spondent of an application for an extension ing sufficient for the beneficiary to set forth of time in which to file the statement in the the contract and aver its breach on the part trial court, and to grant the application now of the insurer. This complaint, we are satmade would not only be to review a ques-isfied, sufficiently does this. tion twice decided, but would be to deny to the respondent rights guaranteed him by the statute. The statement of facts being stricken, the questions open for consideration relate wholly to the rulings of the court upon the demurrer and the preliminary motions of the appellant. [4] Again, the complaint does not show on its face a want of a cause of action. At most there is but a defective statement of a good cause of action. The complaint is capable of amendment, and, under the statute, when a trial on the merits is had, we are admonished to consider all amendments as [2] The first of the preliminary proceed- made which could have been made. Section ings of which complaint is made is the re- | 1752, Rem. Code. So here, in the absence of fusal of the court to require the respondent a statement of facts, we must presume that to furnish a bill of particulars to the extent demanded by the appellant. The de mand was for a copy of the certificate upon which the action was based, a copy of the by-laws of the appellant society, and a copy of the proofs of death. The court required a copy of the certificate to be furnished, but denied the motion as to the by-laws and the proofs of death. In this there was no error. A party is not required to furnish by a bill of particulars facts already in the posses sion of his adversary, nor is he required to furnish by that means copies of instruments as accessible to his adversary as they are to him. Certainly the appellant had possession and access to its own by-laws, and the proofs of death were in its possession, as these had to be furnished as a prerequisite to the respondent's cause of action. the case was tried as if upon a sufficient complaint, and that the evidence was sufficient to justify a recovery. It is true the statute provides (section 263, Rem. Code) that the objection that the complaint does not state facts sufficient to constitute a cause of action may be made at any stage of the proceedings either in the superior or Supreme Courts, but this statute must be read in the light of the statute above referred to which is later in time and which modifies it to the extent in which there is a conflict. [5, 6] The reply, in answer to the affirmative defense of a breach of condition to pay dues, set forth an agreement to carry the policy on notice of the insured's inability to pay because of illness. The motion against the reply was directed to this allegation, its purpose being to require the pleader to set forth the name and character of the officer of appellant to whom the notice of the insured's illness was given, and with what officer or person the alleged agreement was made. While the motion might well have been granted, the matter rested largely in the discretion of the trial court, and from the record before us, that is, from the pleadings, motion, and the ruling thereon, we are unable to say that the discretion was abused. In other words, the order being discretionary does not on its face show prejudice; it does not show that the appellant was taken by surprise, or that it was in any manner prevented thereby from presenting its defense. In the absence of such a showing we must presume in aid of the judgment that no prejudice existed. [3] In her complaint the respondent set forth the issuance of the benefit certificate to her father, that it remained in full force and effect until his death, that she was named as the beneficiary therein, that in due time and in accordance with the terms of the certificate she had submitted proofs and made demand for the amount agreed to be paid, and that payment thereon had been refused. There was no detailed allegation of the performance of every condition of the certificate, nor general allegation of the performance of all conditions, further than such as might be implied from the allegation of its issuance, and that it at all times remained in full force and effect. It is contended that for want of one or the other of these latter allegations the complaint is fatally defective, and that the demurrer there- The appellant cites the by-laws of its orto should have been sustained. But conced-ganization to the effect that no subordinate ing that the allegation to the effect that the lodge of the order has power to waive the benefit certificate was in full force and ef- payment of dues, and argues therefrom that fect at the time of the death of the insured no defense was stated by this particular alis not equivalent to a general allegation that legation. But the allegation is not that the all the conditions of the certificate have been subordinate lodge waived the payments, but complied with, still we think the complaint is that the appellant itself made the agreesufficient. In insurance policies of this sort ment and waiver. Nothing is shown to indiprovisions relative to keeping the insurance cate that the appellant itself did not have in force after the policy is once issued are such power, and no presumption arises to the contrary. conditions subsequent, wholly within the knowledge of the insurer and usually without the knowledge of the beneficiary. Under the general rule, therefore, it is matter of defense to be interposed by the insurer, it be The judgment is affirmed. MAIN, C. J., and PARKER, MITCHELL, MOUNT, TOLMAN, MACKINTOSH, and HOLCOMB, JJ., concur. (103 Wash. 130) spondents would pay the entire balance of from four of the dwellings and credit respondELECTRIC SALES CORPORATION v. RAD-ents with the sum charged therefor, the reFORD et al. (No. 14631.) (Supreme Court of Washington. July 10, 1918.) the account in full satisfaction and settle1. COMPROMISE AND SETTLEMENT 5(1) ment of all claims by either against the CONTRACT MEETING OF MINDS NECES- other. SITY. On these issues the cause was tried before Where written memorandum, compromising the court, who found that there was due from claim of mechanic's lienor, for installing electric system in certain houses, was made under misapprehension as to efficiency of apparatus in certain of houses, there was not such meeting of minds as to make agreement binding. 