formed by Drs. Randolph and Austin. They time applied, or that anything more than a made an incision at the top of the shoulder, perfunctory examination of the arm and split the muscles longitudinally, severed cer-shoulder was at any time attempted. The tain minor muscles, cut the fibrous growth, first assertion is based upon the theory that and set the head of the humerus in the the undisputed evidence of the dislocation socket. The plaintiff has so far recovered found on March 25th was no evidence that that he can raise the arm to a level with his there was a dislocation on February 3d. shoulder, but cannot do work requiring a Standing alone, this, of course, would be but when considered in connection higher movement. There was evidence tend- true; ing to show that this condition will be per- with the evidence of a sufficient cause of manent. At the first trial an effort was made the dislocation on February 3d, and the testo show that the dislocation was caused by timony of both the respondent and his wife the manipulations of Drs. Randolph and Aus- that the shoulder had suffered no injury in tin on March 25th. That position was en- the meantime, and the testimony of Dr. Rantirely abandoned on the second trial. In its dolph indicating that the dislocation was stead, an affidavit of one Boetcher, a son-in-one of several weeks' and possibly two or law of plaintiff, which was admitted as evi- three months' standing, the condition of the dence to avoid a continuance, was read. It shoulder on March 25th became clearly comstated, in substance, that on a night early in petent evidence for the consideration of the March, 1912, plaintiff's wife went out for the jury as tending to establish a dislocation evening, leaving Boetcher at the house with at the time of appellant's first examination The question is not one of prethe children; that he heard a noise as of of the arm. some one falling; that he went to the door, sumption, but proof of a condition coupled found the plaintiff lying on the ground drunk with evidence negativing any other hypothto unconsciousness; that he brought plaintiff esis than that the condition was created in, placed him in a chair, and went back to at a certain time. Much stress is laid on bed; that shortly afterwards plaintiff's wife the fact that the respondent was not called came home, and he heard her scolding while to deny Boetcher's affidavit that he had putting plaintiff to bed; that the next morn- said prior to March 1st that the shoulder ing plaintiff remembered nothing of the oc- was improving, nor any of the statements Counsel again currence, but complained that he had hurt contained in that affidavit. his sore shoulder. Plaintiff's wife positively overlooks the fact that respondent had aldenied that she at any time ever went away ready testified that throughout the whole in the evening leaving Boetcher in the house, period the shoulder had become steadily and denied the above incident in toto. Both worse and that he had suffered no injury plaintiff and his wife testified positively that to it save that of February 3d. Attention he had never received any injury to the is also directed to the fact that respondent shoulder between the time of the assault and was not called to deny Dr. Bowlby's statehis first visit to Dr. Randolph. The recep- ment that he had heard respondent admit in tion of Boetcher's affidavit and Dr. Bowlby's Dr. Riley's office that the arm was improvtestimony, and the elimination of the testi- ing. Here, again, counsel overlooks the fact mony touching defendant's contract with the that respondent had already denied that lumber company referred to in the first opin- he ever saw Dr. Bowlby in Dr. Riley's office ion, and the testimony tending to show that or elsewhere. The evidence was conflicting. the shoulder might have been dislocated by The question of negligence was clearly one the manipulations of Drs. Randolph and Aus- for the jury, even as an original question. tin on March 25th, present the only substan- Moreover, all question as to the sufficiency tial differences in the testimony adduced at of the evidence is foreclosed by the decision the second trial from that adduced at the on the former appeal. The same argument first. The trial resulted in a verdict and based upon substantially the same evidence judgment for the plaintiff for $4,000. De- and the additional evidence tending to show fendant appeals. that Drs. Randolph and Austin had themthen [1-3] It is asserted that there was not only selves dislocated the shoulder was an entire lack of evidence to support a find- made. Substituted for that, we now have ing that there was any dislocation of the the controverted Boetcher testimony. If the shoulder during any of the time while re-evidence was sufficient to take that question spondent was under appellant's treatment, to the jury then, so also is the evidence now but that the evidence affirmatively showed before us. If it had not been considered that there was no dislocation during that sufficient, the case would have been distime. The latter assertion is based solely missed for lack of proof. That decision is See Perrault v. Emupon the testimony of Drs. Riley and Wat- the law of the case. kins and the dentist Bowlby that the above-porium Dept. Store Co., 83 Wash. 578, 145 mentioned infallible tests were applied and demonstrated that there was no dislocation. It overlooks the fact that the testimony on behalf of the respondent tended to negative the claim that the tests were in fact at any Pac. 438. [4] Appellant requested an instruction to the effect