direct testimony of at least one credible witness directly contradictory to the defendant’s oath, in addition to which there must be corroboration by another such witness or circumstances established by independent evidénce, the evidence of a witness contradicting defendant’s oath, that he and a person convicted and sentenced for a prior offense are one find the same person, are sufficiently corroborated by the record of the judgment and sentence and prison records.</p> <p>New Trial—Surprise—Newly Discovered Evidence. A new trial on the ground of surprise and newly discovered evidence in a criminal trial cannot be claimed where it appears that, on a prosecution three years previously, while represented by the same attorney, the alleged newly discovered evidence was produced and used by the defendant upon a similar issue, which he was informed by the information would be again used against him on the trial; since no reasonable diligence was used to produce the evidence at the trial.</p>

, entered March 3, 1914, upon sustaining a demurrer to the information, dismissing a prosecution for the illegal taking of fish.

<p>Appeal from a judgment of the superior court for Clarke county, McMaster, J., entered August 14, 1913, upon findings in favor of the plaintiffs, in an action for conversion, tried to the court.</p>

, entered November 7, 1913, dismissing a prosecution for hunting deer with dogs, upon sustaining a demurrer to the information.

<p>Physicians and Surgeons—Practicing Medicine—Regulation— Statutes—Validity—Equal Protection of the Laws. Rem. & Bal. Code, § 8400, requiring a state license for the practice of medicine and surgery, osteopathy, “or any other system or mode of treating the sick,” includes, and warrants a conviction for, the treatment of the sick by the laying on of hands, with suggestions from the mind of the operator to the mind of the patient; hence does not deny the equal protection of the laws in failing to specifically mention such system, along with “medicine,” “surgery,” and “osteopathy.”</p> <p>Same—Practicing Medicine—Regulation—Statutes—Construction. Rem. & Bal. Code, § 8405, providing that nothing-in the chapter relating to licenses for practicing medicine and other modes of treating the sick shall apply to or regulate any kind of treatment by prayer, does not exclude from the operation of the chapter the practice of suggestive therapeutics, a system of treating the sick by the laying on of hands with suggestions from the mind of the operator to the mind of the patient; since the same is not any kind of treatment by prayer.</p>

<p>Appeal from a judgment of the superior court for King county, Ronald, J., entered September 20, 1913, upon a trial and conviction of grand larceny.</p>

<p>Appeal from a judgment of the superior court for Chelan county, Grimshaw, J., entered March 6, 1914, denying an application for a writ of habeas corpus, after a hearing before the court.</p>

Application filed in the supreme court May 29, 1914, for a writ of prohibition to the superior court for King county, Frater, J., to prevent proceedings on execution, pending an appeal.

, entered May 9, 1913, upon findings in favor of the plaintiff, overruling the industrial insurance commission in denying compensation to a widow, upon an agreed statement of facts.

<p>Appeal from a judgment of the superior court for Pierce county, Easterday, J., entered July 9, 1913, upon findings in favor of the defendants, in an action on contract, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Thurs-ton county, Mitchell, J., entered January 20, 1914, dismissing an action on contract, upon sustaining a demurrer to the complaint.</p>

<p>Municipal Corporations—Claims—Damages—Removal of Lateral Support—Necessity of Claims. Under Seattle city charter, art. 4, § 29, requiring all claims for damages against the city to be filed within thirty days, a claim for damages by the removal of lateral support is a prerequisite to the action, where the city had condemned the right to make the change in grade and to take land sufficient for a one-to-one slope, and paid the compensation, and the damages resulted from the inadequacies of the plan to protect the remaining property from sliding.</p> <p>Same—Claims for Continuing Damages. A claim for continuing damages to abutting property, by reason of a progressive slide caused by the city’s removal of lateral support, is within a charter provision requiring “all claims” for damages against the city to be filed within thirty days after such claim accrues; and Rem. & Bal. Code, §§ 7995 and 7997, making the filing of such claims in the manner required by the city charter a mandatory condition precedent to action, no recovery can be had for damages accruing more than thirty days prior to the.filing of the claim.</p> <p>Same—Continuing Damages—Future Damages — Instructions. A charter provision requiring a claim for all damages against a city to be filed within thirty days after the action accrues, does not operate as a statute of limitations as to continuing damages, and permits of the recovery of future damages, to the day of trial, hut the jury are properly instructed that there can be no recovery for damages accruing more than thirty days prior to the filing of the notice.</p>

, entered March 6, 1914, dismissing an action in tort, upon granting a nonsuit, after a trial before the court and a jury.

, entered March 6, 1914, dismissing an action in tort, upon granting a nonsuit, after a trial before the court and a jury.

, entered January Í2, 1914, decreeing the foreclosure of a mortgage and dismissing a cross-complaint, upon sustaining demurrers to affirmative defenses and the cross-complaint.