2. DAMAGES 123-INSTALLATION OF HEAT ING DEVICE-BREACH OF CONTRACT. Allowing for breach of contract to install efficient electric heating system, actual outlay made necessary by failure of heating system to work according to representations held to more nearly meet ends of justice than allowance of difference between value of realty with defective installation and its value if appliance had been as represented. the respondents to the appellant on the various causes of action sums aggregating $878.02, against which the respondents Radford were entitled to credits and damages under their counterclaim in the sum of $882.28, that the claims of each balanced and offset the claims of the other, and that neither party should recover costs. On such findings the court decreed that the appellant take nothing against the respondents, that the respondents Radford take nothing in virtue of their counterclaims, that each of the liens filed by appellant be canceled and annulled, and the title of respondents Radford and their granAction by the Electric Sales Corporation tees in each of the properties involved be against Colin O. Radford and others. From quieted as against any claim of the appelthe judgment rendered, plaintiff appeals. Af-lant. firmed. Department 1. Appeal from Superior Court, King County; John S. Jurey, Judge. Roberts, Wilson & Skeel, of Seattle, for appellant. Peterson & Macbride, of Seattle, for respondents. [1] It is first contended by the appellant that the court erred in failing to give effect to the alleged compromise agreement. It is claimed that under the agreement the appellant is entitled to payment in full of its claims against all the houses, with the exception of deductions allowed on the price charged for radiators and auto clocks to be withdrawn from four of the houses, which would leave a balance in appellant's favor of $759.63, after the allowance of all deductions to which the respondents were entitled. But a reading of the evidence convinces us there was not such a meeting of minds concerning it as would make a binding agreement. The written memorandum of the parties, made shortly after the meeting at which the compromise was broached, shows a misunderstanding, and, whether intentionally or not, representations were made by an officer of the appellant concerning the efficiency of the apparatus in certain of the houses which afterwards proved unfounded; the result being that the respondents had to remove the heaters from these houses, and install others of a different character. This caused a loss not contemplated when the compromise was under discussion, and we think the court rightly decided the agreement not obligatory. FULLERTON, J. The appellant instituted several actions for the foreclosure of mechanics' liens for the balances due on the installation of electric heating systems in seven different houses owned by the respondents Radford, setting up items aggregating $963.20. These actions were consolidated for purposes of trial. An affirmative defense was interposed by the respondents, in which they averred that, in reliance on the representations of appellant that its electric system would adequately heat the houses at a cost not to exceed 10 per cent. more than the ordinary coal furnace, they contracted with the appellant for the installation of its electric heating system; that such system was impractical and inadequate, and the cost of operating prohibitive; that the apparatus was so defective that it leaked oil, causing damage to the woodwork and furnishings of the houses; that the respondents removed, or caused to be removed, such heating apparatus from all except two of the houses; that the respondents were compelled to replace such apparatus with coal-burning furnaces; that they had paid out for wiring necessary for such system the sum of $230, for electric current for its operation $221.53, for expense of installation, on which they are entitled to refunds in the sum of $1,408.40; and that they have suffered general damage in virtue of the facts set forth in the sum of $5,000. By way of affirmative reply the appellant al-court. leged that on March 16, 1916, it was agreed [2] The appellant further contends that the between the parties that, if appellant would only measure of damages for breach of a conremove the radiators and auto time clocks tract to install heating appliances as repre Respecting the contention as to the insufficiency of the evidence to sustain the court's findings in the matter of offsets to which respondents were entitled by reason of the necessary outlays and damages suffered by them, we think the evidence shown in the record amply warrants the holding of the trial sented would be the difference between the value of the real property with the defective installation and its value if the appliances had been as represented. The sum allowed by the court was the actual outlay by the respondents, made necessary by the failure of the heating system which had been installed on the representations of the appellant that it was entirely adequate for the purpose de signed. We think, under the facts in the case, the rule followed by the court more nearly meets the ends of justice. The judgment is affirmed. MAIN, C. J., and PARKER, MITCHELL, and TOLMAN, JJ., concur. (103 Wash. 189) STATE v. HARRY JOHN. (No. 14588.) (Supreme Court of Washington. July 19, 1918.) 