not in the case? Able attorneys do not usually waste 15 pages of printed brief on a subject-matter not before the court. In their first brief, at page 42, respondent's attorneys use this language: "A verdict for $50,000, the whole amount demanded, would have been amply sustained by the evidence. Surely defendant has no right to complain of the $33,000 verdict which was rendered." Does this sound as though counsel believed the question of the amount was not involved? When they say (as just quoted) that appellant "has no right to complain of the $33,000 verdict," does that look as if they had no dea that appellant was complaining? On page 40 of said brief, after speaking of the amount of the verdict, respondent's counsel say: "If this be true, defendant cannot complain of error relating to fixing the measure of damages." In the light of these statements, how can it be said they did not know that the question of the amount of recovery was involved and made no argument touching it? On page 19 of its reply brief, appellant uses this language: 66* * and had they (the jury) believed him, manifestly this monstrous verdict of $33,000 could never have been rendered." Can any one read this and believe that appellant was making no complaint about the amount of the verdict? On page 29 of said brief appellant says: "We submit that the errors complained of were each and all prejudicial." This does not read as if appellant was waiving any of them. In its petition for rehearing at page 2, appellant assigned its first ground in the following language: "(1) Mistake on the part of the court in assuming, at the top of page 5 of the opinion, that the amount of judgment is not called in question.'" Does this not show plainly that appellant was calling in question the amount of the judgment? On page 10 of the same brief appellant says: "How can it be told how much was added to the verdict because of the shameful spectacle improperly permitted in the cross-examination of Dr. Potter?" A similar remark follows as to the matters covered by another assignment. In preparing and presenting their numerous briefs and arguments, respondent's counsel knew of the matter which we have just quoted from appellant's petition for rehearing; knew that appellant was urging that the amount of the verdict and judgment was excessive and was in question. Knowing this, they had the privilege and right to argue the matter. If they did not wish to do so, the fault, if any, is not with the court. Their briefs, however, show that the question was argued. To be sure, they filed a typewritten protest against appellant's raising the question in one of its briefs on rehearing, and they make the statement, directly and indirectly, in other of their briefs, that the question of amount is not before the court, but it is impossible to read the many pages of their briefs bearing upon the question of amount and urging the right of

this court to reduce excessive judgments without seeing that the question was treated as being involved, and that the court was being shown that it had the power to reduce the amount rather than grant a reversal and a new trial unconditionally.

Respondent's counsel appear to think that appellant waived any question of excessive verdict because its attorney stated that he would not urge it upon the ground of "passion or prejudice," but insisted upon a reversal by reason of the errors alleged in the other assignments. As these latter covered the other, it was practically a "distinction without a difference," the means by which any passion or prejudice or other wrongful influence was produced being immaterial. It could make little difference to appellant whether the verdict was excessive from one cause or another. The material question being whether, as a matter of fact, it was excessive. In his petition for rehearing, appellant's counsel expressly and emphatically urges that the judgment was excessive. But respondent's counsel insists that we had no right or power to reduce the judgment and that our action has overturned all precedent. We could readily justify our procedure by citation to many authorities, but it is necessary only to refer to the argument of respondent's counsel himself and the authorities he cites. At page 3 of his brief in answer to appellant's petition for rehearing, he uses this language: "This court, in common with the majority of the courts of the United States, has always conceded to the courts the power to reduce verdicts when they are deemed excessive, even though they are not charged to have been induced by passion or prejudice." And in support of this statement he cites, with others, the following cases: Arkansas, etc., Co. v. Mann, 130 U. S. 69, 9 Sup. Ct. 458, 32 L. Ed. 854, where the verdict was reduced from $39,958.33 to $17,125; McDonough v. Railroad Co., 15 Wash. 244, 46 Pac. 334, judgment reduced from $7,500 to $5,000; Walker v. McNeil, 17 Wash. 582, 50 Pac. 518, reduction from $40,000 to $25,000; McDannald v. Railroad Co., 31 Wash. 585, 72 Pac. 482, reduced from $10,000 to $4,000; Stone v. Seattle, 33 Wash. 644, 74 Pac. 808, reduction from $9,000 to $6,000; Morrison v. Railroad Co., 34 Wash. 70, 74 Pac. 1064, reduced from $12,500 to $8,000; Gallamore v. Olympia, 34 Wash. 379, 75 Pac. 978, $8,040 to $5,000; Halverson v. Electric Co., 35 Wash. 600, 77 Pac. 1058, $20,000 to $10,000. He could have cited many more from this and other appellate courts. In the same brief, at page 11, he used this language:

The decisions of this court require the courts to weigh the evidence and pass upon the question whether the verdict returned is excessive, and, if in their opinion it is, to require its reduction." This is exactly what we have done. At page 13 of the same brief he says: "But this court has said so repeatedly that discretion lies with the trial

*

or appellate court to reduce a verdict deemed excessive, and that, not because of passion or prejudice, but because of its view of the evidence," etc. At page 42 of the same brief this language is used: "Unless this court has for years been usurping an authority it did not possess, an appeal to it to reduce an excessive verdict, however induced, would have been effective." These portions of his brief, and many others that might be quoted, emphatically uphold the very procedure this court has followed in this case. Then, again, in his brief on the first rehearing, at page 13, he says: "Had the error of which defendant complains not been committed, the jury might, and should, have awarded plaintiff $41,020," etc. would seem to be an admission that an error was committed of which defendant (appellant) did complain, and that it was an error affecting the amount of recovery.

This

same brief, at page 55. he says: "Year in and year out, during the whole period of its existence, has this court, upon the challenge of the defendant, reviewed the evidence in personal injury cases with respect to the amount of damages allowed, and in many, very many cases, in the exercise of its discretion to grant a new trial, required the remission of a portion of the verdict as a condition to denying a new trial." And at page 56 of the same brief he says: “*** In view of the many cases in which this court has required a remission from the verdict as a condition to denying a new trial, and in which, neither in the appellant's brief, nor in the opinion of the court, is there any suggestion that the verdict was induced by passion or prejudice, it is idle to contend that the power of the courts to require a remission from the verdict is limited to cases where the verdict appears to have been induced by passion or prejudice." He was then resisting appellant's contention for an absolute reversal and new trial. It is difficult to read said brief, especially from pages 54 to 58, and escape the conclusion that respondent's attorneys were inviting a reduction instead of an absolute reversal in case an affirmance could not be had, not expressly, of course, but by necessary implication arising from the language used. The correctness of these statements quoted from the briefs of respondent cannot be questioned, and they are as applicable now as when written. They show that juries cannot be treated as infallible, and that the court may and should correct their errors. If passion or prejudice on the part of the jury is shown, the court may reverse the judgment, or reduce it even if there is no other error in the case. On the other hand, if no passion or prejudice is shown, but errors as to admission or exclusion of evidence or as to instructions or as to any other matter appear, or if matters, permissible for certain purposes, are shown which this court believes had the effect of unduly augmenting the amount of the verdict, this court may give relief to the party injured

by said matters, and that relief may be by an absolute reversal, a modification of the judgment, or an order for a new trial conditioned upon the successful party declining to remit such a portion as may be indicated. This authority is given by the statute, and, as above admitted by respondent, has always been observed in the practice in this court. No valid reason is suggested why our action in following the usual practice was not justifiable in this case.

Respondent's counsel insists that appellant's counsel stated upon the first oral ar gument that "no question is made as to the amount of the verdict rendered." Appellant's counsel emphatically denies this and states that what he did say was that he would not urge that the verdict was excessive by reason of passion or prejudice of the jury. Appellant's version being in accord with its position as maintained in all of his briefs, we are constrained to believe that respondent's counsel may have misunderstood or failed to accurately remember the statement of opposing counsel. In fact in his brief, in answer to appellant's petition for rehearing, respondent's counsel, after using the expression above quoted, employs this language: "The writer, at this length of time, would not be sure those were the identical words employed," thus admitting that he does not remember accurately, although he avers that it was substantially as above quoted. Listening to an oral argument, it is easy to miss a portion of a statement and it is not at all uncommon to forget, or be mistaken as to, a statement made a year previously. Appellant's counsel in all of his briefs was contending that errors were made by which improper cross-examination of witnesses was permitted in the presence of the jury and improper evidence submitted to them all of which was calculated to, and did, make the jury bring in the large verdict. That an appellant on an appeal from such a verdict should make no complaint about the size thereof, would be a most remarkable omission. If it had no complaint to make of the amount of the verdict, why did it appeal? If the judgment had been nominal or for a small sum, it is inconceivable that any appeal would have been taken.

