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the ruling that it was error to permit the and the things then said and done. But, contwo physicians called by the defendant to ceding that the bill in this. way contains testify as to the result of the examination some evidence bearing on the question of made on the morning following the accident, the defendant's negligence, it also must be and as to the condition of the plaintiff as conceded that it does not contain all the evidisclosed by their examination. This hold-dence bearing upon such question, nor does ing, of course, is upon the theory that the re- it purport to do so, for, as before observed, in lation of physician and patient then existed. addition to the stipulation of counsel, and I do not see anything in the case which war- the certificate of the judge, that the bill onrants the conclusion that Dr. Van Cott only contains all the evidence illustrating the the first visit, when he obtained the written statement from the plaintiff, was representing and wholly acting for the defendant in the capacity of a physician or some other agent, but that during the night, and by the next morning, such relation was transformed, and he then became the physician of the plaintiff and acted for him in such capacity. I think he acted in the capacity of a physician for the plaintiff on the first visit as well as on every other visit made by him.

As I

But I do not agree with the majority of the court that the admission of the testimony held to be erroneous was not prejudicial. It is said not to be prejudicial because on the partial record of the case as presented there is not sufficient evidence to show the defendant guilty of the alleged negligence, and hence the verdict which the jury rendered in favor of the defendant was right. It is conceded that all the evidence is not before us, and that no assignment of error is made by either party raising the question of insufficiency of evidence to show negli gence on the part of the defendant. have already shown, the bill of exceptions is made up to illustrate the rulings made in admitting in evidence the testimony of the two physicians, and the written statement made by the plaintiff and delivered to one of them. The bill purports to contain all the evidence bearing on such questions. It is so stipulated by the parties, and certified to by the trial judge. There is no certificate or stipulation, or other statement, that the bill contains all the evidence in the case, or all or any of the evidence bearing on the question of the defendant's negligence, or that of the plaintiff. The bill itself contains no evidence on such issues, except the testimony of the plaintiff wherein he described his relation to the defendant, when and where he boarded the car, the things done and said at and about the time of the accident, the manner in which it happened, the nature and extent of his injuries, and the visits of the physicians. While there may be some things in respect of the plaintiff's testimony contained in the bill which were unnecessary to explain or illustrate the rulings complained of, still it is apparent that it was somewhat difficult to set forth in the bill the testimony of the plaintiff showing the nature and extent of the injuries, the manner in which they were produced, and the amount of violence inflicted, without also setting forth his testimony in the bill

rulings heretofore referred to, the bill affirmatively shows and recites that "other witnesses" were sworn and examined on behalf of the plaintiff, and that "various witnesses" were sworn and examined on behalf of the defendant, and that the testimony of such witnesses is not set forth. The bill, as settled by the judge, does not purport to contain even all the testimony given by the plaintiff on the issues of negligence, nor that it was all the testimony given by him on the trial of the cause. The stipulation of counsel and the certificate of the judge show that it was all the testimony or evidence given by him illustrating the rulings complained of.

Now, it is manifest that the verdict of the jury, as rendered by them, was based, not upon the portion of the evidence before us, but upon the whole evidence adduced at the trial of the case; and the question of insufficiency of evidence to show negligence on the part of the defendant is to be determined from the whole, not a part, of the evidence adduced on such issue. The conclusion, however, reached by the majority of the court, that there was no sufficient evidence to show such negligence, admittedly is based upon a review and consideration of only a part of, and not all, the evidence adduced on such issue. Not having all such evidence before us, I do not see how a proper conclusion can be reached that the plaintiff was not entitled to go to the jury on such issue. Furthermore, we have heretofore several times declared that the object of an assignment of errors is to apprise the appellate court and opposing counsel of the specific question to be presented for consideration and review, the points intended to be relied upon, and to limit discussion and consideration to those points; and we have frequently held that a question of law not raised by an assignment of error will not be reviewed nor considered by us. Notwithstanding these repeated adjudications, I think the majority of the court nevertheless have considered and reviewed the question of law as to the sufficiency of evidence to show negligence upon the part of the defendant when there was no assignment of error made by either party raising such a question, and, too, when all the evidence bearing on such issue is not before them. Neither does the record disclose that a motion for nonsuit was made, nor that the defendant moved for a directed verdict, nor that the question of law now considered and reviewed by the majority of the court was