<p>Appeal from a judgment of the superior court for King county, Albertson, J., entered April 23, 1914, dismissing an action to enjoin the issuance of bonds, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Easterday, J., entered August 9, 1913, dismissing an action for equitable relief, upon sustaining demurrers to the complaint.</p>

<p>Appeal from a judgment of the superior court for King county, Mackintosh, J., entered March 22, 1913, upon the verdict of a jury rendered in favor of the plaintiff, in an action of replevin.</p>

<p>Appeal from a judgment of the superior court for King county, Albertson, J., entered October 4, 1913, dismissing an action for equitable relief, after a trial on the merits to the court.</p>

<p>Appeal from a judgment of the superior court for King county, Mackintosh, J., entered March 3, 1913, upon findings in favor of the plaintiff, in an action of replevin, tried on the merits to the court.</p>

Motion to dismiss an order of the superior court for Spokane county, Huneke, J., entered March 18, 1914, vacating a judgment and granting a new trial.

Application filed in the supreme court March 28, 1914, for a writ of certiorari to review a judgment of the superior court for Spokane countj, Huneke, J.

<p>Appeal from a judgment of the superior court for King county, Raymond G. Wright, Esq., judge pro tempore, entered May 29,1912, upon findings in favor of the defendants, in an action for an accounting.</p>

<p>Wharves—Public Dock—Construction—Negligence — Liability of County-—Questions for Jury. The negligence of a county in maintaining a public dock with a loose fender-pile, whereby a child’s hand was caught and crushed, is for the jury, where experts testified that the proper and safe construction was to have the fender-piles bolted to the dock, it being admitted that this would have prevented the injury.</p> <p>Wharves—Public Docks—Maintenance — Liability of County. A county is bound to exercise the same degree of care for the safety of the public in the maintenance of a public dock at the termination of a county road as is required in the case of public highways; especially in view of the statute authorizing the maintenance of county docks only at the termination of county roads.</p> <p>Negligence—Dangerous Premises—Public Dock—Trespassers— Children. A child of tender years (six), accompanying an older brother who was sent on an errand to a public dock to meet a steamer, is not a trespasser in going upon the dock, which was at the termination of a county road.</p> <p>Negligence—Dangerous Premises—Places Attractive to Child. A county is charged with notice and bound to anticipate that a public dock at the termination of a county road is a place attractive to children and might be used by them for recreation, especially where the county allowed a confectionery stand upon the dock.</p> <p>Same—Contributory Negligence—Presumptions. In the absence of evidence to the contrary, a child of six or seven years of age is presumed to be incapable of contributory negligence.</p> <p>Negligence—Personal Injuries — Action by Child — Contributory Negligence of Parent. In an action by a minor child of tender years to recover for his own personal injuries, the contributory negligence of his parents is no defense.</p> <p>Damages—Personal Injuries—Excessive Verdict. A verdict for $3,202, for personal injuries sustained by a child, whose hand was crushed so that it was stiff and lacked the power of gripping and probably would never be as strong as a normal hand, and one finger had to be amputated, is not so excessive as to indicate passion or prejudice.</p>

<p>Appeal from a judgment of the superior court for Kitsap county, French, J., entered June 4, 1913, upon findings in favor of the defendants, in an action to quiet title, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Huneke, J., entered July 11, 1913, upon findings in favor of the plaintiff, in an action for contribution, tried to the court.</p>

, entered September 18, 1918, affirming an order of the public service commission directing the refund of an excessive freight rate, after a hearing before the court.

<p>Eminent Domain — By Municipal Corporations — Proceedings— Prerequisites—Necessity of Attempting to Agree. The provision of Spokane city charter, art. 5, § 49, relating to condemnations, which provides that if the park board shall be unable to purchase at a satisfactory price, any lands sought, the council shall, upon notice given by the board, condemn the same, is not a valid limitation upon the power of the city to condemn only where effort to secure the property sought by agreement has failed; in view of the general statutes, Rem. & Bal. Code, §§ 7768-7771, conferring the power of eminent domain and fixing the procedure, without any such limitation or any reference to any action by the park board or authority to delegate any part of the power to the park board.</p> <p>Same—Condition Precedent—Jurisdiction—Waiver of Objection. The failure to agree upon the price of land sought is not a condition precedent to the institution of condemnation proceedings, unless it is so prescribed in the act; hence a failure to allege or prove the same is not a jurisdictional defect and is waived if not raised below.</p> <p>Same—Public Use—Taking of Land for Park. The taking of lands for public parks, boulevards and parkways is a public use.</p> <p>Same—Proceedings—Conditions Precedent—Presumptions. The statutes having entrusted to the city council the power to initiate condemnation proceedings by ordinance, in the absence of fraud the courts will presume that all antecedent executive and quasi judicial investigation prescribed by law preceded the adoption of an ordinance invoking the exercise of the power of eminent domain by a city.</p> <p>Same—Public Necessity. In condemning lands for park purposes, a city need not show an immediate necessity for an immediate use, but has a right to anticipate future needs.</p> <p>Eminent Domain—Public Necessity — Evidence — Sufficiency. Where ordinances providing for condemnation declared that property sought to be taken was necessary for park purposes, and a recital of the facts upon which such declaration was based would not further establish its truth or good faith, in the absence of some charge of fraud, and it was further shown that the land sought was required to connect two other tracts donated to the city for park purposes and which, could only be retained by securing the property sought, and that the request of the park board for the condemnation had been recommended by the committee appointed by the council to investigate the same, the evidence was sufficient to show a reasonable necessity for the taking of the land for park purposes, and that the taking was sought in good faith.</p> <p>Same. Such evidence is admissible on the question of the public use and necessity for condemning the land.</p>

