ENGSTRAND et ux. v. HARTNETT et ux. Affirmed. (No. 15142.)

Van Dyke & Thomas and Edward Judd, all

(Supreme Court of Washington. April 7, 1919.) of Seattle, for appellants.

The operator of an elevator is a "common carrier" of passengers, and is held to the de-pose of recovering for personal injuries to

in the case, they are covered by the instructions given.

[5] The second question to be considered is that which relates to the instructions given, and is directed to an instruction wherein the jury were told that if "the defendants used the highest degree of care in the employment of professional experts or experts in the inspection of said elevator, and that the same was inspected by said experts as frequently as was reasonably necessary, the defendants fulfilled their duty in that regard." The appellants construe this instruc

charge the jury that if the accident was one which in the ordinary course of business would not have happened if the required degree of care had been used, a presumption would arise that such care was wanting. It may be admitted that this instruction is a correct statement of the law as applied to the facts in this case, and, if the same subject-matter was not covered in the instructions given, its refusal would be reversible error. In the instructions given the jury were told that where an elevator was maintained for use and is operated as a carrier of passengers in a building used for apart-tion as exempting the respondents from liament house purposes, and where it is proven bility for any negligence that the inspectors by the evidence that, while being so operated may have been guilty of in the manner of and used, its cable breaks or separates so as making the inspections. The respondents to cause the cage or car to fall, "the law construe it as only applying to the selection presumes that such breaking and falling of of professional experts and the frequency the elevator resulted from some defect of with which such inspections were made. the cable or other appliances or means used Relative to the matter of inspection, the reby the defendants in the operation of the spondents might have failed in their duty in elevator, and in such a case it devolves up- one of three ways: First, if they failed to on the defendants to show that such break-employ competent experts; second, if the ing and falling of the elevator did not re-experts employed did not inspect the elevator sult from any cause which the highest de- as frequently as was reasonably necessary; gree of care on their part could have prevented." The instruction given, as we view it, covers the matter contained in requested instruction No. 4. The same rule is embodied in each of the instructions.

[3] By requested instruction No. 5 the court was asked to charge the jury that one who maintains and operates an elevator in an apartment house is held to the "highest degree of care compatible with their practical maintenance and use and operation for such purposes." In the instructions given the jury were told that one who maintains and operates an elevator must exercise the "highest degree of care to avoid the accident which was reasonably practicable | under the circumstances and conditions existing at the time and place of said accident." This instruction is followed with another which defines what is meant by the highest degree of care as used in the preceding instruction. The rule of the requested instruction was substantially covered in the instructions given.

[4] Without assembling the cases, it may be said that it has been many times held that it is not error to refuse to give requested instructions which correctly state the law and are applicable to the facts in the particular case, when the subject-matter of the requested instructions is covered in the instructions given. In other words, even though the requested instructions were proper to be given, it is sufficient if the same subject-matter is covered in the charge, even though in briefer form and in different phraseology.

As to the other requested instructions, without reviewing them here in detail, we are of the opinion that, so far as they correctly state the law applicable to the facts

and, third, for negligence or failure of the inspectors to perform the inspections in a proper manner and with the exercise of sufficient care. As we read the instruction it covers only the first two, that relating to the employment of expert inspectors and the frequency with which the inspection was made, and does not cover failure or negligence in the manner or mode of making the inspections. The instruction which immediately follows this told the jury that the proprietor of an apartment house, having the right of selection of servants and employés "including elevator operator, elevator inspector, and elevator caretaker," would be liable for any injury which was due to the lack of care of such servants or employés.

By this last instruction the jury were informed that the respondents would be liable if the injury complained of was due to the lack of care on the part of the inspectors in the manner or mode of making the inspection. Reading the two instructions together, the one complained of was not misleading.