given an opportunity to rule thereon, nor tively show. that upon all the evidence adducthat any ruling was made by it on such a ed at the trial on such issue the plaintiff question. If, when the bill of exceptions was was not entitled to go to the jury? I say the proposed, showing the objections and rulings record does not so affirmatively show for the in respect of the admission of the evidence reason that it does not contain, and does not complained of, and only containing the evi-purport to contain, áll the evidence adduced dence illustrating such rulings, the defend- or the proceedings had on such issue. Withant desired to defend the verdict and judg-out such an affirmative showing by the recment which was rendered in its favor, on the ground that there was no evidence to entitle the plaintiff to go to the jury on the question of the alleged negligence on its part, it ought to have proposed proper amendments containing all the evidence on such issue, and illustrating the rulings of the trial court on such question, and caused them to be settled in the bill. If such had been done, the respondent then would have been in a position to make cross-assignment of errors as provided by our rules and to urge a review of such question. Not having done so, and the bill not affirmatively showing that it contains a history, or the evidence, of such proceedings, and on its face not purporting to contain them, we are not justified in reviewing it.

I am not saying that an assignment of error is necessary to determine whether an error committed by the trial court was or was not prejudicial. What I do say is that a review of a question of law, like that of insufficiency of evidence to sustain an issue essential to a litigant's cause, cannot properly be had without a direct or cross assignment of error, and proper specifications raising such question, and a presentation of all the evidence adduced on such issue by a record affirmatively showing that it contains all such evidence.

ord, we are not apprised, nor can we judicially know, what evidence was adduced on such issue; and the question of whether the plaintiff was entitled to go to the jury on such issue depends upon, and can only be determined from a consideration of, all the evidence adduced thereon at the trial. And since the record does not show, and does not purport to show, all the evidence so adduced, it does not affirmatively show that the plaintiff was not entitled to go to the jury on such issue. To say, as is in effect said, that the plaintiff was required to show that there was sufficient evidence adduced on such issue when no ruling thereon nor question arising therefrom is complained of by him, is to hold that he was required not only to clearly show error by the rulings of which complaint is made, and that it could have harmed him on a material issue in the case, but that he was also required to affirmatively show that he was entitled to recover or prevail on every other material issue.

Suppose, in a case declaring on a written instrument not itself importing a consideration, a valuable consideration, delivery, execution, and breach of the terms of the contract are all sufficiently and properly alleged. By the answer and proper pleadings all the material allegations are put in issue. The alleged signature of the defendant to the instrument, the party sought to be charged, is made a material issue. Upon the evidence adduced by both parties, the case is submitted to the jury, who rendered a verdict for the defendant. During the trial the plaintiff offered competent evidence tending to prove the defendant's signature to the writing. The court erroneously excluded it. The court also erroneously admitted evidence offered by the defendant tending to show that the signature was not his signature. A bill of exceptions is made up and settled illustrating such rulings, showing the objections made and the exceptions taken, and containing all the evidence bearing thereon, and all the proceed

I, of course, accede to the rule that a judgment will not be reversed except for prejudicial error; but whether an erroneous ruling was injurious to the party against whom it was made depends upon the effect or influence it could have had upon the verdict or the result of the trial. From an early time the rule has been, and is now, stated to be that, where error is shown. injury is presumed, unless the contrary appears affirmatively, and that, where error is shown, it will be presumed to have had an effect upon the result of the trial, unless the record affirmatively, not negatively, shows the contrary. Hayne, New Tr. & App. § 287. In an early case from California (Jackson v. Feath-ings had in respect thereof. The bill so seter River W. Co., 14 Cal. 19), Mr. Justice tled and presented does not contain, and does Baldwin said: "The rule is that every error not purport to contain, the evidence adduced is prima facie an injury to the party against on the questions or issues of consideration, whom it is made, and it rests with the other delivery, or breach of the contract. On a reparty clearly to show, not that probably no view of the rulings presented, and finding erhurt was done, but that none could have been ror was committed against the plaintiff, the or was done by the error." Now, the ma- appellate court could, in such case, as well as jority of the court say that no hurt could here, assert that no prejudice resulted behave been done, or was done, by the error cause, on the record as presented, it is not committed because, on the record as present- shown that the plaintiff was entitled to go ed, there is no evidence to show negligence on to the jury on the question of consideration, the part of the defendant. The pertinent ques- or breach of the contract, or on some other

or proceedings had were not presented by, nor | accident, they discovered no symptoms or contained in, the record. The establishing of indications of a fracture or other injury, such a rule requires a party proposing a bill not only to do all that the statute requires of him, to state the objection "with so much of the evidence as is necessary to explain it," and that a draft of the bill proposed "must contain all the exceptions taken upon which the party relies," and that "the exceptions may be presented as briefly as possible," but he also is required to come here fortified with a complete history of the case, and to affirmatively show a prima facie right to recover or to prevail on every issue and question essential to his cause. To do so might require him to set forth in the bill a voluminous history of proceedings over which there is no controversy, and which in no sense illustrates the rulings complained of or the exceptions taken and relied on, and could serve no useful purpose except to prevent the appellate court from the indulgence of wrongful presumptions as to what took place by the proceedings had on such issues if not set forth in the record.