<p>Appeal from a judgment of the superior court for Chehalis county, Irwin J., entered June 24, 1913, upon the verdict of a jury rendered in favor of the plaintiff, in an action on contract.</p>

<p>Sales—Rescission—By Purchaser. There can be no rescission by the purchaser of an automobile, seeking to recover the purchase price because of fraud in the sale, where it was badly damaged while in his possession, so that the parties cannot be placed in statu quo.</p> <p>Sales—Warranty—Damages—Measure. There can be no recovery of damages'for breach of warranty of an automobile, in the absence of evidence showing either its market or reasonable value.</p>

<p>Appeal from a judgment of the superior court for King county, Humphries, J., entered June 7, 1913, upon findings in favor of the defendants, in an action on contract, tried to the court.</p>

<p>Taxation—Assessment—Equalization — Review. The acts of the board of equalization being of a quasi judicial nature, its findings will not be disturbed in the absence of a showing of fraud, or that its action was arbitrary or capricious.</p> <p>Same. Where the. valuation of property adopted by the board of equalization for the purposes of taxation is so grossly excessive as to constitute actual fraud, the court has jurisdiction to review the assessment in a proper proceeding.</p> <p>Taxation—Assessment—Excessiveness—Construction — Fraud. Where a county cruise of timber for the purposes of assessment was unsatisfactory, and upon objection to the board of equalization, a new cruise was agreed upon and made by a cruiser selected by the county, showing one-fourth less timber than the first cruise, the assessment of the timber upon the basis of the first cruise is constructively fraudulent, when taken in connection with the surrounding circumstances.</p> <p>Pleading—Tendee—Admissions. A tender of a tax is admitted where a complaint alleges the tender and that it was wrongfully refused, and the answer admits the tender but denies that it was wrongfully refused, as the denial was of a mere conclusion and presents no issue.</p> <p>Appeal—Preservation op Grounds—Objections Below. In the absence of a motion to retax the costs below or to strike the cost bill, error cannot be urged in taxing the costs.</p>

<p>Appeal from a judgment of the superior court for King county, Smith, J., entered August 21, 1913, dismissing an action to secure a reduction of taxes, upon sustaining a demurrer to the complaint.</p>

<p>Banks and Banking—Deposits—Special Deposits—Condition— Liability. Where a loan was negotiated with the understanding that the money, when deposited in the bank, was to be used only in payment of specified bills of the mortgagor and of bills against the building on the mortgaged premises, and the bank notified the mortgagor of the special features of the deposit, which was acquiesced in after some dissent, the deposit was a special one and the bank was Justified in refusing to honor checks not drawn in payment of bills against the building.</p>

<p>Appeal from a judgment of the superior court for King county, Humphries, J., entered June 20, 1913, upon findings in favor of the plaintiff, in an action for divorce.</p>

, entered August 8, 1918, upon findings in favor of the plaintiff, in an action to abate a nuisance, tried to the court.

<p>Appeal from a judgment of the superior court for King county, Smith, J., entered April 19, 1913, upon findings in favor of the defendants.</p>

<p>Canals — Waterway Districts — Establishment—Contracts — Power of Commissioners. Under 3 Rem. & Bal. Code, §§ 8166a and 8177a, authorizing the commissioners of a waterway district to employ engineers to assist them in compiling data required to be presented to the court in the petition for the formation of the district, and such legal and other assistance as may be necessary, the commissioners have no power to enter into a contract to employ an engineer as an expert adviser for the purpose of preparing the assessment roll, at $300 per month, the employment to continue until the roll had been finally settled by the supreme court; since after the work was completed and before termination of the employment, a considerable period of time must elapse during which no service could be rendered.</p>

<p>Appeal—Recobd—Statement oe Pacts—Affidavits. Affidavits used upon a bearing must be brought up on appeal by bill of exceptions or statement of facts, and it is not enough to include them in the clerk’s transcript and refer to them in the statement of facts as “hereby made a part hereof,” in view of Rem. & Bal. Code, § 390, requiring them to be appropriately referred to in, and attached to, the statement of facts certified to by the judge.</p>

, entered, June 13, 1913, upon findings in favor of the defendants,- denying injunctive relief against a public improvement, after a trial to the court on the merits.

<p>Appeal from a judgment of the superior court for King county, Dykeman, J., entered June 3, 1913, upon findings in favor of the plaintiff, in an action on contract, tried to the court.</p>

, entered March 22, 1913, upon findings in favor of the defendants, in an action to foreclose mechanics’ liens, after a trial to the court.

, entered October 10, 1913, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a teamster.

Appeals from judgments of the superior court for Thurs-ton county, Mitchell, J., entered September 9, 1913, and October 11, 1913, dismissing actions to collect a tax, upon overruling demurrers to the answers.