[6] The third point which will be considered is that which challenges the sufficiency of the evidence to support the verdict. The appellants' case was made by proof of the accident and its attendant circumstances and the presumption of negligence which arose therefrom. The respondents offered evidence which tended to show that the elevator had been properly installed; that it was in good repair; that it had been properly inspected; and that no defect had been discovered therein. This evidence the appellants claim was not sufficient to overcome their presumptive case. The line of evidence offered was that which was recognized in Anderson v. McCarthy Dry Goods Co., 49 Wash. 398, 95 Pac. 325, 16 L. R. A. (N. S.) 931, 126 Am.

St. Rep. 870, as proper to meet a case of liability which rests upon proof of accident with its attendant circumstances and the presumption arising therefrom.

The court cannot say, as a matter of law, that the evidence was not sufficient to overcome the presumption. The question was one for the jury.

The judgment will be affirmed.

CHADWICK, C. J., and MACKINTOSH, TOLMAN, and MITCHELL, JJ., concur.

AUSTIN v. METROPOLITAN LIFE INS. CO.
OF NEW YORK et al. (No. 15109.)

(Supreme Court of Washington. April 4, 1919.)

ASSAULT AND BATTERY 7 EJECTMENT the left arm and conducted her to the door, FROM OFFICE-DAMAGES.

Where plaintiff, after accusing defendant of "thieving" from her, was directed to leave defendant's office, and upon refusal to leave was taken by the arm and conducted to the door, she was not entitled to recover for "any injuries" sustained, but only such as may have been due to the use of excessive force, if any, in removing her from office.

Department 1.

and she passed out. This is the assault for which damages were sought.

In submitting the case to the jury it was stated in the instructions that if Laurendine did at the time and place in question make an assault upon the respondent substantially as she claims, then both defendants are liable in damages for "any injuries" which respondent may have sustained. Error is predicated upon the giving of this instruction, it being claimed that it states to the jury an incorrect

Appeal from Superior Court, Spokane measure of damages. The objection to the County; D. W. Hurn, Judge.

instruction is well founded. Under the plaintur's own evidence Laurendine was justified in directing her to leave the office, and when she failed to do so had a right to use such force as was reasonably necessary to eject her therefrom. Under this state of facts, the respondent, if she was entitled to recover at Cannon & Ferris, of Spokane, for appel- all, could recover, not for "any injuries" that

Action by Lula Austin against the Metropolitan Life Insurance Company of New York and another. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

lants.

MAIN, J. The purpose of this action was to recover damages for an alleged assault and battery. The cause was tried to a jury, and resulted in a verdict for $1,000. Upon motion for a new trial an order was entered, requiring the plaintiff to remit from the verdict the sum of $500, otherwise a new trial would be granted. The plaintiff elected to accept a judgment for the reduced amount. Judgment was entered for the sum of $500, and the defendants appeal.

she may have sustained, but only such injuries as may have been due to the use of excessive force, if there were such, in removing her from the office. Guterson v. Jensen, 100 Wash. 113, 170 Pac. 352.

It is also claimed that the verdict, even as reduced, was grossly excessive. It is unnecessary to pass upon this objection, since a new trial must be directed on account of the error in the instructions. It may be said, however, that it is doubtful whether the evidence in the record would sustain a verdict and judgment in the sum of $500.

The appellant Metropolitan Life Insurance Company of New York is a corporation with on office in the city of Spokane. The appellant F. A. Laurendine was the superintendent in charge of this office. On or about Febru- | TOLMAN, and MITCHELL, JJ., concur.

The judgment will be reversed, and the cause remanded for a new trial.

