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condition for the uses the invitation author- , consequently entitles it to a reversal in this ized him to make of them, which duty it court with instructions to enter a judgment failed to perform. It is true the appellant in its favor. But while it is true this court extended no express invitation to the re has held that an instruction, even if erronespondent to enter upon its premises, but it ous or wrongfully given, is binding and concontracted with Richardson to so enter, and clusive upon the jury, and ground for reby its contract gave him express authority versal if the jury refuse to heed it (Pepperall to employ the respondent. But, in the ab v. City Park Transit Co., 15 Wash. 176, 15 sence of such express authority, the rule is Pac. 743, 46 Pac. 407; State v. McGilvery, that the servant of an independent contract 20 Wash. 210, 53 Pac. 11.5; Dyer v. Middle or engaged in work for the contractor on Kittitas Irr. Dist., 40 Wash. 238, 82 Pac. the premises of the proprietor is deemed to 301), we think this question is not presented be thereon big invitation of the proprietor, in this record. The question was not raised, and the proprietor owes him the same duty as we have shown, by the motion for nonsuit, to provide for his safety that it owes to since the court was bound to deny that mothe contractor himself, namely, that he will tion if it found that the evidence justified a maintain the premises in a reasonably safe recovery on another theory than that outlincondition for the uses the contractor or serv ed in the complaint, and it is not raised by ant is entitled to make of them, and will not this instruction, since the appellant not only expose him to hidden dangers of which he is did not except to it, but expressly requested not aware, but which are known to the em that it be given, and consequently is now plorer. Thompson on Vegligence, $$ 690,

estopped from asserting that there was no 968. 979; John Spry Lumber Co. v. Duggan, evidence in the record on which to base it. 80 Ill. App. 391; Bennett r. Railroad Co.. But, if we were to concede that the ques102 U. S. 577. 26 L. Ed. 2.33. So in this case,

tion was properly before us, we would hesiif the respondent's version of the occurrences tate to declare the verdict against the eviis to be believed, the appellant owed the re dence. Whether a person employed to do a spondent the duty of either covering or specific piece of work is a servant of his emguarding the tank into which he fell, or gir-ployer or an independent contractor is often ing him timely warning of its existence, and, a question difficult of solution, and frequentfailing in this, it rendered itself liable for

ly depends upon the answer given to the the injuries received by him.

question: What is the proper conclusion to The appellant argues, however, in this con be drawn from the facts proven? Where the nection, that the complaint proceeds upon the proper conclusion is doubtful, or where diftheory that the respondent was in the employ ferent minds may legitimately draw different of the appellant. and that, unless the re conclusions from the facts proven, the quesspondent proved that fact, the appellant was tion whether such person is a servant of the entitled to have its motion for judgment or lairer or an independent contractor is for the for a directeil verdict granted. But the mo jury, and the trial court is in duty bound tions of the appellant were nothing more to submit the question to them. It seems to than challenges to the sufficiency of the evi us that this record presents such a state of dence, and the rule is that the challenge must facts. Without going into an analysis of the be denied if the evidence itself makes a case evidence, we think the jury may well have against the hallenging party, whether the

found that Richardson was a mere employé case made falls strictly within the pleadings of the appellant, and authorized by it to or not. To hold otherwise would be to deny employ the respondent on its behalf. This the plaintiff the benefit of the statutes relat

lat being true. there is no error in the court's ing to amendments. It may be that in this

charse, even under the appellant's conception case, owing to its somewhat peculiar cir

of the state of the record. cumstance, the appellant would have been en

On the question of the excessiveness of the titled to have the respondent elect on which

verdict, we think the appellant has cause to of these divergent principles he intended to complain. While the respondent was badly rely, and compelled him to amend his com

burned and suffered severely for a time thereplaint if he elected to rely on the principle

from, we think it not of such a permanent that he was on the premises as an invitee

character as to warrant the amount awardof the appellant; but, as no such request was

ed him. The judgment should not exceerd made, the respondent cannot be held to be in

$1,700. default because he did not amend.