<p>Appeal from a judgment of the superior court for Grant county, Steiner, J., entered March 25, 1913, in favor of the plaintiff, notwithstanding the verdict of a jury rendered in favor of the defendants, after a trial on the merits.</p>

<p>Criminal Law—Dismissal for Failure to Prosecute—Appeal-Excuse for Delay—Diligence. Accused, convicted in police court and appealing to tbe superior court, is not entitled to a dismissal for failure of the state to bring the case to trial within sixty days, as required by Rem. & Bal. Code, § 2312, where he made no demand upon the court itself to have the case set for trial, although he frequently requested the prosecuting attorney to move therefor and no criminal cases were set for trial except on such motion; since § 2312, has no application to appeals from convictions in justice court, in view of Id., §§ 1919 and 1920, providing that the bond on appeal shall require the defendant to appear in the superior court and prosecute the appeal, and directing default of his recognizance and sentence against him if he fails to do so; his requests to the prosecuting attorney not being reasonable diligence in the discharge of his obligation to prosecute the appeal.</p>

Cross-appeals from a judgment of the superior court for King county, Prater, J., entered July 28, 1913, settling a guardian’s account, after a hearing before the court on the merits.

<p>Insurance—Accident Insurance—-Actions—Cause of Fire—Evidence—Question for Jury. In an action upon an accident policy insuring against accidental injuries “by the burning of a building while the beneficiary is therein,” there is sufficient evidence to make a question for the jury as to whether the beneficiary's dress caught fire from the “burning of a building,” where the fire was discovered when she was sitting near a stove in the dining room, and she supposed that a blanket caught fire from the stove, but it appears that she had just previously been to the kitchen, where a burning stick was found on the floor, the linoleum and carpet in front of the kitchen range were on fire, fire had extended to and burned the floor of the next room, and it is reasonably certain that her dress caught fire from the fire in the kitchen.</p>

, entered October 11, 1913, enjoining the issuance of a county warrant, at the suit of a taxpayer, upon sustaining a demurrer to the answer.

<p>Appeal from a judgment of the superior court for King county, Tallman, J., entered September 25, 1913, upon findings in favor of the defendants, upon an agreed statement of facts.</p>

<p>Appeal from a judgment of the superior court for Chehalis county, Sheeks, J., entered September 12, 1913, dismissing an action in tort, on granting a nonsuit.</p>

<p>Evidence—Judicial Notice. The courts will take judicial notice of the fact that in large and populous counties there are many units within the local option law.</p> <p>Intoxicating Liquors—Local Option Law—Violation—Information—Sufficiency—Certainty — Statutes — Construction. Under Rem. & Bal. Code, § 6309, providing that it shall he unlawful to bring intoxicating liquor into any unit in which the sale is prohibited, and § 6310 prescribing the requisites for indictments and informations, dispensing with particular statements in various particulars, such as descriptions of the place and names of the persons to whom sales are made, an information for bringing liquor into a dry unit in a certain county is insufficient where it fails to allege in which one of several dry units the offense was committed, in view of Const., art. 1, § 22, giving the accused the right to demand the nature and cause of the accusation, and in view of the clause in § 6310, referring to “the unit where the violation is alleged to have occurred.”</p> <p>Same. In such a case, it is immaterial and unnecessary to state from what place the liquor was brought into the dry unit.</p> <p>Same—Information— Guilty Knowledge. An information charging that defendant unlawfully and wilfully brought liquor into a dry unit, sufficiently alleges guilty knowledge and evil intent.</p> <p>Same—Instructions—Elements of Offense. Under the local option law making knowledge an essential element of the offense of bringing liquor into a dry unit, it is error to refuse to instruct the jury that guilty knowledge on the part of the accused was one of the elements of the offense, to be proved beyond a reasonable doubt, to warrant a conviction.</p>

<p>Judgment—-Default—Vacation—Grounds-—Proceedings to Commence Action—Delay. Under Rem & Bal. Code, § 220, providing that an action may be commenced either by the service of a summons or filing a complaint, a delay of three years in filing the complaint after commencement of the action by the service of a summons and copy of the complaint, does not deprive the court of jurisdiction to enter a default judgment, or warrant the vacation of the default, where there had been no appearance by the defendant.</p>

<p>Appeal from a judgment of the superior court for King county, Tallman, J., entered November 8, 1913, dismissing an action of replevin, upon granting a nonsuit.</p>

<p>Cross-appeals from a judgment of the superior court for Chehalis county, Irwin, J., entered September 20, 1913, in an action by a creditor to recover an unpaid subscription to the capital stock of an insolvent corporation, after a trial to the court.</p>

<p>Appeal from a judgment of the superior court for King county, Mackintosh, J., entered December 3, 1913, upon findings in favor of the defendants, in an action in tort, tried to the court.</p>

<p>Appeal from a judgment of the superior court for King county, Humphries, J., entered July 30, 1913, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a pedestrian struck by an automobile.</p>