that, in determining whether any act or omission on his part in diagnosing and treating the injury was a lack of due moved, the arm was permanently shortened, and had permanently lost perhaps 75 per cent. of its original power and scope of motion. The results were evidently much more serious than those found here. In that case a verdict for $5,500 was held to evidence passion and prejudice and was reduced in the sum of $2,000. We think a reduction in about the same proportion is essential to meet the ends of justice in this case. care and skill, the jury must be governed | shoulder joint was permanently impaired, solely by the testimony of experts skilled the head of the humerus was partially rein the practice and science of medicine and surgery. The request was properly refused. It was an admitted fact in the case about which there was no dispute and on which the expert testimony on both sides coincided that the application of the tests which the appellant claims he made would infallibly have demonstrated the existence or absence of a dislocation. It is also an undisputed fact to which every expert witness, including the appellant, testified, that the failure to apply these tests would be a failure to exercise that reasonable and ordinary care and skill used by physicians and surgeons engaged in the same line of practice in similar localities. The sole controverted question was whether the appellant had applied those tests. This it was admitted could be determined by any evidence as to what the appellant actually did or failed to do in his examination of the arm. That being the sole disputed question, it would have been both unnecessary and confusing to have submitted to the jury the technical question as to what tests should have been made. The court instructed the jury on this subject as follows: "You are instructed that there is no difference of opinion among the expert physicians and surgeons who have testified in this case as to the manner of examination and application of tests in a case of such an injury as the plaintiff claims to have received. The physicians who have testified have all agreed to the nature, extent, and method of such preliminary examination. The defendant claims to have used these tests and to have made such examination; and whether he did or did not do so is the question of fact to be determined by you from the testimony in the cause and under the same rules as the other testimony is to be considered and as herein set out for your guidance." Appellant urges that the giving of this instruction was grave error. But what we have already said touching the requested instruction makes it plain that the trial court took the proper view of the matter and submitted to the jury the one question about which there was any dispute. We find no error in this instruction. If therefore the respondent will within 30 days after the transmission of the remittitur from this court consent in writing to remit $1,600 from the judgment, it will stand affirmed in the remaining sum of $2,400 and costs, and bear interest from the date of its original entry. Otherwise a new trial will be awarded. Costs in this court to appellant. MORRIS, C. J., and MOUNT, FULLERTON, and CHADWICK, JJ., concur. BEASTON et al. v. PORTLAND TRUST & 1. WITNESSES 142 TRANSACTION WITH PERSON SINCE DECEASED-CORPORATE OFFICERS. Rem. & Bal. Code. § 1211, providing that, in an action or proceeding where the adverse party sues or defends as deriving right or title by, through, or from any deceased person, a party in interest shall not be permitted to testify in his own behalf as to any transaction had by him with the deceased, does not exclude the testimony of an officer and stockholder of one corporation from testifying as to a transaction had by him, as such officer, with an officer and stockholder, since deceased, of another corporation, from which the witness' corporation derives a right or title which it seeks to assert. [Ed. Note.-For other cases, see Witnesses, Cent. Dig. §§ 580, 581; Dec. Dig. 142.] 2. WITNESSES 128-TRANSACTION WITH PERSON SINCE DECEASED-DEPOSITION TAKEN BEFORE DEATH. [5] Finally, it is urged that the verdict is excessive. In this view we concur. The evidence indicates that the shoulder has entirely recovered and is now giving the respondent no pain. While it is true that some of the effects of the operation are permanent in their nature, the evidence shows that the respondent's earning capacity is not material-128.] ly diminished. It is true that he cannot perform those tasks which necessitate lifting above the level of his shoulder, and it is true, also, that he has suffered much pain, inconvenience, and considerable expense. The joint, however, so far as the evidence shows, is otherwise unimpaired. In Taylor v. Kidd, 72 Wash. 18, 129 Pac. 406, a case similar to this in many respects, the Such statute does not render inadmissible a deposition of the surviving party to a transaction taken before the death of the other party, though it is offered in evidence after such death. [Ed. Note.