In the case in hand, the record sufficiently discloses that it was submitted to the jury on the issues raised by the pleadings and on the evidence adduced by both parties. The record does not disclose that such action or ruling of the court was in any particular questioned, or that the action of the court was in any manner invoked not to submit the case to the jury, or that any controversy arose over such a proceeding or question. In the absence of some showing to the contrary, we ought to indulge the presumption that the submission of the cause to the jury by the court was done properly on the issue of negligence as well as on every other material issue. What is the showing that the court did not properly submit the case to the jury on the issue of such negligence? A partial history of the case which admittedly does not contain, and does not purport to contain, all the evidence adduced on such issue.

When an appellant shows that error was committed in receiving incompetent testimony which directly bore on a material issue in the case, the presumption will be indulged that it affected the verdict or the result of the trial. The burden is then cast on the other side to show that it could not, or did not, affect the result. The plaintiff was required not only to allege and prove negligence on the part of the defendant, but he was also required to allege and prove a resulting injury. To entitle him to recover, the one was just as essential and material as the other. The plaintiff testified to a state of facts tending to show a serious injury. The physician called in his behalf testified that the plaintiff sustained a fracture of the femur, and that the injury was permanent. The physicians called by the defendant testified that, from an examina

and testified to the effect that there was
nothing the matter with him except a slight
external bruise, and a swelling about the
hip. The testimony so given by them, and
erroneously admitted, directly bore and re-
lated to a material issue. The jury had the
right to believe them, instead of the plain-
tiff and the physician called in his behalf,
and to find the facts as testified to by them.
So believing and so finding from the incom-
petent testimony before them, the jury may
have believed that the plaintiff, in giving
his testimony, did not speak the truth as to
the nature and extent of his injuries, and
for that reason he likewise did not speak
the truth when testifying concerning the
question of the defendant's negligence or
that of contributory negligence. Finding
that the plaintiff had sustained no substan-
tial injury might also have influenced the
jury in determining questions as to the
speed and movements of the car, and the
manner in which it was operated and in
which the accident happened. It is not a
case of merely redundant or superfluous tes-
timony introduced to support a fact or is-
sue otherwise established by indisputable
proof. To the contrary, the testimony so
introduced directly tended to refute, and
may have completely destroyed, the evi-
dence adduced on behalf of the plaintiff on
That the
an issue essential to his cause.
natural effect of the testimony tended to
injuriously affect the plaintiff on a material
issue cannot be gainsaid, and I cannot say,
nor do I think it shown, that the error com-
mitted could not, or did not, affect the re-
sult of the trial.

If the written statement made by the plaintiff was erroneously admitted, as I think it was, there ought not to be any ques-. tion as to its prejudicial effect, for some of the contents of that writing pertained directly to the issues of negligence and contributory negligence and may have influenced the jury in deciding them in favor of the defendant.

Lastly, I cannot agree with the conclusion that, even upon the evidence in the record, a prima facie case was not made entitling the plaintiff to go to the jury on the question of the defendant's negligence. In the first place, the written statement signed by the plaintiff and delivered to Dr. Van Cott ought to have been excluded. In the next place, while the plaintiff, in giving his testimony, admitted that the signature to the writing was his signature, yet he also testified that the injury received by him rendered him partly unconscious, and that he was in a dazed and in a semiconscious condition on the evening of the accident, and had no clear recollection of Dr. Van Cott's visit, and because of his mental condition he had no recollection of any writing signed by him

The

I

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I think the judgment of the court below ought to be reversed, and the case remanded for a new trial.

STATE ex rel. TUMWATER POWER & WA-
TER CO. v. SUPERIOR COURT OF
THURSTON COUNTY.

(Supreme Court of Washington.

-TIME.