If, therefore, the respondent will remit The appellant insists, also, that since the

from the judgment within 30 days after the

remittitur reaches the trial court the sum of court at its request charged the jury to the

$1.000, the judgment will stand aflirmed as effect that they could not find for the re

to the remainder ($1.700) and (osts taxed in spondent unless they found that he was an

that court. If, hor"ver, he fails to so remit employé of the appellant at the time of the

within the 30 days, the judgment will be reaccident, and since. as it contends further.

versed and a new trial : Wärded. The appelthere was no evidence before the jury that

lant will recover costs in this court. he was such an emplovésuch charge became the law of the case, and entitled it to a ver HADLEY. C. J., and CROW and RUDdict and judgment in the trial court, and KIN, JJ.; concur.

OF

(47 Wash. 37)

contended by appellant. The court correctly MUIR V. BECK et al.

found it to have been for $1,300. In fact, the (Supreme Court of Washington. Sept. 5, 1907.) appellant E. F. Beck admitted that he had SPECIFIC PERFORMANCE - PERFORMANCE

executed a contract of sale, and afterwards CONDITIONS-SUFFICIENCY OF EVIDENCE. a deed, to Choput expressing $1,300 consideraEvidence in an action for specific perform

tion. The cost of grading $15, and the cost ance of an agreement to convey lots to plaintiff, as consideration for his selling lots for

of abstracts $96, being a total of $141, should defendants, held sufficient to sustain a finding have been paid by appellants, but were, in that he had sold lots for defendants for the fact, paid by respondent. Respondent is amount and within the time stipulated by their

therefore entitled to a credit therefor against contract as a condition to his having the con

the $3,500. This would leave $5,351 as the veyance.

net sum due appellants under the contract Appeal from Superior Court, King County;

for sales made within the six months. ApGeorge C. Hatch, Judge.

pellant's testimony caused the trial court to Action by B. L. Muir against E. F. Beck interrupt him on two or three occasions, and and another. Judgment for plaintiff. De

correctly suggest that his statements resolved fendants appeal. Affirmed.

the issues of fact in favor of respondent.

Thereupon appellant would always urge some Gray & Stern and James A. Snoddy, for

mistake or misunderstanding. He was grantappellants. Vince. H. Faben, for respondent.

ed time to make final computations, and,

after doing so testified, without making any CROW, J. On or about March 6, 1903, detailed statement, that he had received in the defendants E. F. Beck and Mary A. Beck, money and time contracts, for all sales made his wife, who had recently purchased block by respondent, within the six months, the 72, Burke's Second addition to Seattle, for total sum of $5,270; but he never admitted $3,000, entered into a written contract with haring received the extra $150 on the Choput the plaintiff, B. L. Muir, which, in substance, sale, which he did in fact receive. If this provided that the property should be sub $150, the $15 for grading, and $96 for abdivided into lots, to be sold by the plaintiff, stracts be added to the $3,270 admitted by Muir, at not less than agreed minimum him, there would be a total of $5,561 to be prices; that abstracts of title were to be fur charged against him on sales made by renished by the defendants Beck and wife at spondent within six months from the date of a cost of not more than $5 per lot; that the the contract, which more than constituted expense of subdivision, surveying, platting, performance by respondent. and clearing, not to exceed $45, should also Other assignments of error are made, such be paid by Beck and wife; that the plaintiff, as wrongful exclusion of evidence, incorrect Muir, was to receive a commission of 5 per amount of recovery, and improper form of cent. on all sales made by him; that, if judgment, all of which, after careful conwithin six months plaintiff had sold lots for sideration, we conclude are without merit. cash and on time to the total value of $5,500 Substantial justice has been done by the final over and above his commission, then all lots decree entered, which is accordingly affirmed. remaining unsold were to be conveyed to him by the defendants Beck and wife as addition HADLEY, C. J., and MOUNT, FULLERal compensation for his services. The plain TON, and RUDKIN, JJ., concur. tiff, claiming to have sold the required number of lots, commenced this action to compel the defendants to convey to him all lots not