-For other cases, see Witnesses, Cent. Dig. 88 553-555, 562-564, 570; Dec. Dig. 3. GARNISHMENT COURT. The proceeds of a cashier's check deposited by a bank with a sheriff and receiver to secure the discharge of loggers' liens in a foreclosure suit was not subject to garnishment at the suit of other creditors of the defendant in the foreclosure action though the check was indorsed by the sheriff to the clerk of the court and was by him cashed, and though defendant prevailed as against the loggers' liens, where the check 59-SPECIAL DEPOSIT IN For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes was not a loan by the bank to defendant, but was a special deposit to be returned to the bank in the event that it was not used for the purpose intended, and it was immaterial that a note for the amount of the check was given by defendant to the bank to evidence the transaction. [Ed. Note. For other cases, see Garnishment, Cent. Dig. § 114; Dec. Dig. 59.] Department 2. Appeal from Superior Court, Clarke County; O. R. Holcomb, Judge. Action by James Beaston and another against the Payette Timber & Milling Company, Limited, a corporation, in which W. S. T. Derr, as Clerk of the Superior Court, was garnished, and the Portland Trust & Savings Bank intervened. Judgment against the intervener and for the garnishee, and the intervener appeals. Reversed and remanded, with instructions. all moneys in his possession belonging to the milling company. On September 16, 1912, after the final termination of the lien case and the time limited to appeal therefrom had expired, the judgment creditors caused an execution to issue on the judgment and a second writ of garnishment to be issued and served upon the clerk. In the meantime the bank named had served a notice upon the clerk to the effect that the money deposited with him in the lien foreclosure proceedings was the money of the bank, and that the bank would look to him for the return of the money, if not applied to the purposes for which it was deposited. The clerk made answer to the garnishment proceedings, setting up the adverse claim made to the money by the bank. The bank also contained leave of court and filed a complaint of intervention in the proceedings in which it set up its claim to the money. An answer was filed to the complaint, and on the issues thus framed the rights of the parties to the money were tried. Judgment was entered against the bank and in favor of the garnishees, and from this judgment, the present appeal is prosecuted. [1] As a preliminary question it is necessary to notice an objection made by the respondents to the admissibility of certain evidence offered by the appellant. In the negotiations leading up to the deposit of the money with the clerk of the court the bank was represented by one Olmstead, its then vice president and manager, and the milling conpany by one Brainard, its president; each of these persons being at the time a stockholder in the corporation which he represented. Prior to the trial of the garnishment proceed FULLERTON, J. In the early part of the year 1912 an action was brought by T. C. Stearns and others as plaintiff against the Payette Timber & Milling Company to foreclose loggers' liens filed by the plaintiffs upon certain logs and timber products owned by the milling company. At the commencement of the action the court appointed the sheriff of the county. wherein the liens were filed as receiver of the property, and possession of the property was duly taken by the sheriff pursuant to such appointment. After the seizure of the property by the sheriff the milling company sought to secure its release prior to the determination of the question whether the liens of the plaintiffs were valid and sub-ings the deposition of Olmstead was taken for sisting liens thereon, a question on which it had taken issue in the foreclosure action. Pursuant to that purpose, it procured the Portland Trust & Savings Bank to issue its cashier's check payable to the sheriff holding the property in an amount equal to the claims sued upon, together with $100 additional to cover costs and interests. The statute (section 1173, Rem. & Bal. Code) required that the deposit to secure the release of the prop erty be made with the clerk of the court, and the sheriff, after indorsing the check, caused it to be so deposited, whereupon the property was released to the milling company. The clerk, however, did not hold the check, but caused it to be cashed, and held the money in its stead. Later on, the issue between the lien claimants and the milling company was tried out, and resulted in a judgment in favor of the milling company, which was duly entered on June 17, 1912. use at that trial as to the understanding had between Brainard and himself concerning the deposit of the money. Between the date of the taking of the deposition and the date of the trial, Brainard died, and when the deposition was offered in evidence it was objected to on the ground that the witness was incompetent to testify because of the statute relating to the competency of witnesses when the adverse party sues or defends as the representative of or as deriving right or title from or through a deceased person. The trial court admitted the deposition, the respondents claim, erroneously, and they urge in this court that it must be rejected here, since this court tries the action de novo, and must try it upon the competent evidence in the record only. The statute relied upon to exclude the evidence is found at section 1211 of the Code (Rem. & Bal.). The portion there of material to the question reads as follows: On January 24, 1912, the respondents in the present action recovered a judgment "No person offered as a witness shall be exIcluded from giving evidence by reason of his interagainst the milling company for $1,625. Sub-est in the event of the action, as a party thereto sequent to the deposit of the money with the or otherwise: but such interest may be shown to clerk in the first action mentioned, but prior affect his credibility: Provided, however, that in to the termination of that action, the respond- an action