Dec. 11,

1909.)
CERTIORARI (§ 39*)-APPLICATION FOR WRIT
While the statute fixes no time in which to
apply for a writ of review, it must be applied
for within the time fixed for taking an appeal;
so that a writ to review the dismissal on May
4th of an answer in intervention in condemna-
tion proceedings will not issue, where it was
not applied for within 30 days after entry of
the order, as required by 2 Ballinger's Ann.
Codes & St. § 5645, in cases of appeal from a
final order in condemnation proceedings; and
that intervener's appeal from the order was
pending for several months from June 16th did
not excuse failure to apply for the writ before

that date.

[Ed. Note. For other cases, see Certiorari, Cent. Dig. §§ 57, 60-63; Dec. Dig. § 39.*]

En Banc. Application for a writ of review by the State, on the relation of the Tumwater Power & Water Company, against the Superior Court of Thurston County; John R. Mitchell, Judge thereof. Application denied.

tor on that visit. Whether the jury believed the question of the defendant's negligence,
the plaintiff or the doctor, who testified that even upon the evidence found in the record,
the plaintiff was conscious and conversed to let the case go to the jury.
rationally, and that he signed the statement
after it was written by the doctor and read
to the plaintiff, I do not know. It was with-
in their province to find either way.
question of whether the plaintiff knowingly
and understandingly made the statements
and signed the writing was in dispute. The
evidence bearing thereon was conflicting.
Looking at the evidence most favorable to
the plaintiff on the issue of defendant's neg-
ligence, it, in substance, is shown that the
plaintiff boarded the defendant's car. As it
was approaching Ninth South, he paid his
fare when demanded, and told the conduct-
or that he desired to leave the car at Ninth
South. The conductor said, "All right."
The car slowed down. The plaintiff arose
from his seat and went to the back plat-
form, and stood there a few seconds, and
when the car about reached the north side
of Ninth South, a place where the car usual-
ly stopped coming from the north, and, as
testified to by him: "Just when they was
going slow, I stepped down on the step.
thought they were going to stop.
It was pretty near stopped, maybe not quite
stopped." While so standing there, the car
started up quickly, and, as testified to by
him, he "fell off." While he does not, by
the use of any direct language, say such
movement of the car threw him off, yet I
think such fact may be fairly inferred from
all the testimony given by him. True, he
also testified that he knew the machinery
of the car was controlled by the motorman,
and that he did not inform him of his de-
sire to leave the car, and that he did not
know whether the conductor pulled the bell
cord to stop, but thought he did. I think
I think
the triers of fact may find, upon such evi-
dence, that when the plaintiff informed the
conductor that he wanted to leave the car
at Ninth South, and the conductor replied,
"All right," he had done quite enough to
apprise the operatives of the car of his in-
tended destination, without also going for-
ward and informing the motorman, or with-
out being able to testify positively that he
saw the conductor pull the bell cord. After
he informed the conductor that he desired to
leave the car at a particular place, and the
car slowed down, almost stopping at such
place, as testified to by the plaintiff, the
triers of fact may say that he had the right
to assume that it did so to afford him and
others an opportunity to alight therefrom,
and that while he was so standing on the
step in the presence of the conductor, and
in readiness to alight, the speed of the car
was quickly increased, and no sufficient op-
portunity given him to alight, and that he
was injured in consequence thereof. I think
a sufficient prima facie case was made on

G. C. Israel, Martin L. Pipes, George H.
Funk, and Frank C. Owings, for relator.
A. J. Falknor and Troy & Sturdevant, for
respondent.

MOUNT, J. This is an application for a writ of review. It appears therefrom that the Olympia Light & Power Company brought an action against the Olympia Brewing Company to condemn certain property which was alleged to be necessary for a public use, the title of which property was alleged to be in the brewing company. The relator intervened in that action, and filed an answer therein. The Olympia Light & Power Company filed a demurrer to that answer, which demurrer was sustained by the trial court, and on May 4, 1908, the intervener was dismissed. Forty-three days later, viz., on June 16, 1908, the intervener in that action, the relator here, appealed from the order of dismissal to this court. That appeal was dismissed on October 28, 1909, for the reason that the order was not an appealable order. Olympia Light & Power Company v. Tumwater Power & Water Co., 104 Pac. 778. Thereafter, on November 11, 1909, this application was filed here for a writ to review the order of May 4, 1908, dismissing the intervener from the condemnation case.