1. ASSAULT AND BATTERY 91-IDENTITY SUFFICIENCY OF EVIDENCE. In prosecution for assault by shooting, evidence as to identity of defendant held sufficient to sustain conviction. witness, by firing a number of shots from a revolver at the prosecuting witness. He was identified by at least four witnesses, who saw the occurrence and who did not hesitate to identify him. Where the evidence is positive, as it is in this case, it is not necessary that there should be a motive shown for the assault. The record convinces us beyond doubt that the appellant was one of the guilty parties. The judgment is therefore affirmed. MAIN, C. J., and CHADWICK, FULLERTON, and HOLCOMB, JJ., concur. (65 Colo. 133) CALUMET FUEL CO. v. ROSSI. (No. 8843.) TO WORK-MINES "TRAVELING WAY." A track in mine used for removal of coal, but not habitually used as a means of going to and from work, was not a "traveling way" within Rev. St. 1908, § 641, but was part of working 2. ASSAULT AND BATTERY 91 MOTIVE place which a miner should himself make safe. NECESSITY TO PROVE. Where evidence is positive as to defendant's guilt of assault by shooting, to justify conviction, it is not necessary to prove motive. Department 2. Appeal from Superior Court, King County; Kenneth Mackintosh, Judge. Harry John was convicted of assault in the first degree, and he appeals. Affirmed. William R. Bell and Walter S. Fulton, both of Seattle, for appellant. Alfred H. Lundin and Frank P. Helsell, both of Seattle, for the State. MOUNT, J. Appellant was convicted on a charge of assault in the first degree upon one Louie James. He appeals from a sentence based upon the verdict of the jury. He makes but one assignment of error, viz. that the verdict is contrary to the law and the evidence. It appears that on the 5th day of March, 1917, one Louie James, a Chinaman, was assaulted by two other Chinamen upon the streets of Seattle. While the prosecuting witness was walking along the street, two Chinamen, armed with pistols, began shooting at him. He escaped, and the appellant, Harry John, and another Chinaman were arrested. The other Chinaman pleaded guilty, and the appellant entered a plea of not guilty. [Ed. Note.-For other definitions, see Words and Phrases, Second Series, Traveling Way.] En Banc. Error to District Court, La Plata County; W. N. Searcy, Judge. Action by Peter Rossi against the Calumet Fuel Company. Judgment for plaintiff, and defendant brings error. Reversed and remanded, with directions. McCloskey & Moody, of Durango, for plaintiff in error. Perkins & Main and L. M. Perkins, all of Durango, for defendant in error. BAILEY, J. This case is here for the second time. The opinion on review of the first trial is reported in 60 Colo. 87, 151 Pac. 935, where the judgment was reversed and the cause remanded for another hearing. At the second trial plaintiff again recovered judgment, and it is that record which is now for consideration. In this opinion the litigants are designated as they were in the court below. Plaintiff while employed by defendant was injured by the fall of a slab of rock from the roof of a room in a coal mine. The room had been partially excavated by another before being turned over to plaintiff, and a track had been laid in the room for convenience in removing coal. At the time of the accident plaintiff was engaged in what is known as "pulling pillars," or removing the coal forming the partition wall between the room [1, 2] Appellant's contention appears to be where he was at work and an adjoining one. that there was no sufficient evidence of his The removal of this supporting pillar was identification, and that there was no motive preparatory to the abandonment of the room, shown for the assault, and that for these as upon the removal of pillars in a room the reasons we should hold that the evidence is roof usually falls. The track had been taken insufficient. There is abundant evidence in up for some distance to save it from being the record to identify the appellant as one of covered by débris, and props, supplied by the the parties who assaulted the prosecuting company for the purpose, were in place over For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes the remaining track, and at other places ly shown by the following quotation from where the roof appeared weak and seemed the former opinion (60 Colo. on page 89, 151 likely to give way. Pac. 935): It is claimed, and there is testimony to support the claim, that plaintiff was injured while on the track, and it is urged that the track was one of the travel ways of the mine, which defendant, under our statute, was bound to keep safe. The theory of the defense is that the track, and the entire room, was the working place of the plaintiff, and that conditions therein were constantly changing as a result of the work which plaintiff was doing; that therefore defendant was not responsible for the conditions existing in the room, they being better known to plaintiff than to any one else, as he was directly responsible for bringing about such conditions. It was definitely determined in the former opinion that the miner is responsible for the safety of the room constructed by himself in the course of his work. The following excerpt from 87 Am. St. Rep. 