or proceeding where the adverse party sues or defends as executor, administrator, or leents caused a writ of garnishment to be is- gal representative of any deceased person, or as deceased person, or as the guardian or conservator of the estate of any insane person, or of any minor under the age of fourteen years, then a party in interest or to the record shall not be admitted to testify in his own behalf as to any transaction had by him with or any statement made to him by any such deceased or insane person, or by any such minor under the age of fourteen years.' and the representative of such deceased person." The other case is Thorne v. Joy, 15 Wash. 83, 45 Pac. 642. In this case the witness excluded stood in the relation of a mortgagee to the property in dispute, which would be affected by the result of the action. Plainly the case is not in point on the ques tion here involved. [2] We think, further, that the deposition was admissible under the rule of the case of Neis v. Farquharson, 9 Wash, 508, 37 Pac. dence. Such were the facts in the case be- The respondents do not, of course, claim that they are suing or defending as executor or administrator, or as the legal representative of any deceased person, but claim, as we understand them, that they defend as deriving right through and from a corporation in which Brainard had an interest; the argument being that, since Brainard was at the time of making the contract, a stockholder in and president of the milling company, he had a personal interest in the property of that company, and, since the claim of the appellant bank to the money in the hands of the clerk affects that property, it affects such interest as Brainard had in the corporation, and to permit Olmstead to testify is to permit a party in interest to testify on his own behalf to a transaction had by him with a deceased person where the adverse party claims by or through such person. But we are constrained to the belief that the contention is not well founded. There are cases which maintain the rule that a stockholder [3] Treating the deposition of Olmstead as has such an interest in a corporation as to properly in the record, we think the trial disqualify him from testifying in behalf of court reached an erroneous conclusion on the the corporation in an action against the rep- facts. Olmstead's testimony makes it clear resentatives of a deceased person, and cases that the bank did not intend to make a loan also which maintain the converse of the rule, of the money to the milling company, or othnamely, that if the parties be living, one of erwise vest it with title or ownership therethem will not be permitted to testify to trans-in. While the witness realized that the monactions with the other if the agent of that ey would be applied to the satisfaction of other, who conducted the transactions, be dead. This latter rule may support the contention of the respondents, but we think the cases upon which it is founded, for the greater part at least, rest upon statutes which can be differentiated from our own, and that is contrary to the general trend of the cases even upon like statutes. Our statute, it will be observed, applies, in its terms, only in the case of the death of a natural person who is a principal in the contract. It makes no reference to corporations, or to agents of corporations, or even to agents of deceased natural persons, and to read into it this further exception would be, we believe, an unwarranted extention of its terms. The cases cited from other jurisdictions we shall not review. As we say they are conflicting. Of the two cases cited from this court the first is Gilmore v. H. W. Baker Co., 12 Wash. 468, 41 Pac. 124. But a careful reading of the case will show that the exclusion of the evidence there offered was rested upon different principles from that contended for here; the court expressly saying, that it did "not feel called upon to pass on the question of whether an officer of a corporation can be permitted to testify to a transaction with a deceased person, in a suit between such corporation the claims of the plaintiffs in the lien foreclosure action should they succeed in establishing their liens, he was led to infer from the statements of Brainard that there were well-grounded reasons for believing that they would not be so successful, and that the money would be returned to the bank within a short time. He also testified that it was understood between himself and Brainard that the check would not be cashed unless necessary for the payment of a judgment obtained by the lien claimants, but would, if not cashed for that purpose, be returned to the bank in its original form. His statements, it seems to us, are supported by the fact that the check was not made payable to Brainard, nor the milling company, nor to any one for the milling company, but to the officer who had seized the property. It is true a note was taken from the milling company for the amount of the check, but this, the witness explains, was a convenient method of keeping an account of the transaction, and to represent the obligation in case the proceeds of the check were applied on the liability it was given to indemnify. But, without pursuing the inquiry further, we think it clear that the money was deposited for a special purpose, without intent on the part of the de positor to part with title unless necessary (though the verdict did not conform to the evito be used for that special purpose. Were dence. the contract, therefore, between the milling [Ed. Note. For other cases, see Eminent Domain, Cent. Dig. §§ 568-573; Dec. Dig. company and the bank, the milling company 223.] could not retain the money. The judgment debtors of the milling company by garnishing the money acquired no greater rights in the money than the milling company itself possessed, and, since the latter had no rights, the garnisheeing creditors acquired none. Bellingham Bay Boom Co. v. Brisbois, 14 Wash. 173, 44 Pac. 153, 46 Pac. 238; Merwin v. Fowler, 20 Wash. 587, 56 Pac. 374; McAlmond v. Bevington, 23 Wash. 315, 63 Pac. 251, 53 L. R. A. 597. The judgment is reversed, and the cause remanded, with instructions to enter a judgment for the appellant intervener. MORRIS, C. J., and ELLIS and CHADWICK, JJ., concur. In re WEST WAITE ST., SEATTLE. (No. 12610.) (Supreme Court of Washington. Feb. 21, 1916.) 