(47 Wash. 96) sold, and for an accounting for the proceeds

STERN V. DANIEL. of certain lots which he alleged the defend. ants had wrongfully sold after the expiration

(Supreme Court of Washington. Sept. 6, 1907.) of the six months and after the plaintiff's 1. EVIDENCE-LETTERS. completion of the contract. The trial court In an action for attorney's services, letters made findings, and entered a decree in favor

written by defendant to plaintiff which showed

that defendant was engaged in leasing buildings of the plaintiff. The defendants have appeal for immoral purposes were admissible, though ed.

they reflected on defendant's business character, Several assignments of error are made, but

to show that plaintiff rendered services to de

fendant in the way of advice and consultation the appellant's principal contention is that

in regard thereto, for which plaintiff was ensufficient lots were not sold within the six titled to recover. months to net them $5,500 over and above 2. WITNESSES-PRIVILEGED COMMUNICATIONS. respondent's commission. The trial court

Such letters, though privileged as between

either plaintiff or defendant and third parties, found that such sales had been made. After

were not so as between themselves. considering all the evidence and making careful computations based thereon, we conclude Appeal from Superior Court, Spokane that this finding is correct. The substantial County; Miles Poindexter, Judge. dispute between the parties was whether a Action by Samuel R. Stern against R. T. certain sale of three lots made by the re

Daniel. From a judgment for plaintiff, despondent, Muir, to one Choput, was for $1.305 fendant appeals. Affirmed. as contended by respondent, or only $1,150, as.

See 88 Pac. 1116.

A. E. Barnes and Geo. A. Latimer, for ap letters which were written to respondent by pellant. Horace Kimball and Samuel R. the appellant were introduced in evidence, Stern, for respondent.

These letters showed that appellant was engaged in leasing buildings for immoral pur

poses. But these letters were admissible to Respondent brought this acMOUNT, J. tion to recover from appellant for the value

show that respondent had rendered services of services rendered as an attorney and

to the appellant in the way of advice and concounselor for appellant between July 1, 1903,

sultation in regard thereto, for which re

spondent was entitled to recover. The mere and January 1, 1906, and also for disbursements alleged to have been made for appel

fact that these letters reflected upon the busilant on account of certain cases then pending

ness or character of appellant was not suffiin court. The trial was to a jury, and re

cient reason for excluding them. If thes sulted in a verdict in favor of respondent in

were prejudicial on this account, that preju

dice is not manifest in the verdict rendered. the sum of $1,000. The court denied a motion

It is also claimed that these letters were for a new trial, and entered a judgment on the verdict in favor of respondent in the

privileged, and that the court erroneously adsum of $1,000. The defendant appeals.

mitted them. They would have been priviThe complaint alleged the value of the serv

leged, no doubt, as between either of the parices to be the sum of $2,305, and the amount

ties to this suit and third parties; but as of disbursements to be $795.32, making a

between the attorney and client the rule of total of $3,100.32. On this total the complaint privilège will not be enforced where the

client charges mismanagement of his cause alleged payments by the respondent amounting to $1,422.23. The answer admitted the

by the attorney, as was the case here, and employment of the respondent by the appel

where it would be a manifest injustice to lant, but denied that the services performed

allow the client to take advantage of the rule by the respondent were of the value alleged of privilege to the prejudice of his attorney,

or when it would be carried to the extent in the complaint, and admitted the payment of $1,422.25, which it is alleged fully paid

of depriving the attorney of the means of respondent for his services and disburse

obtaining or defending his own rights. 23 ments. The answer also alleged three affir

Am. & Eng. Enc. of Law (2d Ed.) p. 79; Mitmative defenses, substantially as follows:

chell v. Bromberger, 2 Nev. 345, 90 Am. Dec.