CHADWICK, C. J., and MACKINTOSH,

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

to them a full, fair, and candid statement of all facts within their knowledge tending to show the guilt of Nels Bruce of the crime

with which he was afterwards accused, and that thereafter respondent Elmergreen and one of the attorneys for respondent company took up the matter with one of the deputy prosecuting attorneys of the county, to whom they made a full, fair, and candid statement of all facts within their knowledge

BRUCE v. ELMERGREEN et al. (No. 15080.) (Supreme Court of Washington. April 3, 1919.) MALICIOUS PROSECUTION 71(2)—PROBABLE CAUSE ADVICE OF PROSECUTING ATTORNEY. In action for malicious prosecution, where it appears from the undisputed evidence that the prosecutors acted upon the advice of the prosecuting attorney after making a full and truthful statement of all known facts relating to probable cause for the prosecution, it be-bearing upon the question of the guilt of Nels Bruce of the crime with which he was comes duty of court to find probable cause as a matter of law, and to direct a verdict for de- afterwards charged, and the attorneys for fendant. respondents, and also the deputy prosecuting attorney of the county, advised that in their opinions there was sufficient evidence to warrant the filing of a criminal complaint and to justify a conviction of Nels Bruce, upon which advice, and by the direction of the deputy prosecuting attorney, the criminal complaint was made by Elmergreen. In this state the rule is:

Department 1.

Appeal from Superior Court, Snohomish County; Guy C. Alston, Judge.

Action by Nels Bruce against O. G. Elmergreen and another. Verdict for plaintiff, and from.judgment of dismissal granted upon motion for judgment non obstante, plaintiff appeals. Affirmed.

W. H. Mason and J. Y. Kennedy, both of Everett, for appellant.

J. A. Coleman, of Everett, for respondents.

"In an action for malicious prosecution, where it appears from the undisputed evidence that the prosecutors acted upon the advice of the prosecuting attorney after making a full and truthful statement of all known facts relating to probable cause for the prosecution, it because as a matter of law, and to direct a vercomes the duty of the court to find probable Syllabus, Simmons v. Gardner, 46 Wash. 282, 89 Pac. 887, L. R. A. 1915D, 16.

MITCHELL, J. Respondent O. G. Elmergreen, while in the employment of respond-dict for the defendant." ent Puget Sound International Railway & Power Company, a corporation, swore to a criminal complaint in a justice of the peace court of Everett, charging appellant, Nels Bruce, with the crime of engaging in and

carrying on in Everett, Wash., the business of transporting passengers for hire in an automobile without having a permit therefor as required by the laws of the state. The justice of the peace issued a warrant for the arrest of the defendant in that case, upon the service of which the defendant furnished cash to assure his appearance at the trial. When the case came on for hearing, after one continuance, it was dismissed upon motion of the prosecuting attorney's office on the ground of insufficiency of evidence to go to trial in the opinion of the prosecuting attorney. Thereafter the present action for damages for malicious prosecution was brought by Nels Bruce against said Elmergreen and the Puget Sound International Railway & Power Company. A jury trial resulted in a verdict of $800 for the plaintiff, over the motion of the defendants for a directed verdict in their favor. A timely motion of defendants for judgment non obstante was subsequently granted by the court, and a judgment of dismissal of the action entered. The plaintiff has appealed.

At the trial the proof showed, without question or dispute, that respondents, be fore the criminal complaint was filed, took up the matter with their attorneys and made

This rule was repeated in the case of Main v. Healy, 100 Wash. 253, 170 Pac. 570, and

still later followed in the case of Borg v.

Bringhurst, 178 Pac. 450.
Judgment affirmed.

CHADWICK, C. J., and MACKINTOSH, MAIN, and TOLMAN, JJ., concur.

WEIDERT v. WEIDERT. (No. 15207.)

(Supreme Court of Washington. April 7, 1919.) 1. DIVORCE 184(5)-DISCRETION OF LOWER COURT.

Where a husband and wife both sue for divorce, to which spouse a decree is given is of no concern to the public, and, where both were largely at fault, it will not be held on appeal that court abused its discretion in granting the

divorce to one or the other.

2. DIVORCE 240(5)—ALIMONY.

Where parties having previous matrimonial experience were married, the wife having brought nothing to the marriage state, either parties being impassive, alimony in the sum of health, property, heart, or true emotion, both $6,000 and $250 attorney's fees will be reduced on appeal to $5,000 and $250 attorney's fees; the husband's estate being $25,000.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Department 2.

dissolution we feel that the court should meet

Appeal from Superior Court, Walla Walla the situation in the impassiveness that movCounty; Edward C. Mills, Judge.