1. APPEAL AND ERROR 2-STATUTES-RE TROACTIVE OPERATION-ABSTRACTS. Laws 1915, p. 300, providing that where no testimony is sent up with the record, or where the statement of facts does not exceed 100 pages of double space typewritten evidence, no abstract of record shall be required, will be given effect as to appeals perfected before it took effect in which no abstract, or a defective abstract, has been filed, since while the Legislature may not pass retroactive laws prescribing penalties for acts and omissions lawful when committed or omitted, it may excuse delinquencies in matters of practice in pending proceedings past as well as future. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3-7, 1882, 2421; Dec. Dig. ~2.1 2. APPEAL AND ERROR 544-RECORD-NECESSITY OF BILL OF EXCEPTIONS AND STATEMENT OF FACTS. On appeal from an order modifying a verdict and judgment, where appellant contended that the order was void on its face because it was beyond the power of the court to make, no bill of exceptions or statement of facts was nec essary, as the invalidity of the order would appear if at all from a transcript of the record." [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2412-2415, 2417-2420, 2422-2426, 2428, 2478, 2479; Dec. Dig. 544.] 3. EMINENT DOMAIN 223 RECOVERY OF COMPENSATION-VERDICT-CORRECTION. Where, in a proceeding to assess the compensation for land taken for a street, the jury returned a verdict which provided that the sum awarded included the cost of readjusting or moving a building on the land taken, the court had no power after the discharge of the jury and on motion of the city to correct the verdict and the judgment thereon to provide that the award should include the cost of taking buildings, trees, and shrubbery on the land, thereby taking the building from the landowners and vesting title in the city, though the form of the verdict was due to a mistake in furnishing the jury the wrong printed form of verdict, and En Banc. Appeal from Superior Court, King County; Boyd J. Tallman, Judge. Proceeding by the City of Seattle to have compensation awarded for property taken for West Waite Street in the City of Seattle. From an order modifying the verdict and judgment, B. May White and another appeal. Reversed and remanded, with instructions. Chas. M. Baxter, of Seattle, for appellants. James E. Bradford and Melvin S. Good, both of Seattle, and W. D. Covington, of Nashville, Tenn., for respondent. FULLERTON, J. In March, 1912, the city of Seattle, by ordinance duly enacted, provided for the establishment of a public street and highway in that city called in the record West Waite street. The establishment of the street necessitated the taking and damaging of a large number of tracts of proptracts were lot 1 and a portion of lot 2, all erty held in private ownership, among which in block 1, of Madrona addition to West Seattle, owned by the appellants in this action. The ordinance authorized and directed the corporation counsel of the city to commence and prosecute such actions and proceedings as were necessary to acquire the property, and to ascertain the compensation to be paid the owners of the property taken and damaged in such acquisition. Pursuant to the authority thus conferred, the corporation counsel began the present action for the purpose directed, and in the course of the proceeding took a judgment of condemnation of the property of the appellants described in the ordinance, and had the compensation to be awarded them therefor fixed by a jury. The jury's verdict was as follows: "We, the jury in the above-entitled proceeding, duly impaneled and sworn, find that the just compensation to be paid to the owners, occupants and persons otherwise interested thereproperty, to wit: That portion of lots one and in for the taking of the following described real tion to West Seattle, now a portion of the city two (1 and 2), block one (1), Madrona addiof Seattle, described as follows: Beginning at a point on the east line of said lot two (2), said point being distant twenty-eight and eighty-two one-hundredths (28.82) feet north from the southeast corner of said lot; thence north along the east line of said lots two and one (2 and 1) a distance of thirty-one and eighteen one-hundredths (31.18) feet to the northeast corner of said lot one (1); thence west along the north line of said lot one (1) a distance of eighty (80) feet to the northwest corner thereof; thence south along the west line of said lots one and two (1 and 2) a distance of thirty and sixty-six one-hundredths (30.66) feet; thence easterly along a straight line a distance of eighty (80) feet to the point of beginning; north ten (10) feet of lot three (3), block one (1) in Madrona addition to West Seattle which the defendants King County, B. May White, and A. L. White, |