<p>Frauds, Statute of—Waiver of Bar—Part Performance—Estoppel. A lessor is estopped to question the validity of an unacknowledged lease for a term of five years, where it appears that, to secure the lease, the tenant cancelled a prior valid lease and paid $2,200 increased rentals for the last eight months of the term thereof, that after the lease had run four years the lessor, on denying an application for a renewal at the end of the term, recognized the lease by telling the agent he could remain for the end of the term (making in effect a new lease for less than a year), and that the lessee, upon the faith thereof, invested $30,000 in new stock upon which he would sustain a heavy loss if required to move before the end of the year.</p> <p>Principal and Agent—Acts of Agent—Ratification. A landlord accepting the benefits of a lease made by its authorized agent in his own name, without questioning its validity, adopts the same as its own, where the principles of equitable estoppel intervene to prevent a denial of its validity for want of acknowledgment.</p> <p>Estoppel—Pleading—Necessity. Where the facts constituting an estoppel to deny a lease are set forth in the pleadings, and early in the trial the pleader assumed that he relied upon an estoppel to deny the lease, to which no claim of surprise was interposed nor request for a continuance made, the objection that an estoppel was not specifically pleaded is unavailable.</p>

<p>Application filed in the supreme court July 10, 1914, for a writ of certiorari to review a judgment of the superior court for Lewis county, Rice, J., entered June 30, 1914, pending condemnation of a leasehold.</p>

, entered September 22, 1913, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for the death of a son, on appeal from a ruling of the industrial insurance commission.

, entered May £8, 1918, upon findings in favor of the defendant, dismissing an action for premiums due under the industrial insurance law, after a trial to the court.

<p>Carriers — Passengers — Free Passes — Employees — Contract Bights. An employee riding on a free pass given as p^rt of tlie consideration for lier services, is a passenger for Lire, and a clause exempting the carrier from liability for negligence is void as against public policy; while it would not he so if the pass were a pure gratuity.</p> <p>Same—Free Passes—Waiver of Contract Rights. An employee contracting for a free pass whenever desired, as part of the consideration for her services, whereby she would become a passenger for hire, may waive her contract rights, and does so, where, after the employment, her written application therefor and the pass both stipulated that the pass was a pure gratuity without any consideration (Main, Gose, and Ellis, JJ., dissenting).</p>

<p>Appeal from a judgment of the superior court for Pend Oreille county, Jackson, J., entered April 11, 1913, upon findings in favor of the plaintiff, in an action on contract, tried to the court.</p>

<p>Associations — Contracts — Liability of Members — Actions— Pleading—Defenses. The fact that the local members of a fraternity entered into a lease executed by the president and secretary in the name of the association, does not preclude the landlord, in suing for rent, from alleging that the members were a voluntary association and contracted as copartners; and it would be no defense to the action that there was a duly organized corporation in another state of the same name assumed by the tenants in the lease.</p>

, entered October 7, 1913, 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, Gilliam, J., entered April 8, 1913, confirming an assessment roll on appeal from the eminent domain commissioners, after a hearing on the merits.</p>

<p>Appeal from a judgment of the superior court for King county, Smith, J., entered September 4, 1913, upon findings in favor of the plaintiff, in an action on contract, tried to the court.</p>

<p>Appeal from an order of the superior court for Yakima county, Grady, J., entered September 16, 1913, vacating a verdict for the plaintiff, in an action for wrongful death.</p>

<p>Appeal from a judgment of the superior court for King county, Dykeman, J., entered July 8, 1913, upon findings in favor of the defendant, modifying a decree of divorce, after a hearing on the merits.</p>

, entered October 1, 1913, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained in a collision with an interurban train.

<p>Appeal from a judgment of the superior court for King county, Gilliam, J., entered January 31, 1914, in favor of the defendant upon an agreed statement of facts, in an action on contract, tried to the court.</p>

<p>Motion to dismiss an appeal from a judgment of the superior court for King county, Ronald, J., entered October 10, 1912, upon a trial and conviction of burglary.</p>

<p>Appeal from a judgment of the superior court for King county, W. B. Stratton, Esq., judge pro tempore, entered September 28, 1912, upon findings in favor of the plaintiff, in an action on contract, tried to the court.</p>

<p>Navigable Waters—Lands Under Water-—-Conveyances—-Construction. After the title to the hed of a tidal stream has passed from the state into private ownership, a conveyance by an upland proprietor, describing the land as hounded by such stream, and making no reservation of the portion covered by water, passes title to the grantor’s interests as far as the grantor owns under the waters of such stream.</p> <p>Vendor and Purchaser—Bona Fide Purchaser—Rights. The rights of a subsequent purchaser deraigning title from a prior grant- or and claiming under intermediate conveyances are measured by the language used in the deeds, and not controlled by facts and circumstances surrounding the conveyance passing from such prior grantor to his grantees.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Blake, J., entered May 6, 1913, dismissing an action to recover upon claims against the estate of a decedent, after a trial before the court and a jury.</p>

<p>Appeal from a judgment of the superior court for King county, Smith, J., entered September 13, 1913, dismissing an action upon a rejected claim against an estate, after a trial to the court.</p>

