An instruction, in an action by a husband and wife for injuries to the wife in a collision between automobiles, that if plaintiffs, or either of them, were guilty of negligence which occasioned or contributed to the collision, there could be no recovery, was not objectionable as imposing on plaintiffs the duty of exercising extraordinary care and prudence, especially where the court further charged that the mere fact that plaintiffs were riding in an automobile of a third person did not make them, or either of them, responsible for the negligence or contributory negligence of the third person, but that it was only the contributory negligence of plain tiffs themselves which caused or contributed to the accident that would bar a recovery. [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 705-713, 715, 716, 718; Dec. Dig. 296.*] 5. MUNICIPAL CORPORATIONS (§ 706*)-COLLISION ON STREET-INSTRUCTIONS-MISLEADING INSTRUCTIONS. as to the extent of plaintiff's injury was not prejudicial. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4187-4193, 4207; Dec. Dig. § 1056.*] 9. APPEAL AND ERROR (§ 528*)-QUESTIONS REVIEWABLE-RECORD ON APPEAL. Affidavits in support of a motion for new trial, which appear in the clerk's transcript, but which are not attached to the motion or referred to therein, nor embodied in the statement of facts, are not a part of the record and cannot be considered on appeal. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2374, 2384-2388; Dec. Dig. § 528.*] Department 1. Appeal from Superior Court, King County; King Dykeman, Judge. Action by J. B. Van Dyke and wife against D. A. Johnson and others. From a judgment for defendants, plaintiffs appeal. Affirmed. J. B. Van Dyke and Milo A. Root, both of Seattle, for appellants. Peters & Powell, of Seattle, for respondents. MAIN, J. The purpose of this action was to recover damages for personal injuries sustained by Mrs. Van Dyke, one of the plaintiffs, when two automobiles collided. The plaintiffs are husband and wife. The defendants D. A. Johnson and Rose Johnson, his wife, are the parents of Harold P. Johnson, the other defendant. The cause was tried to a jury. From a verdict and judgment in favor of the defendants, the plaintiffs have appealed. An instruction, in an action by a husband and wife for injuries to the wife, in a collision between automobiles, that it was admitted that the husband just before the collision reached over, with a little child in his arms, to the rear of the driver and dropped the child out on the left-hand side of the machine, and submitting to the jury the question as to whether the husband interfered with the operation of the automobile, was not misleading for using the words "in his arms" instead of stating that he took the child "by the arms," as shown by the evidence. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1518; Dec. Dig. of Tenth Avenue North and East Aloha street 706.*] 6. APPEAL AND ERROR (§ 216*)-REVIEW-INSTRUCTIONS-REQUESTS-NECESSITY. Where, in an action by a husband and wife for injuries to the wife in a collision between automobiles, the court, in submitting the question of the negligence of the driver of the car occupied by plaintiff and his wife, stated in general terms that, where a person in sudden emergency was called to act quickly, the law did not require of him the same degree of care as it might in a case where he had time to deliberate, and submitted the issue whether an act of the husband was contributory negligence, without calling the jury's attention to the same rule, the omission was not reversible error, in the absence of a request to charge the rule in determining the issue of contributory negligence of the husband. [Ed. Note. For other cases, see Appeal and Error, Dec. Dig. § 216;* Trial, Cent. Dig. 8 627.] 7. APPEAL AND ERROR (§ 216*)-INSTRUCTIONS -REQUESTS-NECESSITY. An instruction on the subject of the credibility of witnesses, correct so far as it goes, cannot be complained of, in the absence of a request for a more complete instruction on the subject. [Ed. Note.-For other cases, see Appeal and Error, Dec. Dig. § 216;* Trial, Cent. Dig. § 627.] The accident occurred at the intersection in the city of Seattle. Tenth Avenue North 8. APPEAL AND ERROR (§ 1056*)-HARMLESS On July 21, 1912, one Mrs. Childs was drivERROR-ERRONEOUS RULINGS ON EVIDENCE. ing her five-passenger Ford car south along Where, in an action for a personal injury, a verdict was rendered for defendant, the error, the west side of Tenth Avenue North. With if any, in rejecting evidence of medical experts Mrs. Childs, as her invited guests, were the For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes plaintiffs, a Miss Ostrum, and a Mrs. Lloyd. | court told the jury that the burden of proof Mrs. Childs sat in front on the left side and was upon the plaintiffs to establish the matedrove the automobile. Mr. Van Dyke sat rial allegations of their complaint by a fair in the front seat on the right-hand side, and preponderance of the evidence, and that “a held on his lap Mrs. Childs' little girl, then corresponding duty devolves upon the deaged about nine years. The three ladies fendants to establish their affirmative defense above mentioned occupied the rear seat. The by a like preponderance of the evidence." automobile was traveling at the rate of 10 The plaintiffs made no request, so far as the miles per hour. When it