It is suggested that our decision is not in accord with some of the contentions of appellant's counsel. Because a case is decided in favor of a party, it does not follow that the court must accept the views of the attorney for such party upon all matters discussed. Appellant's counsel urged that errors had been committed by the trial court and that his client was entitled to an absolute reversal on account thereof. He did not believe that adequate relief could be accorded by anything less. We became satisfied that an injustice had been done his client, but we believed that he was not entitled to all he asked. Therefore we declined to reverse the case absolutely, but gave respondent his choice of reducing his judgment or

taking a new trial. Because we required $13,000 to be remitted or a new trial to be granted instead of granting a new trial absolutely, which would have wiped out the entire $33,000, we cannot see that we are inconsistent or that respondent's counsel has any cause of complaint. A court's decision in a given case should be construed in the light of the issues and the contentions therein. In passing upon assignments of error 2, 3, and 4, we did not announce that we found them without merit, but we held in effect that appellant's contention that they justified an absolute reversal could not be sustained. We believed there were matters covered by those asignments that well merited appellant's complaint, but we believed they went to the amount of the verdict, and that the wrong they accomplished could be adequately remedied by a reduction of the judgment, and that an unconditional reversal was not necessary. For instance, the evidence of respondent as to visits of the appellant's claim agent we held to be admissible for one purpose only. But, while we held it admissible for that purpose, it unavoidably served another purpose, and we could not shut our eyes to the fact that it was well calculated to impel the jury toward an excessive verdict. Then, as to the cross-examination of Dr. Potter, we believed there were conditions that prevented this, in itself, from being reversible error, yet no one could possibly doubt its potent influence upon the amount of the verdict. If any technical objection is urged to the wording of the opinion, a sufficient answer is that we were aiming at substantial justice as between these parties, being anxious to do what we believed to be just and right rather than being concerned about the nonessentials appertaining to technicalities and form.

The record in this case clearly shows that nothing short of an unreasonable, unjustifiable, technical construction of the statute and rules of court could sustain the contention made by respondent in this petition for rehearing. Turning from technicalities to considerations of justice and right. there is nothing to sustain him. Respondent met with a serious injury and his misfortune must appeal to any one with a human heart. But courts must be controlled by the facts and law, and not by sympathy or prejudice. Many persons suffering injuries as great as those of respondent have been awarded judgments much less in amount than $20,000. Counsel has not pointed out an instance where any person with injuries no greater than those of respondent ever recovered $20,000. We know of no such instance. None of the judges of this court dissented from the proposition that the verdict was excessive. Had it been an original proposition the court would have placed the amount less than $20,000, but, in order to sustain the verdict of the jury as far as we conscientiously could, it was decided to allow $20,000. We do not believe any

fair-minded, disinterested person can read the evidence without reaching the conclusion that $20,000 is a very liberal compensation for respondent's injuries. In the face of this record showing a grossly excessive verdict, in the face of our conviction that the amount of the judgment is unwarranted and wrong, we are urged to uphold the judgment. We are vigorously criticised for not so doing. We are requested to adjudicate the court powerless to rectify a gross injustice clearly shown by the record. As a justification for upholding this palpable wrong, we are urged to indorse a strained, highly technical interpretation of a rule of court, and an unfair and unreasonable construction of an oral concession or waiver of appellant's counsel. We decline to avoid our plain duty upon any such pretext. Courts will not be astute to invoke or apply technical constructions, or to indulge in fanciful refinements for the purpose of thwarting the demands of justice and right. Our Code and the spirit pervading our entire jurisprudence require that this and all courts in this state should endeavor to mete out substantial justice. Had we been controlled by strict technical considerations, we would doubtless have reversed the case and directed a new trial unconditionally. But we believed there could be virtually no question upon a retrial except that of the amount of the recovery. To obviate the trouble, expense, and delay of another trial, we deemed it to be in the interest of substantial justice to give respondent the option of a judgment for $20,000 or of submitting to a new trial. Under the law and facts of this case, if any one has cause for dissatisfaction, it is the appellant. But everything considered, we are satisfied that substantial justice has been done as between these parties. Each side has been heard by four briefs and two oral arguments. The evidence and entire record has been examined and considered most conscientiously, and the court has endeavored to be fair and just. Believing that respondent's rights have been in no manner prejudiced, his petition for a rehearing is denied.

MOUNT. J., and HADLEY and CROW, JJ., concur.