Action by Lizzie Weidert against John Weidert. Decree for plaintiff, and defendant appeals. Modified.

ed the parties when they entered into the

married state in which they have walked during the eleven years of their disastrous venture. Were the question entirely original, we would not be so liberally inclined as was J. W. Brooks, of Walla Walla, for appel- the trial judge, or as we have decided to be, lant. having due regard and esteem for his opinT. M. McKinney and Sharpstein, Smith & ion. With this feeling then we have concludSharpstein, all of Walla Walla, for respond-ed that plaintiff should have no more than $5,000 including the $250 allowed for attorney's fees.

ent.

ed for a decree.

CHADWICK, C. J. Plaintiff brought acIn the notice of appeal reference is made tion for divorce. Defendant pleaded the to an order allowing plaintiff $250 attorney's general issue and set up an affirmative cause fees on appeal and $75 per month alimony of action by way of cross-complaint and pray-pending the appeal. We do not find such an order in the transcript. Our decision will nullify the order if it was made, but defendant will pay plaintiff's counsel $250 as attorney's fees on appeal and the balance of the $5,000 into the registry of the court for the use of plaintiff.

Both plaintiff and defendant so well sustained their respective pleas that the court may well have granted a divorce to either or denied the prayer of both. The court found:

"That plaintiff has not been without blame, but is less blameworthy than the defendant, and that plaintiff is entitled to a divorce against the

defendant."

[1] At this distance we cannot say that the court abused its discretion. To which spouse a decree is given is of no concern to us or to the public. We therefore pass the charge that the court erred in refusing to grant the divorce to the defendant, and come to the only question in the case.

We find nothing to commend in either party, and have no sympathy for the one over the other. We believe this award to be just as well as generous. Respondent will recover costs on appeal.

Modified.

FULLERTON, PARKER, MOUNT, and HOLCOMB, JJ., concur.

BOKELKAMP v. BOKELKAMP. (No. 15169.)

(Supreme Court of Washington. April 7, 1919.) DIVORCE 312-APPEAL-CREDIBILITY OF

WITNESSES.

Where, in proceeding praying that custody of minor, awarded to wife in divorce suit, be taken from her and awarded to husband, the evidence is all oral and the decision to be rendered thereon is nothing more than measuring the credibility of witnesses, order denying relief will be affirmed on appeal.

[2] The court found upon the admission of the defendant that he was worth $25,000 and ordered the defendant to pay forthwith into the registry of the court for the use of plaintiff $6,000 and $250 attorney's fees and costs. When the parties were married in 1906, each had had previous matrimonial experience. Plaintiff had certainly about $900, and possibly $1,500. Whatever the amount may have been, she retained it as her own. Defendant had the property that he now has, and which is now his separate property. Defendant is worth more than when married, but his added worth comes from the increased value of his lands. The parties traveled much in search of health, and a considerable sum was spent for the benefit of plaintiff— defendant says about $6,000, but without a Petition by William F. Bokelkamp, praying showing of all the items. It is certain, how-that custody of a minor, awarded to plaintiff ever, that a substantial aggregate sum was wife, Dorothy M. Bokelkamp, in divorce suit dispensed; for two operations were perform- be taken from her and awarded to petitioner, ed, one of which was to relieve a condition Relief denied, and petitioner appeals. Afwhich in the opinion of the surgeons resulted from a vicious infection of some years' standing.

Department 2.

Appeal from Superior Court, King County; John S. Jurey, Judge.

firmed.

W. H. Bolen, of Seattle, for appellant. Oliver C. McGilora, of Seattle, for respondent.

Plaintiff brought nothing to the marriage state-neither health nor property. There is nothing in the habit, conduct, or the lives of the parties to call for an admeasure- PARKER, J. The parties to the above-enment of equities. There never was a heart titled action were divorced, by decree renderor a true emotion in the union, and in its | ed therein by the superior court for King