550. It was therefore not error to allow these (1) That respondent needlessly expended the sum of $197.92 in the defense of Wright v.

letters in evidence. Daniel, which the respondent should have

It is also argued that the court erred in known was a useless waste of money; (2) permitting

permitting certain hypothetical questions that in the case of Wright v. Daniel, owing

proposed to attorneys as witnesses upon the to the unskillful manner in which respond question of the amount of reasonable fees. ent defended said case, it became necessary

The questions as finally permitted were, we for appellant to employ other counsel at an

think, in accordance with the plaintiff's eviexpense of $350, to assist respondent therein;

dence and supported by it, and therefore (3) that, in the case known as the "Pattee

were not erroneous. Case," appellant was also required to employ

We find no reversible error in the record. other counsel at an expense of $100, on ac

The judgment must therefore be affirmed. count of the unskillfulness of respondent.

HADLEY, C. J., and CROW, FULLERBecause there was no evidence to support these three affirmative defenses, they were

TON, RUDKIN, and DUNBAR, JJ., concur. each taken from the consideration of the jury. It is claimed by the appellant that the court erred in not granting a new trial, because (1)

(47 Wash. 1127 of insufficiency of the evidence to justify the

GRANT et al. v. SPOKANE TRACTION CO. verdict; (2) the jury was prejudiced against (Supreme Court of Washington. Sept. 6, 1907.) the appellant; (3) the fees were excessive upon their face, and because certain exhibits

1. TRIAL – FINDINGS INCONSISTENT WITH

GENERAL VERDICT. were erroneously allowed in evidence. A cur

A complaint in an action for personal insory reading of the plaintiff's testimony dis juries by a passenger against a street railway closes that there is ample evidence to justify company alleged that while the car was motionthe verdict, if the jury believed it, which

less, and plaintiff was alighting therefrom, and

about the time she placed one foot on the pavethey evidently did, and we find nothing in the ment, the other being on the step of the car, amount of the verdict to justify the conten the car was negligently started. The jury in a tion that the jury were prejudiced against plaintiff was standing with both feet on the

special verdict found that, when the car started, the appellant.

steps of the car. Held, that the special verdict The complaint prayed for a balance of $1, did not negative the general verdict that the 678. There was evidence to support the judg

car was started while plaintiff was alighting,

which was the gist of the negligence charged. ment for this amount. But the jury found for

[Ed. Note.-.For cases in point, see Cent. Dig. but $1,000, which was, in our opinion, a con

vol. 46, Trial, $ 857.) servative finding. There was evidence in the case which may have had a tendency of preju

2. SAME-CONSTRUCTION OF SPECIAL VERDICT.

Where a special verdict is susceptible of dice against the appellant. For example, two constructions, one of which will support the

big.

general verdict and the other will not, that con ceeded by invitation of said defendant to struction will be given to the special verdict

alight from said car while it was motionwhich will support the general verdict.

less, and while so in the act of alighting [Ed. Note. For cases in point, see Cent. Dig. vol. 16, Trial, $ 872.]

from said car, and at or about the time said 3. WITXESSES-CROSS-EXAJIXATIOX.

plaintiff placed one foot upon the street, Where, in an action for personal injuries

while the other foot was upon the step of by a passenger against a street railway com said car, said defendant carelessly and negpany, it appeared on the direct examination of

ligently started said car, and dragged said plaintiff's husband that he was commonly called "doctor,” and that, when the conductor asked

plaintiff Nellie M. Grant for a short distance, him his name, he handed him a handbill, contain finally throwing her violently to the ground, ing his name, picture, location of his office,

thereby injuring her. and advertisement of his methods of treatment,

Plaintiff's' evidence cross-examination was properly permitted as to

substantially conformed to these allegations; whether he was a licensed practitioner, wheth but the jury found by the special findings er he prescribed for his wife, and the handbill above quoted that at the time the car startwas properly admitted in evidence, the jury being entitled to know who the witness was and

ed the plaintiff Mrs. Grant was standing the character of his business.

with both feet on the steps of the car, and (Ed. Note.For cases in point, see Cent. Dig. one foot was not on the steps and the other vol. 50, Witnesses, $$ 1106-1108.]

on the pavement. Defendant contends upon

these special findings that the jury found Appeal from Superior Court, Spokane

against the case alleged in the complaint, County; Mitchell Gilliam, Judge.

but permitted recovery upon another state of Action by Nellie M. Grant and another

facts. A number of cases are cited to the against the Spokane Traction Company.

effect that a plaintiff cannot allege one state From a judgment for plaintiff, both parties

of facts and recover upon another, and this appeal. Affirmed.

contention thus broadly stated is no doubt Graves, Kizer & Graves, for appellant. the rule (Albin v. Seattle Electric Company, Danson & Williams, for respondents.