DUNBAR. J. I dissent. I should not feel it incumbent upon me to further discuss this case did I not feel that the court has misconstrued the position of counsel for respondent in the foregoing opinion. I have believed, and am constrained to believe yet, that this court has not heretofore, and does not now, understand the position taken by counsel for the respondent. It is true the counsel asserted that this court, in common with the majority of courts, had conceded to courts the power to reduce verdicts when they were deemed excessive, even though it was not claimed that the verdict had been induced by

passion or prejudice, and cited many cases to sustain that position. But, of course, in all such cases it was assumed that an assignment of error had been made that the judgment was excessive, and respondent's argument was made to show that such an assignment could be made in answer to the claim of the appellant that he could not assign "excessive verdict" because he did not claim that it was induced by passion or prejudice on the part of the jury, but was by reason of alleged errors made by the court. The majority, in order to sustain the conclusion announced, cite copiously from appellant's brief, pages 18, 22, and 26, where it is insisted that the court erred in relation to the admission of testimony, which errors were properly assigned and discussed; and then says: "It is plain that, if appellant's contention was sound, the error complained of must have tended to arouse passion and prejudice on the part of the jury, and to have placed before them improper evidence bearing very materially upon the amount of the verdict." It is difficult to see what relevancy this statement has, in the face of the opinion rendered by the majority on appellant's petition for rehearing where it was held that the court did not err in the particulars complained of. So that it must logically follow that, if there was no passion or prejudice on the part of the jury (which is admitted), and no error committed by the court which prevented a fair trial or tended in any way to arouse passion or prejudice (which is decided), the judgment should have been affirmed. The court, to sustain its conclusion in denying respondent's petition, says: "If passion or prejudice on the part of the jury is shown, the court may reverse the judgment or reduce it even if there is no other error in the case. On the other hand, if no passion or prejudice is shown, but errors as to admission or exclusion of evidence or as to instructions or as to any other matter are shown, which this court believes had the effect of augmenting the amount of the verdict, this court may give relief to the party injured by said errors, and that relief may be by an absolute reversal, a modification of the judgment, or an order for a new trial conditioned upon the successful party declining to remit such a portion as may be indicated." But no passion or prejudice on the part of the jury was shown, which fact has all along been conceded by the appellant, and which admission he pleads as an excuse for not making the assignment of excessive verdict. On the other hand, it has been decided by this court that there were no errors as to the admission or exclusion of evidence, or as to instructions, or as to any other matter which this court believed had the effect of augmenting the amount of the verdict.

Then what is the basis of the relief which the court has given? The palpable fact to my mind is, and that fact cannot be talked out of existence, that the present judgment of 87 P.-32

the court, as indicated by the majority opinion, is absolutely inconsistent with the judg ment rendered and opinion expressed on the appellant's petition for rehearing, and every argument which is made in support of the present opinion is an argument against the former opinion.

There is an attempted distinction made between assignments of error in regard to excessive verdicts and other assignments, but I will pass that by simply saying that I had always supposed that any and all contentions which might result in the reversal or modification of a judgment in whole or in part would fall within the same rule, and that a respondent would be equally entitled to defend his judgment, or any part of it, by argument made to this court, no matter what the assigned cause for its reversal was. In defense of the position now announced by the court, that this court will determine questions which are not assigned, the majority say that no cases have been decided where this or other courts have refused to take such cognizance, which are exactly like the case at bar, and all the cases cited by the respondent and in the dissenting opinion on the appellant's petition for rehearing in this case are thus brushed aside. No two cases present exactly the same state of facts, but multitudes of cases do embody the same principles, and this principle has been so often announced by this court that it would be idle to reproduce the citations here. But, if any argument were necessary to show the fallacy of the position contended for by the majority and the absurd results which will follow, it is furnished by the majority opinion where it sets forth the conflicting contentions of respective counsel as to what was admitted in oral argument concerning the justice of the amount of the verdict. If there had been an argument made in the brief as the law and rules of this court plainly provide. the issues would have been presented and understood without resorting to a discussion and analysis of conflicting oral statements by respective counsel and of aflidavits offered to show what the issues really were.

In conclusion, if the doctrine announced by the majority opinion prevails, viz., that no further assignment of error need be made in the brief than that the court erred in refusing to grant a motion for a new trial. and that no argument is required, then all that is necessary for an appellant to do is to make the one assignment-that the court erred in refusing to grant a new trial-and that brings before this court all the questions assigned upon the motion for a new trial, even though there be a hundred or more, without any notice whatever to opposite counsel as to what particular errors are relied upon, or what particular ones have been abandoned since the motion for a new trial was made. For it must be true that, if one of the grounds of motion for a new trial can be reviewed upon appeal without

an assignment or argument, they can all be reviewed a practice which, if it prevails, will lead to confusion and injustice.

(44 Wash. 361)

VAN SICLEN v. MUIR.

(Supreme Court of Washington. Nov. 13, 1906.) COURTS APPELLATE JURISDICTION-INJUNCTIVE RELIEF.