<p>Appeal from a judgment of the superior court for Mason county, Mitchell, J., entered January 30, 1914, dismissing a prosecution for larceny, upon sustaining a demurrer to the information.</p>

<p>Appeal from a judgment of the superior court for King county, Humphries, J., entered November 13, 1913, upon the verdict of a jury rendered in favor of the defendant, in an action in tort.</p>

<p>Indictment and Information—Included Offenses—Murder— Manslaughter. An information charging that defendant did wilfully, unlawfully, etc., and with intent to effect the death of deceased, with his hands, fists, feet and by other means violently strike etc., and otherwise abuse her, with extreme atrocity and cruelty, thereby bruising and lacerating her body,' face, head and neck and mortally wounding her, of which mortal wounds she died, includes a charge of manslaughter as well as of murder, and the question of his guilt of either crime was properly submitted to the jury.</p> <p>Homicide—Evidence—Prior Acts of Violence. In a prosecution of a husband for the death of his wife, occasioned by a violent assault upon her, evidence is admissible showing previous violent assaults madp by him upon her.</p> <p>Homicide—Evidence—Dying Declarations. Dying declarations of a deceased made four or five days before her death, tending to show that the injuries resulting in her death were made by the accused assaulting her, are admissible in evidence, where the evidence further shows that her death occurred as a direct result of the injuries received and that, at the time of making her declarations, she was under the solemn conviction of approaching dissolution.</p> <p>Criminal Law—Appeal—Harmless Error—Instructions. Refusal of the court to give requested instructions is not prejudicial, where other instructions of the same nature and equally favorable were given by the court.</p> <p>Same—Record—Statement of Pacts—Necessity. Refusal to grant a new trial on the ground of misconduct of the jury, occurring out of the presence of the court, is not reviewable in the absence of evidence embodied in the statement of facts touching upon such error.</p>

<p>Frauds, Statute of—Contracts for Sale of Real Estate—Execution—Sufficiency. A memorandum of purchase of certain described real estate, signed by the purchaser, “subject to the owner’s approval,” but not signed by the owner, nor even disclosing his name though signed by an agent authorized orally to find a purchaser, does not constitute a contract of sale of land within the terms of Rem. & Bal. Code, §§ 8745, 8746, requiring contracts for the conveyance of real estate to be “in writing signed by the party bound thereby;” since the purchaser is the only party bound by the terms of the contract.</p> <p>Same—Sale of Real Estate—Contract of Agent—Ratification. Ratification of a sale of real estate made by an agent for the owner, which was unenforceable under the statute of frauds, is not shown by the act of the owner in receiving the earnest money paid to his agent by the purchaser who was a tenant of the owner, but declining to approve the sale and applying the money on the rent due, nor by the further fact that the owner gave his agent an abstract of title to deliver to the prospective purchaser, coupled .with the understanding that it was not to be delivered until the payment of an additional specified sum as earnest money.</p> <p>Same—Pleadings—Issues and Proof. A party to an action may invoke the application of the statute of frauds without pleading it, where the contract in issue is set out in full in the pleadings and shows on its face that it is such a contract as is required by law to be in writing.</p>

<p>Appeal from a judgment of the superior court for King county, Tallman, J., entered December 23, 1913, upon the verdict of a jury rendered in favor of the plaintiff for $9,250, for personal injuries sustained by a pedestrian struck by an automobile.</p>

<p>Appeal from a judgment of the superior court for King county, Smith, J., entered October 23, 1913, upon findings in favor of the plaintiff, in an action to recover an interest in an estate.</p>

<p>Libel and Slander—Criminal Responsibility—Information— Translation of Publication. An indictment or information for criminal libel published in a foreign language must set out the defamatory words verbatim and follow them with a proper translation; but it is not essential that the words shall be identical in translations made by different persons, but is sufficient if there is no difference in the ideas conveyed.</p> <p>Same—Offenses—Words Libelous Per Se. A published statement that the prosecuting witness visited the defendant’s printing office and threatened to kill him, that he had been unduly intimate with defendant’s wife, and had maintained improper relations with the wife of a man whose name was not disclosed, is libelous per se.</p> <p>Same—Evidence—Injury. In a prosecution for the publication in the Japanese language of an article libelous per se, where the prosecuting witness testified that his business credit was injured by reason of the loss of Japanese custom, evidence on the part of defendant showing such injury was occasioned by loss of credit with American dealers is inadmissible, when it was not shown that such dealers could have read the article in the Japanese language.</p>

<p>Sales—Contracts—Construction. A contract whereby one party agrees to furnish the other all the cedar logs cut by it in a specified township upon lands now owned or hereafter purchased, as such cedar logs are reached by it in its logging operations, and to deliver the logs cut to the second party at its shingle mill to be erected and located adjacent to the first party’s railroad track, and the second party agrees to purchase of the first party all the cedar logs cut by it from said township as cut and delivered at said mill, and pay for same at the rate of $5.50 per thousand feet B. M., but the price to be adjusted from time to time according to the Tacoma market, and to be at all times $1.50 per thousand feet B. M., less than the Tacoma market price, the agreement to be in force for a period of ten years from its date, constitutes a mutual contract of sale.</p> <p>Same—Construction by Parties. Under such a contract, where the logs supplied varied from year to year in amount, and the delivery, whether greater or less, was accepted without question, the fact that the second party erected a shingle mill for the purpose of manufacturing the logs, and that both parties had mutually performed their agreements for a period of six years, could not be construed as a construction of the contract by the parties to the effect that the first party was bound to keep the second party’s mill in operation for the period named in the contract.</p>

, entered September 6, 1913, upon findings in favor of the plaintiffs, in an action for damages from failure to deliver a telegram, tried to the court.