was approximately record shows, that the issues be stated more nine feet north of the north edge of the side- completely, nor did they call the trial court's walk on the north side of East Aloha street, attention to the matter in any form at the Mrs. Childs and Mr. Van Dyke saw the de- time the instructions were given. It was fendants' automobile approaching from the doubtless through inadvertence that the jury west, traveling rapidly east on Aloha street. were not told that the affirmative defense was The plaintiffs' evidence tends to show that denied by the reply. It does not seem that the Johnson machine at this time was approx- the jury could possibly have been misled by imately 120 feet west of the line of Tenth this oversight. The instruction that the deAvenue North, and was on the right-hand fendants must prove their affirmative defense side of the center of East Aloha street. Ac-by a fair preponderance of the evidence cording to the defendants' evidence, the John- would negative any inference that such deson automobile was somewhat nearer Tenth fense was not denied. The evidence in fact Avenue North than 120 feet at this time. showed that this defense was controverted. Both cars continued in the direction they were going. A little to the southeast of the center point of the intersection of the streets named, the cars collided. The point of contact between the cars was the right front of the car Mrs. Childs was driving with the left center of the Johnson car. Mrs. Childs apparently, upon seeing that a collision was imminent, turned her car to the left. The Johnson car maintained its direction. [2, 3] It is next claimed that the court erred in instructing the jury that unless the driver of the Johnson car was negligent in respect to excessive speed, and that this negligence was the proximate cause of the collision, the verdict should be for the defendants. The objection urged against this instruction is that it fails to submit to the jury other charges of negligence that are alleged in the complaint. The instruction subWhen Mr. Van Dyke realized that a colli- mits to the jury the issue upon the question sion was at hand, thinking of the welfare of of the defendants' negligence, as made by the the little girl upon his lap, he took her by evidence. The court could not properly subthe arms and passed her back of her mother mit a charge of negligence, as made in the over the lefthand side of the car, and dropped complaint, if it were not supported by some her to the pavement. The child escaped evidence. In saying that the instruction was without injury. When the cars collided, the as broad as the evidence, we are not unmindFord car, which Mrs. Childs was driving, ful of the fact that the complaint charges was overturned, and Mrs. Van Dyke suffered negligence in failing to sound the horn, as rethe injuries for which this action was in-quired by the city ordinance. The purpose of stituted. Other facts will be referred to in connection with the consideration of the points to which they may be particularly germane. [1] It is first claimed that the trial judge committed prejudicial error in stating the issues to the jury, in that he failed to state that the affirmative defense contained in the answer was denied by a reply. The court stated the allegations of the complaint in general terms, and concluded this statement with the suggestion that "all of which will more fully appear from an examination of the pleadings in this case, which you will be permitted to take with you to your jury room." The jury were then told that certain allegations of the complaint were admitted, and that others were denied, and that, by way of an affirmative defense, it was alleged that the accident was due to the negligence of Mrs. Childs in the operation of her car. The attention of the jury was not specifically directed to the fact that the affirmative defense pleaded was denied by a reply. In the sounding the horn would be to give warning and apprise others of the approach of a vehicle in time to avoid accidents. The uncontroverted evidence is that Mr. Van Dyke and Mrs. Childs both saw the Johnson car approaching when they were within 9 feet of the north line of the sidewalk on the north side of East Aloha street, and at that time the Ford car was traveling at the rate of 10 miles per hour; the other car, as they claim, being approximately 120 feet down East Aloha street. Having seen and observed the car, sounding of the horn would have been of no additional efficacy in avoiding an accident. As to the other negligent acts on the part of the driver of the Johnson car, which it is claimed should have been submitted to the jury, reference is made in appellants' opening brief to paragraph 4 of the complaint. In the reply brief our attention is directed to the abstract, where an excerpt from this paragraph of the complaint is quoted. But no evidence is pointed out which sustains any charge of negligence other than that of [4] It is next contended that the court erred in instructing the jury that if the plaintiffs, or either of them, were guilty of negligence which occasioned or contributed to the collision, no recovery could be had. It is claimed that the giving of this instruction imposes upon the plaintiffs the duty "of exercising extraordinary care and prudence." We do not so understand the instruction. The language of the instruction is that if "the plaintiffs, or either of them, were themselves guilty of negligence which occasioned or contributed to the collision of the cars," then a verdict could not be returned in their favor. In this language there is no basis for the claim that the instruction imposes upon the plaintiffs the duty of exercising extraordinary care and prudence. The jury were further instructed that the mere fact that the plaintiff's were riding with Mrs. Childs in her automobile would not make them, or either of them, responsible for her negligence or contributory negligence, but that it was only the contributory negligence of the plaintiffs themselves which caused or contributed to the accident that would bar their right to a verdict. [5, 6] It is next urged that the court erred in instructing the jury relative to the act of Mr. Van Dyke in lifting the little girl who was sitting upon his lap, and passing her out on the left-hand side of the machine to the pavement. The instruction is that: "It is admitted by the plaintiff Van Dyke that just prior to the collision he, sitting on the right-hand side of the car, reached over to the rear of Mrs. Childs, who was driving this machine, with a little child in his arms, and dropped her out on the left-hand side of the machine. * The subsequent part of the instruction submits to the jury the question as to whether this act interfered with the operation of the machine by Mrs. Childs, and thereby brought about or contributed to the collision. The particular objection to the instruction is that the court used the language "in his arms" instead of that he took her "by the arms." The court in the instruction was referring to an admitted fact as a preface to the statement of a rule of law. The jury had heard the evidence as it was detailed, and could not have been misled by the language used in the instruction. The objection is technical rather than substantial. It is also claimed that this instruction ignores the fact that Mr. Van Dyke was acting in the presence of imminent danger, and was not required to exercise that degree of care which would be imposed upon one where there was time for thought or deliberation. The instruction correctly submits to the jury whether the act of Mr. Van Dyke was contributory negligence. In the previous instruction, in general terms, the jury had been told that: "Where a person in sudden emergency is called to act quickly, the law does not require of him or her the same degree of care, skill, and judgment as it might in a case where he or she has plenty of time to deliberate and consider." This language, it is true, is the concluding sentence of an instruction which submitted to the jury the question of Mrs. Childs' negligence in the operation of the car. No request, as applied to Mr. Van Dyke, was made for an instruction calling the jury's attention to the rule that, where a person in a sudden emergency is called upon to act quickly, the law does not require of him the same degree of care, skill, and judgment as it might in a case where he has time to deliberate and consider. In the absence of such a request, no error can be predicated upon the instruction as given. [7] It is next contended that the court erred in the instruction which it gave upon the subject of the credibility of the witnesses. The objection to this instruction is that it is an incorrect and incomplete statement of the rule on that subject. It is true that this instruction is somewhat more abbreviated than one which is many times given. But its brevity does not make it erroneous. Had a more complete instruction upon this subject been desired, it should have been requested. So far as the record shows, the plantiffs presented no requests for instruc tions. [8] The next assignment of error deals with the ruling of the court in rejecting certain testimony offered by the plaintiffs. This testimony was that of two medical experts, and went to the question of the extent of the injury. Whether these rulings were correct is not material upon this appeal. The evidence offered and rejected did not go to the right to recover, but to the amount thereof. The jury by its verdict found that there was no right of recovery. Therefore evidence bearing upon the extent of the injury or the amount of damages would not be here material. It is next claimed that the court erred in overruling the plaintiffs' objection to the defendants' examination of certain witnesses. Without reviewing in detail this objection, it may be said that it is without merit. [9] Finally it is contended that the motion for new trial should have been granted by the trial court because of the facts stated in certain affidavits which were filed by the plaintiffs in support thereof. These affidavits appear in the clerk's transcript. They are not attached to the motion or referred to in it. Neither are they made a part of the record by being embodied in the statement of facts. Under the decisions of this court, the affidavits are not a part of the record. Swanson v. Pacific Shipping Co., 60 Wash. 87, 110 Pac. 795; Spokane Turn-Verein, 64 Wash. 208, 116 Pac. 627; International D. Co. v. Sanger, 75 Wash. 546, 135 Pac. 28. The judgment will be affirmed. CROW, C. J., and ELLIS, CHADWICK, and GOSE, JJ., concur. [Ed. Note. For other cases, see Injunction, Cent. Dig. §§ 586-598; Dec. Dig. § 252.