566, note, was quoted in that opinion with approval: "This rule that the mine owner is bound to use all reasonable care to render safe the place furnished by him to his employés, is applicable only when the place in which the latter are at work is such that it can be said to be a place 'furnished' by the mine owner. When, therefore, the employés are engaged in making their own place the rule does not apply. Where, for instance, the miners are engaged in cutting down or blasting out the face of a drift, it would be entirely unreasonable to demand of the owner that immediately after each blast he make safe the place which the explosion has created. In such case the miners may with reason be said to furnish their own place. The character of the place is continually changing by reason of the work itself. It is, therefore, uniformly held that as to those places which the employé in the progress of the work furnishes for himself, it is his duty and not that of his employé to use reasonable care to render them safe for further prosecution of the work." "If the plaintiff is entitled to recover it must be because he was injured on the track in question, and that track must be a passage way which falls within the class of ways which the mine operator is required to keep in a reasonably safe condition." There are a number of assignments of error, but it is plain, as upon the former review, that if the track within the room is to be considered as part of the working place of the plaintiff, and not a traveling way within section 641, R. S. 1908, the plaintiff cannot recover, because the rule requiring an employer to provide a safe working place has no application here, since the employé makes his own working place by his own labor, as a result of which the conditions in the room where he works are continually changing. Northern Coal Co. v. Allera, 46 Colo. 224, 104 Pac. 197; Creede United Mines Co. v. Hawman, 23 Colo. App. 125, 127 Pac. 924; and Calumet Co. v. Rossi, 60 Colo. 87, 151 Pac. 935, supra. The question of what may be considered a travel way in a mine of this character was discussed in Ricardo v. Central Coal & Coke Co., 100 Kan. 95, 163 Pac. 641, where the plaintiff was injured in a room that had been partially excavated by another, as in this case. The review court approved an instruction which defined a travel way as fol lows: "Webster defines travel to mean 'to journey over; to traverse; the act of traveling from place to place.' The same authority defines way to mean 'that by, upon, or along which one passes or progresses, opportunity of room to pass; place of passing; passage; road; street; track or path of any kind.' So I instruct you that under the words 'traveling ways' under the statutes in this State and in these instructions means a place habitually and necessarily used by a miner or by the miners in a coal mine to Also the following from Big Hill Coal Co. travel upon or through in going to and from v. Clutts, 208 Fed. 524, 125 C. C. A. 526: his or their working place or places." "Possibly the law as to the duty of the mine operator to exercise reasonable care to provide the miner a reasonably safe place in which_to work may be summed up in this way. The mine operator owes this duty except where it is the reasonable expectation of the parties that the miner himself shall look after his own safety. Generally speaking, such is the expectation where he is working in his [own] room digging coal, and hence the mine operator does not owe him such duty. On the other hand, generally speaking, it is not the reasonable expectation that the miner shall do so as to an entry, and hence there the mine operator does owe him such duty. But where the miner is engaged in driving or assisting in driving the entry, it is the reasonable expectation of the parties, that whilst he is so doing, as to the portion of the entry that is being driven, he shall look after his own safety, and hence the mine operator does not owe him such duty in regard thereto." The question as to the responsibility of for protecting the roof of the excavation from falling as the work progressed. But it was not the miner for the safety of his own room hav- the duty of the defendant to place the timbers. ing been definitely settled in the former deci-** The expression of the Supreme Court sion, the only matter left for consideration of this State, and the decision of the United is whether the track in question was a pas case justify the conclusion in the present action States Circuit Court of Appeals in the Baldi sage way. That this is the situation is clear-that the place where the plaintiff was injured The court then quotes with approval from Baldi v. Cedar Hill Coal & Coke Co., 173 Fed. 781, reported in 97 C. C. A. 505: "Colorado has a statuté almost identical with the statute of this State. In Baldi v. Cedar Hill Coal & Coke Co., * * * the United States Circuit Court of Appeals, Eighth Circuit, construed the expression 'traveling ways' as used in the Colorado statute. In that case the plaintiff and another person were engaged in removing dirt, coal, and rock through a place which, when completed, was to be used as a passageway or entry. The court there said: 'Under the factsin this case, we do not think the place where they were working was a traveling way at the time of the injury. * * * It was the same as what has been designated as a "room" in which coal is mined, and under the statute it was the duty of the defendant to furnish to plaintiff and his companion * the timbers necessary was not a traveling way within the meaning of certain lands and desert land claims in the the statute." In speaking of the duty of the court to determine