40 Wash. 51, 82 Pac. 145); but the negligence

alleged here is that the car was motionless, MOUNT, J. Action for personal injuries.

and that the defendant carelessly started The plaintiff Nellie M. Grant was injured the car while plaintiff was in the act of while alighting from a street car operated

alighting therefrom, "and at or about the by defendant. The cause was tried to a

time said plaintiff had placed one foot upon jury. A general verdict for $1,700 was re

the street, while the other foot was upon the turned in plaintiffs' favor. Special inter steps of said car.” This last clause servei rogatories were submitted to the jury at

to fix the time and position of the plaintiff defendant's request, and were answered by

when the car was started. It did not fix the jury as follows: "(1) Was the plaintiff either exactly, but only at or about a cerNellie M. Grant standing with both feet on

tain time. The gist of the negligence was the steps of the car when it started? Ans.

in starting the car while plaintiff was in the Yes. (2) If so, did she attempt to get off, or act of alighting. If plaintiff was in the act did her husband, B. M. Grant, pull her off of alighting when the car started, and was after the car had started, and while it was injured thereby, without fault on her part, in motion? Ans. She attempted to get off, and

she was entitled to recover. We understand was assisted by her husband. (3) Was the that defendant concedes this to be the rule. plaintiff Nellie M. Grant standing with one

It might be extremely difficult for any one to foot on the step and one foot on the pave know to a certainty whether both feet were ment and in the act of getting off when the on the steps, or one was without support, in car startel? Ans. Yo." Thereafter the de space, between the step and the pavement, or fendant moved the court for a judgment one was on the step and the other on the notwithstanding the general verdict, and pa vement upon an occasion like the one in the plaintiffs moved for a new trial. Both question, where the car was started while the motions were denied, and a judgment enter passenger was in the act of alighting. The ed upon the general verdict. Both parties to details which fix the exact moment or posithis action have appealed.

tion of a person under such circumstances as The defendant contends that the special existed in this case are usually arrived at findings are inconsistent with the general by a process of reasoning rather than liy verdict, and therefore control it, and plain memory, so that a person may easily be mistiff's contend that the court erred in permit taken as to the exact position at a fixed ting certain cross-examination of the plain time. No doubt in this case the starting of tiff B. V. Grant while he was a witness in the car, the plaintiff standing with both feet behalf of plaintiffs. The complainant alleg upon the steps and with one foot on the step ed that "the defendant's said car was stop of the car, while the other was in space, and ped by said defendant for the purpose of one foot upon the step while the other was uppermitting plaintiff Wellie M. Grant and on the pavement, all occurred simultaneously, other passengers to alight from said car, or so nearly simultaneously that the differand thereupon plaintiff Nellie J. Grant pro- | ence in time was imperceptible.

As sug.

gested above, the statement of one of these positions by the pleader was for the purpose of fixing the time at which the car was started. If the car was started at either one of the times, the negligence was the same, because all of the acts necessarily took place almost simultaneously while the plaintiff was in the act of alighting. The careless starting of the car while plaintiff was in the act of a lighting was the negligence both alleged and proved. We are of the opinion that the finding of the jury that the plaintiff was standing with both feet on the steps of the car when it started did not negative the general verdict to the effect that the car was started while plaintiff was in the act of alighting from the car, and therefore does not change the cause of action. There was no finding that the plaintiff was not in the act of alighting from the car when it was started. The most that can be claimed for the special findings is that they are susceptible of that construction. “Where a special verdict is susceptible of two constructions, one of which will support the general verdict and the other will not, that construction will be given the special verdict which will support the general verdict.” McCorkle v. Maliory, 30 Wash. 632, 71 Pac. 186. We think the court did not err in refusing to render judgment for defendant notwithstanding the general verdict,