*] 2. COURTS (§ 493*) STATE AND FEDERAL COURTS JUDGMENT-CONCLUSIVENESS. Where the state and federal courts both had concurrent jurisdiction over a matter, a judgment of the state court from which no appeal was taken to the federal Supreme Court concludes the parties; the state court first having acquired jurisdiction. [Ed. Note. For other cases, see Courts, Cent. Dig. § 1346-1352; Dec. Dig. § 493.*] 3. INJUNCTION (§ 235*)-DISSOLUTION-LIABILITY ON BOND. Plaintiffs, after bringing an action in the state court to enjoin a city from enforcing an ordinance, instituted a similar action in the federal court where an injunction was granted. Judgment went against plaintiffs in the state court, and, being set up in the federal court as an estoppel, the injunction was dissolved and the action dismissed. Held that, while one who secures the dismissal of an injunction upon a matter arising subsequent to the commencement of the action which has no bearing directly upon the merits cannot recover on the injunction bond, the dissolution of the injunction and dismissal of the action by the federal court, though based upon a matter arising after the institution of the action, was upon the merits, and the city could recover on the bond in the federal court. [Ed. Note. For other cases, see Injunction, Cent. Dig. §§ 529-537; Dec. Dig. § 235.*] 4. INJUNCTION (§ 252*)-BOND-LIABILITY. In a suit on an injunction bond, judgment may be rendered for the amount of the bond, with interest from the time the action is brought. [Ed. Note. For other cases, see Injunction, Cent. Dig. §§ 586-598; Dec. Dig. § 252.*] Department 2. Appeal from Superior Court, Pierce County; W. O. Chapman, Judge. Action by the City of Tacoma against the Sperry & Hutchinson Company and others. From a 'judgment for plaintiff, defendants appeal. Affirmed. Bates, Peer & Peterson, of Tacoma, for appellants. T. L. Stiles, of Tacoma, for respondent. MOUNT, J. This action was brought to recover upon an injunction bond. It was .tried upon an agreed statement of facts, and resulted in a judgment in favor of the plaintiff. The defendants have appealed. The facts are as follows: On July 7, 1911, the defendant Sperry & Hutchinson Company brought an action in the state court to enjoin the city of Tacoma and its officers from attempting to enforce an ordinance which provided for a license fee for every person using trading stamps within the city of Tacoma. The complaint in that action alleged that the ordinance was unconstitu tional and void under both the state and federal Constitutions. The ordinance in question is set out in full in the case of Sperry & Hutchinson Co. v. Tacoma, 68 Wash. 254, 122 Pac. 1060. While that action was pending in the state court, the same plaintiff brought an action in the United States Circuit Court against the same defendants, alleging that the ordinance was void for the same reasons stated in the complaint in the state court, and applied for a temporary or der enjoining the enforcement of the ordinance. A temporary order was issued, as prayed for, upon the filing of a bond in the sum of $1,000, which bond was conditioned as follows: "Now, therefore, if the said Sperry & Hutchinson' Company shall pay all damages and costs which may accrue by the issuance or continuance in force of said restraining order, not exceeding in amount the original named sum of $1,000, then this obligation to be null and void; otherwise to remain in full force and effect." The defendants filed a demurrer to the complaint in the state court, which the trial court sustained.. The plaintiff in the action in the state court thereupon elected to stand upon the complaint and a judgment of dismissal was entered. An appeal was prosecuted from that judgment to this court, where the judgment of the lower court was affirmed. Sperry & Hutchinson Co. v. Tacoma, supra. While that case was pending in this court upon appeal, the defendants appeared in the federal court and interposed a plea in bar, alleging the commencement of a suit by the plaintiff against the same defendants in the state court, supported by the same allegations, and praying for the same relief as the suit pending in the federal court. This motion was denied in the federal court. After this court had decided the case upon appeal, the defendants in the federal court pleaded the judgment in the case as an estoppel. Upon this plea the federal court dismissed the action. See Sperry & Hutchinson v. Tacoma (D. C.) 199 Fed. 853, holding, in substance, that the questions decided by the state court were res judicata of the questions pending in the federal court. Thereafter this action was brought upon the bond as above stated. [1-3] The appellants contend that the liability upon the bond must be determined by rules laid down by the decisions of the federal court, whether the action is brought upon the bond in the state or in the federal court. Assuming this to be the rule, we are of the opinion that there was a liability upon the bond. The general rule is stated in 2 High on Injunctions, § 1649, as follows: "That upon the dissolution of an injunction and failure on the part of the obligors to comply with the conditions of the bond, a right of action at once accrues." The effect of the decision of the federal court was that the injunction was wrongfully issued. Having been wrongfully is sued, whatever damages the city suffered fore collected from these persons or made thereby were recoverable upon the bond. The