<p>Appeal from a judgment of the superior court for Kittitas county, Kauffman, J., entered October 11, 1913, upon a trial and conviction of seduction.</p>

<p>Appeal from a judgment of the superior court for King county, Ronald, J., entered September 20, 1913, upon a trial and conviction of criminal slander.</p>

<p>Appeal from a judgment of the superior court for King county, Mackintosh, J., entered September 13, 1913, upon findings in favor of the plaintiff, in an action upon a foreign judgment, tried to the court.</p>

, entered December 23, 1913, upon findings in favor of the plaintiff, in an action to annul a marriage, tried to the court.

<p>Appeal—Review-—Harmless Error. Error in refusing to require an election between inconsistent theories in the complaint is not prejudicial, where the plaintiffs did in fact proceed upon one theory only, and the case was tried and evidence introduced upon that theory, which was well understood by both parties throughout the trial, and no surprise was claimed.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Webster, J., entered June 10, 1913, upon findings in favor of the plaintiffs, in .an action for equitable relief, tried to the court.</p>

<p>Appeal from a judgment of the superior court for King county, Mackintosh, J., entered October 17, 1918, upon the verdict of a jury rendered' in favor of the plaintiff, in an action on contract.</p>

<p>Cross-appeals from a judgment of the superior court for King county, Gilliam, J., entered September 12, 1913, upon findings favorable in part to the plaintiffs, in an action on contract, tried to the court.</p>

<p>Municipal Corporations—Streets — Negligent Use — Collision With Automobile—Contributory Negligence—Evidence—Sueeiciency. In an action for personal injuries sustained through a collision with an automobile, driven at an excessive rate of speed and in plain violation of law, the refusal of the court to grant a nonsuit on the ground of the contributory negligence of the plaintiff was warranted, where it appeared' that the plaintiff, as soon as he saw the defendant’s automobile, shut off the power of his motorcycle and entered upon the crossing at a slow rate of speed, and finally stopped his motorcycle, but was nevertheless run down and injured.</p> <p>Trial—Instructions—Requests. It is not error to refuse an instruction defining contributory negligence, where the same was, in substance, given by the court in other instructions.</p> <p>Trial—Instructions—Comment on Evidence. An instruction that an ordinance of a city limited the speed of automobiles on city streets, except at street crossings, where the laws of the state fixed the maximum rate of speed, and that if the defendant was found to have violated the law in this respect the verdict should be for plaintiff, is not objectionable as a comment on the evidence in that the ordinance limiting the rate of speed made no exception at street crossings, since the ordinance must be construed in connection with the state law.</p> <p>Same—Assumption as to Facts. An instruction is not faulty in that it assumes that an automobile was traveling along a certain street in the city of T., where there was no pleading or proof that the collision occurred in such city, when it was assumed at the trial that the street was in the city of T., the case was tried there, and the jury was sent to view the place of the accident.</p> <p>Municipal Corporations—Use op Streets—Negligence Per Se. It is negligence per se to drive an automobile on a city street at a speed in excess of the rate fixed by a city ordinance and the state law.</p>

<p>Appeal from a judgment of the superior court for King county, Tallman, J., entered January 6, 1914, dismissing an action in tort, upon granting a nonsuit, after a trial before a jury.</p>

Application filed in the supreme court April 22, 1914, for a writ of mandamus to compel the secretary of state to file articles of incorporation.

<p>Mandamus—Proceedings-—Default. Under Rem. & Bal. Code, § 1017, a writ of mandamus cannot be granted by default, but the case must be heard by the court whether the adverse party appears or not.</p> <p>Waters and Water Courses—Water Companies — Rates — Discrimination—Public Service Commission—Jurisdiction. The public service commission is invested with exclusive jurisdiction, under the public utilities act (3 Rem. & Bal. Code, § 8626-1 et seq.), to pass upon and determine the question of a discrimination of rates charged by a water company.</p> <p>Waters and Water Courses—Water Companies-—Rates — Discrimination—Complaint. A consumer, discriminated against by a water company in the matter of rates charged for water, has authority to file a complaint with the public service commission, under § 80 of the public utilities act, 3 Rem. & Bal. Code, § 8626-80, providing that “complaint may be made ... by any person ... in writing, setting forth any act or thing done or omitted to be done by any public service corporation,” etc.; notwithstanding the proviso in § 80 that “no complaint shall be entertained by the commission except upon its own motion, as to the reasonableness of the schedule of the rates or charges of any . . . water company, . . ., unless the same he signed by the mayor, council or commission of the city or town in which the company complained of is engaged in business, or not less than twenty-five consumers or purchasers of such . . . water” etc., the proviso pertaining only to complaints affecting the reasonableness of the schedule of rates or charges of a public service corporation, and not abridging the authority of an individual to complain of a discrimination in rates.</p> <p>Same. The party discriminated against, must, in any event, before resort to the courts, ask the public service commission itself to file the complaint, or apply to the city authorities to do so, or endeavor to induce other consumers to join in filing the complaint.</p>