When the plaintiff B. M. Grant was a witness, it developed upon his direct examination that he was commonly called "doctor." He also testified that, when his wife was injured, the conductor of the car asked him his name, and, in reply thereto, the witness handed the conductor a small handbill, containing his name, picture, location of his office, and an advertisement of his methods of treatment. On cross-examination counsel for defendant was permitted to ask the witness if he was a licensed practitioner, and if he had prescribed for his wife; and counsel for defendant was also permitted to introduce the handbill above mentioned in evidence, and question the witness concerning the same. We see no impropriety in this cross-examination. The jury were entitled to know who the witness was and the character of his business. Plaintiff contends that the object of the examination was to prejudice the witness before the jury; but we find nothing either in the examination or in the substance of the evidence in the record to justify a reversal upon this ground alone. There was certainly no abuse of discretion on the part of the trial court in respect to the cross-examination of this witness.

The judgment is therefore affirmed, without costs to either party.

(47 Wash. 148) COX V. CAPITOL BOX CO. (Supreme Court of Washington. Sept. 7, 1907.) 1. MASTER AND SERVANT - CONTRIBUTORY NEGLIGENCE.

Whether an employé injured while operat: ing & ripsa w was guilty of contributory negligence held, under the evidence, for the jury.

[Ed. Note. For cases in point, see Cent. Dig. vol. 34, Master and Servant, $$ 1089-1142.] 2. SAME — ASSUMPTION OF RISK – QUESTION FOR JURY.

Whether an employé injured while operating a ripsaw, in consequence of his hand coming in contact therewith, on a co-employé jerking away the lumber attempted to be sawed, assumed the risk, held, under the evidence, for the jury.

[Ed. Note. For cases in point, see Cent. Dig. vol. 34, Master and Servant, $$ 1068-1088.] 3. SAME-NEGLIGENCE OF MASTER-QUESTION FOR JURY.

In an action by an employó for injuries received, held, that the question of the negligence of the employer in placing the co-employé, who was 16 years of age and inexperienced, at work at the place, or in neglecting to properly instruct his co-employé how to do the work, or in failing to warn both the employé and the coemployé of the incidental danger, was for the jury.

[Ed. Note. For cases in point, see Cent. Dig. vol. 31, Master and Servant, $$ 1044-1050.]

Appeal from Superior Court, Pierce County; W. 0. Chapman, Judge.

Action by James D. Cox, a minor, by Mrs. Kate Alden, guardian ad litem, against the Capitol Box Company. From a judgment for plaintiff, defendapt appeals. Aftirmed.

R. S. Eskridge and Philip Tindall, for appellant. Govnor Teats, for respondent.

HADLEY, C. J. This is an action to recover damages for personal injuries. There was testimony to support the following facts: The defendant is a manufacturer of boxes, and among other things it makes grape boxes from veneer. In the process of making the grape boxes, it cuts two ventilators in each end of the veneer with a ripsaw. The ve neer is cut into strips from 16 to 18 inches in length, and of proper width for making into boxes. Several hundred of these strips are then tied into a bundle, and, with the strips standing on end, the bundle is from 16 to 18 inches high and of equal or greater length across the table. After they are tied up, the bundles are taken to a ripsaw table for the purpose of cutting the ventilators. The guide of the ripsaw table is placed at the proper distance from the saw, and, while the bundle stands upon the ends of the strips, it is pushed by the operator across the saw, which cuts the ventilators. All guards are removed from the saw, and it is left fully exposed; this being necessary in order to cut the slits for ventilating purposes. The saw is exposed above the table about an inch and a half or two inches, which is the depth of the slits cut in the veneer. Two persons are required to handle the bundles

HADLEY, C. J., and CROW, FULLERTON, RUDKIN, and DUNBAR, JJ., concur.

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