appellants also contend that because the case was dismissed in the federal court for a reason which occurred after the action was begun in that court, that there can be no recovery upon the bond. The rule as stated in 2 High on Injunctions, § 1649b, is that: "Where a defendant secures the dismissal of an injunction action and the dissolution of a preliminary injunction upon a matter which arises subsequent to the commencement of the action and which has no bearing directly or indirectly upon the merits of the injunction suit, such dismissal is not such a final adjudication by the court that plaintiff was not entitled to the injunction as will give a right of action against the sureties upon a bond conditioned for the payment of such damages as may be sustained by the defendant if the court should finally decide that the plaintiff was not entitled to the injunction." any attempt to prosecute them are entirely immaterial. The bond was given to the city to protect the city against damages which would follow in case the injunctional order was issued. The city has suffered damages to the extent of the bond, and was entitled to recover thereon. [4] The appellants contend that the judgment is for a larger amount than the bond. It is for the amount of the bond, with interest from the date the action was brought. This is clearly within the rule that a recovery may be had for the face of the bond, with interest from the date the action is brought. We find no error. The judgment is therefore affirmed. CROW, C. J., and MAIN, FULLERTON, and ELLIS, JJ., concur. (25 Cal. A. 577) BUCKLEY v. MARIN COUNTY. fornia. Oct. 7, 1914.) 1. APPEAL AND ERROR (§ 977*)-REVIEW-ORDER GRANTING NEW TRIAL. But we are of the opinion that this rule does not apply to this case, because the matter which subsequently arose did have a direct bearing upon the merits of the injunction suit. As stated, Sperry & Hutchinson had begun an action in the state court. That action was pending when another action of (District Court of Appeal, Third District, Calithe same kind upon the same ground, demanding the same relief, and against the same parties, was brought in the federal court. While the federal court had concurrent jurisdiction with the state courts upon the questions presented (11 Cyc. p. 1003), the state court had obtained jurisdiction of the parties and of the subject-matter, and the decision of the state court upon the questions presented was final and binding upon the parties, and upon the federal court, unless the same was appealed from. No appeal having been prosecuted from the state court to the United States Supreme Court, the judgment of the state court became final and binding, both upon the federal court and upon all of the parties. In other words, the eral, it will not be reversed unless it appears Where an order granting a new trial is genthat the order itself was an abuse of discretion. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3860-3865; Dec. Dig. § 977.*] 2. APPEAL AND ERROR (§ 979)-REVIEW-OrDER GRANTING NEW TRIAL. The granting or denying of a new trial for insufficiency of the evidence rests so fully in the discretion of the trial court, where there is a substantial conflict in the evidence, that its action is conclusive upon an appellate court, unless it appears that there has been an abuse of such discretion, and it is immaterial whether the evidence is insufficient to sustain all, or only a portion, of the issues on which the judgment de pends. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3871-3873, 3877; Dec. Dig. $ 979.*] 3. CONTRACTS (§ 294*)-PERFORMANCE-SUBSTANTIAL PERFORMANCE. a contract To authorize a recovery on which has not been fully performed, there must be a substantial performance, and the contractor must have attempted in good faith to perform the contract. Cent. Dig. 88 1352, 1357-1361; Dec. Dig. 8 [Ed. Note. For other cases, see Contracts, 294.*] matters which arose subsequent to the commencement of the action in the federal court had a direct bearing upon the injunction suit, and the dismissal of the case in the federal court recognized that rule and was, in effect, a judgment that the injunction was wrongfully issued. The fact that the federal court in other cases had held this and other ordinances of this character void, did not justify the appellants in prosecuting the same action in the state courts and in the federal courts at the same time, especially where the action was first brought in the state court. Nor does it show that the application for an injunction in the federal court was in good faith or fairly entertained. It is agreed in the statement of facts that the city was prevented by the injunctional order from collecting license fees from 42 persons who were using trading stamps. By Thos. P. Boyd, of San Rafael (W. B. Crockreason of the injunction the city was there- er, of San Francisco, of counsel), for appelfore injured in at least the penalty of the lant. Sullivan, Sullivan & Roche, of San bond. The facts that the city had never be- Francisco, for respondent. Appeal from Superior Court, Marin County; George H. Buck, Judge. Action by John E. Buckley against the From orders denying deCounty of Marin. fendant's motion for judgment on a special finding, and granting plaintiff's motion for a new trial, defendant appeals. Affirmed. *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 144 P.-35 |