<p>Appeal from a judgment of the superior court for King county, Myers, J., entered September 7, 1912, upon findings in favor of the defendant, in an action for rescission, tried to the court.</p>

, entered October 18, 1913, upon findings in favor of the plaintiff, in an action on implied contract, tried to the court.

<p>Master and Servant — Workmen’s Compensation Act — Permanant Partial Disability — Statutes — Construction. A workman injured while engaged in a hazardous occupation is not entitled to an award by the industrial insurance commission as for “permanent total disability,” but can recover for “permanent partial disability,” where his injuries resulted in the loss of portions of his fingers, subd. (b) of the act, 3 Rem. & Bal. Code, § 6604-5, expressly defining permanent total disability as the loss of both legs or both arms, one leg or one arm, total loss of eyesight, etc., and subd. (f) defining permanent partial disability as the loss of one foot, one leg, one hand . . . “one or more fingers,” etc.</p> <p>Same—Award for Injuries—Discretion of Commissioners — Review by Court. Under subd. (f) of § 5 of the workmen’s compensation act, 3 Rem. & Bal. Code, § 6604-5, defining permanent partial disability of an employee engaged in a hazardous occupation, and prescribing that the award be paid in a lump sum, but never to exceed $1,500, to be decided by the department, and § 20 of the act (Id., § 6604-20) providing for a review of decisions of the department, so far as such decision rests upon questions of fact, etc., the amount of the award is within the discretion of the department, and will not be reviewed, in the absence of capricious or arbitrary action in fixing the same, especially where the amount allowed the employee was $1,200.</p> <p>Courts—Power to Correct Error—Interlocutory Orders—Conclusiveness. Where, prior to final hearing on an appeal from a decision of the industrial insurance department, the then presiding judge awarded appellant a jury trial, and at the final hearing another judge overruled the holding of the former judge, the first ruling was not conclusive, but was an interlocutory order subject to change and correction before final disposition of the cause.</p>

<p>Master and Servant — Injury to Servant—-Scope of Employment—Evidence—Stjebtciency. A verdict cannot be sustained for wrongful death of a minor employed as a hostler’s helper, who was killed while on the pilot of an engine during a collision, where the testimony of plaintiffs witnesses as to the reason for his presence there was purely speculative, and it was clearly established that he was not in the performance of his duties, and was violating a rule forbidding employees to ride on engine pilots.</p> <p>Evidence—Hearsay—Res Gestae. Evidence of statements made by an employee after an injury resulting in his death is not admissible as part of the res gestae, where they in no way explained or characterized the main fact, but were concerning what happened just prior to the accident, being merely the narration of a past event.</p> <p>Master and Servant—Federal Employer’s Liability Act—Scope of Employment. A recovery cannot be had under the Federal Employer’s Liability Act for the wrongful death of an employee while on the pilot of an engine, by merely showing the injury and that the employee was at the time engaged in interstate commerce, nor in the absence of negligence occasioning the injury; and the duty to furnish the servant a safe place in which to work not extending to places where he is not required or expected to be in performing his duties, it is incumbent upon the plaintiff to show that the servant was, at the time of the injury, engaged in some act incidental to his employment.</p>

<p>Eminent Domain—Proceedings—Appeal—Supersedeas. The supreme court has jurisdiction to grant a supersedeas pending an appeal from a judgment in condemnation proceedings, and Rem. & Bal. Code, § 7783, providing that no appeal from a judgment entered upon an award from a jury shall delay proceedings under an ordinance directing a public improvement, is not applicable thereto, where the award was only for the user by the public of the company’s right of way for street purposes, and made no provision for the expense of readjusting its tracks to conform to the surface of the street after it has been brought to the grades established by the ordinance authorizing the improvement, and moreover it was questionable whether the city had the power to condemn land for a street longitudinally over land owned by the company in fee and occupied by its tracks; since it appears that, should the questions raised by the appeal prove meritorious, the constitutional rights of the appellant will be violated if the supersedeas is not granted.</p>

Application filed in the supreme court July 14, 1914, for a writ of mandamus to compel the secretary of state to file and print an argument upon an initiative measure.

, entered July 8, 1914, upon a plea of guilty of violating the “trading stamp act,” denying a motion in arrest of judgment.

<p>Appeal from a judgment of the superior court for Chelan county, Pendergast, J., entered April 16, 1914, dismissing an action for an injunction, upon sustaining a demurrer to the complaint.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Card, J., entered May 17, 1913, upon sustaining a demurrer to the complaint, dismissing an action on contract, tried to the court.</p>