While the statute fixes no time within which the writ of review must be applied

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[Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. §§ 1946, 1947; Dec. Dig. § 534.*]

4. APPEAL AND ERROR (§ 895*)-REVERSAL— MISCONDUCT OF TRIAL JUDGE-CASE TRIABLE DE Novo.

for, we have held by analogy that the writ [ 3. BILLS AND NOTES (8 534*)-REASONABLE ATTORNEY'S FEES. must be applied for within the time fixed for taking an appeal. State ex rel. Lowary v. Su-sonable attorney's fee, that plaintiff's attorney In an action on a note providing for a reaperior Court, 41 Wash. 450, 83 Pac. 726; was his regular counsel, receiving an annual State ex rel. Alexander v. Superior Court, 42 retainer, and, in addition, a fixed sum for all Wash. 684, 85 Pac. 673. The time within The time within actions brought or defended, could not affect the reasonableness of the fee to be allowed. which an appeal may be taken from a final order in condemnation cases is fixed by law at within 30 days after the entry of the judgment. 2 Ballinger's Ann. Codes & St. § 5645. The time for prosecuting the writ of review had expired when the relator sought to appeal to this court from the order now sought to be reviewed. It was too late at that time to prosecute the writ of review. No excuse is offered why the writ was not applied for within the 30 days after the order was entered, and none appears here now. The fact that an appeal was pending in this court from June 16, 1908, until October 28, 1909, is, of course, no excuse for not prosecuting the writ of review prior to June 16, 1908.

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En Banc. Application for writ of review by the State, on the relation of the Tumwater Power & Water Company, against the Superior Court of Thurston County; John R. Mitchell, Judge thereof. Application denied.

G. C. Israel, Martin L. Pipes, George H. Funk, and Frank C. Owings, for relator. Troy & Sturdevant, for respondent.

PER CURIAM. The application in this case is based upon the same facts as those in No. 8,465, just decided, 105 Pac. 815. For the reasons there stated, it must be denied.

HILLMAN v. STANLEY. (Supreme Court of Washington. Dec. 14, 1909.) 1. PLEDGES (8 58*)-NOTE-INDORSEMENT AS COLLATERAL-RIGHT OF INDORSEE.

The indorsee of a note as collateral for a loan is the owner thereof, and he may collect the full amount from the maker, regardless of the state of the account between himself and the person from whom he received the note, in the absence of a defense against the note in

the hands of the indorser.

[Ed. Note.-For other cases, see Pledges, Cent. Dig. § 187; Dec. Dig. § 58.*] 2. BILLS AND NOTES (§ 405*)-ACTIONS-DEMAND-SUFFICIENCY.

An action on an overdue note, payable in money to the payee or his order, brought by the indorsee, is a sufficient demand for payment to authorize a recovery.

[Ed. Note. For other cases, see Bills and Notes, Dec. Dig. § 405.*]

The misconduct of the trial judge trying a case without a jury, resulting from his using language addressed to counsel for the defeated party, not warranted by the circumstances, is not ground for a new trial in a case triable de novo in the appellate court.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3648; Dec. Dig. S95.*]

Department 1. Appeal
Appeal from
from Superior
Court, King County; W. T. Warren, Judge.

Action by Clarence D. Hillman against Frank M. Stanley and another. From a judgment for plaintiff against both defendants, subsequently amended so as to constitute a judgment against defendant Frank M. Stanley alone, he appeals. Affirmed.

John E. Humphries and Geo. B. Cole, for appellant. Frederick R. Burch, for respondent.

FULLERTON, J. This action was brought to recover upon a promissory note, executed by the appellant as maker to one George Mead as payee, and, by Mead, indorsed to the respondent. The action was begun originally against the appellant and his wife in an effort to charge the community property of the appellant and his wife with the lien of any judgment that might be obtained in the action; it being alleged that the note was given for a community debt. A trial was had resulting in a judgment against both husband and wife. Subsequently, however, the respondent moved to dismiss the action as to the wife, and an order was entered to that effect in the records, although the judgment itself seems not to have been amended in that particular. Thereafter this appeal was taken.

The appellant, in his answer, alleged that the note was received by the respondent as collateral security to an indebtedness owing by Mead to the respondent. This allegation was not denied in the reply, and the appellant now insists that it is a defense to the note pro tanto-that is to say, the respondent cannot recover from the appellant any greater sum than was owing him by Mead. But this is not the rule. The indorsee of a promissory note, even though he took it as collateral to a loan, is the owner of the note, and can collect the full amount of the sum from the maker regardless of the state of the account between the indorsee and the person from whom he received it. If the maker had a de

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