Where plaintiff was enjoined from using defendant's premises as a passageway to a houseboat anchored in a lake in front of the premises, and appealed to the Supreme Court, he could not maintain an application in that court to restrain defendant from interfering with the passageway, pending the appeal, since the Supreme Court's jurisdiction to grant injunctive relief is limited to cases where the appeal would be rendered ineffectual by a continuance of the acts restrained; plaintiff's remedy being to enforce the writ of supersedeas, or, if the acts were not within it, an action in the court of original jurisdiction.

Appeal from Superior Court, King County; Arthur E. Griffin, Judge.

Action by W. B. Van Siclen against B. L. Muir. From a judgment for defendant, plaintiff appeals. Application by plaintiff for injunctive relief pending appeal. Denied.

Arthur C. Dresbach and F. A. Gilman, for appellant. Vince H. Faben, for respondent.

FULLERTON, J. This is an original application made to this court for injunctive relief. From the record it appears that the appellant brought an action against the respondent in which he sought to restrain him from interfering with a certain houseboat which the appellant used as a residence. The respondent answered, denying that he had unlawfully interfered with the boat, and pleaded affirmatively that the appellant had anchored his boat in Lake Washington in front of his property, and used his property as a passageway to and from the boat; that the boat when anchored interfered with his littoral and riparian rights, in that it blocked his right of ingress and egress to and from his property to the waters of Lake Washington. He prayed an order enjoining the appellant from using his premises as a passageway, and requiring him to remove his boat from in front of his premises. On the trial the court ruled with the respondent, and granted the injunction requested. The appellant thereupon appealed, and gave a supersedeas bond. He now alleges that the respondent has interfered with the passageway leading to his premises, and has annoyed him in other ways, and he asks that this court restrain him from so doing, pending the appeal of his action to this court. It is not claimed that the respondent has committed any acts in violation of the supersedeas writ; but it is insisted that he has been guilty of acts in violation of the appellant's rights, which entitle him to relief independent of those in litigation on the appeal.

Manifestly the application must be denied.

While this court is empowered by the Constitution to issue any writ necessary and proper to the complete exercise of its appellate jurisdiction, it has no jurisdiction to issue writs of injunction against a party merely because he is respondent in an action on appeal in this court. To authorize such a writ the acts sought to be enjoined must be something pertaining to the appeal which will render the appeal ineffectual if continued in. No such case as this is made by this application. Here the acts complained of in no way affect the appeal, and the final determination of the appeal will not be affected whether or not the acts are restrained. The appellant has mistaken his remedy. If the acts of the respondent are in violation of the writ of supersedeas, then the relief is to seek the enforcement of that writ. If they are independent acts not within the supersedeas, then the remedy for them must be sought in the court of original jurisdiction.

The application is denied.

MOUNT, C. J., and RUDKIN, HADLEY, and DUNBAR, JJ., concur. ROOT and CROW, JJ., did not participate.

(44 Wash. 437)

STATE ex rel. GILLETTE v. CLAUSEN, State Auditor.

(Supreme Court of Washington. Nov. 19, 1906.)

1. RAILROADS-RAILROAD COMMISSION-POWERS-EMPLOYMENT OF EXPERTS-SALARYDETERMINATION-AUDIT.

Laws 1905, p. 145, c. 81, § 2, provides that the railroad commission may appoint a secretary at a salary of not more than $2,000 per annum, appoint such clerks as may be necessary at a salary not exceeding a maximum amount, "and such other persons as experts as may be necessary to perform the duties that may be required of them by the act." Section 12 requires the commission as early as practicable to ascertain the amount of money expended per mile in the construction and equipment of every railroad in Washington, the amounts paid the officers of railroad and express companies for salaries, and wages of employés, and for this purpose authorizes employment of sworn experts to make the inspection and to assist the commission. Held, that the commission had authority to employ an expert in ascertaining the cost of the construction of railroads and to fix a salary which in the absence of fraud could not be reviewed by the State Auditor under Ballinger's Ann. Codes & St. § 134, subd. 1, authorizing the Auditor to audit, adjust and settle all claims against the state except such as may be expressly required by law to be audited and settled by other officers or persons. 2. MANDAMUS-OFFICERS-NATURE OF DUTY. A mandamus proceeding against an officer under the statute possesses all the elements of a civil action, and it is therefore immaterial whether the duty sought to be enforced is ministerial, or one as to which the officer is required to exercise judgment and discretion. Fullerton, J. dissenting in part.

Mandamus by the state on relation of H. P. Gillette against C. W. Clausen, State Auditor. Petition granted.

H. A. Fairchild, for petitioner. John D. Atkinson, Atty. Gen., for respondent.