the statutory meaning of the terms of the statute in relation to coal mines the court said: "The terms 'room,' 'entry,' 'traveling way,' and a number of others are used in the statutes, and must have definite and fixed meanings, applicable in all situations where the shaft, entry, room, and pillar system of mining is carried on. It follows that, when a place in a mine is definitely described and its relation to the other parts of the mine is fixed and certain, as being a place in a room, an air passage, or a traveling way, it is a question of law for the court to determine whether such place is or is not a traveling way." * neighborhood of a certin projected line of railroad which the said defendants then and there planned to promote and build from at or near the city of Delta, Colo., to the Fairview coal mine in said Delta county, offers from landowners to sell and options to plaintiff from such purchase and procure persons who would sell to landowners permitting plaintiff or assigns to plaintiff or his assigns, at the lowest price plaintiff could obtain, a total of 2,000 acres of land. "That defendants agreed to pay plaintiff for his services in procuring such offers, options, and persons who were ready, able and willing to sell to plaintiff or his assigns such lands, at the lowest price plaintiff could obtain, the sum of 5 per cent. of the purchase price of said lands, and said defendants agreed to furnish the money with which to make options and contracts on said lands in plaintiff's name for their use and benefit, and agreed that they would ecuted such options or make offers to sell said lands or were found by plaintiff to be ready, able, and willing to sell such lands as aforesaid, as soon as offers, options, and procured sellers were secured by plaintiff." In the case at bar the track in question was temporary only, being taken up or remov-purchase said lands from said persons who exed as the conditions of the work required, and was used solely as an accommodation for the miners working in the room, for the removal of coal. It was not necessarily or habitually used by any one, not even plaintiff himself, as a means of going to and from his place of work. It was in fact a part of his work ing place, and as such it must have been in the contemplation of all parties that the miner himself should make it safe for his own use, benefit and protection. It cannot, upon any theory, be considered a traveling way within the purview of the statute. It is then alleged that he procured in his own name for the defendants options to sell and offers by landowners to sell, and from persons ready, able, and willing to sell, to plaintiff or his assigns a total of 2,000 acres of land and desert land claims in the neighborhood of said projected line of railroad, for a total price of $61,250, which was the lowest price for which plaintiff could obtain The judgment must therefore be reversed said lands, and had fully complied with his and it is so ordered. The cause is remand-contract, and that there is due on said agreeed with directions to the trial court to dis miss it. Judgment reversed with directions. (65 Colo. 138) ZIEGLER et al. v. CORBIN. (No. 8929.) (Supreme Court of Colorado. May 6, 1918. Rehearing Denied July 1, 1918.) APPEAL AND ERROR 1010(1)-REVIEW-EV IDENCE SUPPORTING FINDINGS. Where record discloses ample evidence to sustain trial court's findings of fact, judgment rendered thereon will not be disturbed. Error to District Court, Delta County; Thomas J. Black, Judge. ment the sum of $3,062.50. For a second cause of action it is alleged that on the 19th day of October, 1914, the defendants so employed the plaintiff to procure for them an option to purchase an additional tract of land to be used for railroad terminal purposes, for which he was to receive 5 per cent. of the agreed value as his Commission. That he secured such option to purchase at the agreed value of $3,325, and that there is due the plaintiff on this contract the sum of $166.25. The answer denied that the plaintiff was employed by the defendants in their individual capacity, but that they were so acting as Action by E. S. Corbin against Watson the representatives of two corporations, viz. Ziegler and Charles G. Mantz. To review the Fairview & Intermountain Railway Comjudgment for plaintiff, defendants bring er-pany and the Grand Mesa Fuel Company, all ror. Affirmed. of which the plaintiff well knew and under John R. Smith and H. B. Woods, both of Denver, for plaintiffs in error. Millard Fairlamb, of Delta, for defendant in error. SCOTT, J. This is an action by plaintiff below, defendant in error, to recover from the defendants below the amount alleged to be due as a broker's commission for the purchase of certain lands for use in railroad, coal mining, and colonization purposes. The complaint alleged specifically: stood. It is further alleged by the defendants that they at no time accepted the option referred to in the second cause of action, all of which was controverted by the reply of plaintiffs. The cause was tried to the court without a jury. The evidence is voluminous and somewhat conflicting, but the court found all matters of fact in favor of the plaintiff and rendered judgment in his favor and against the defendants in the sum of $3,487.65. "That on or about the 27th day of June, 1914, A careful perusal of the record discloses defendants employed plaintiff to procure in the name of plaintiff for said defendants from divers ample evidence to sustain the court's findings persons who were then and there owners of of fact, and for such reason the finding and For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 173 P.-60 |