assigned to the following effect: First, that The lighting company introduced at the hearing all of the testimony, exhibits, and the opinion and findings of fact received and made by the commission at previous hearings, which had never been reviewed and which stood unchallenged and uncontested, and showed an investment by the lighting company at the time of such previous hearings of $9,285,642; and in the absence of fraud, no reason appears why that finding should not stand, except as added to or modified by subsequent changes in conditions. Many detailed reports of experts made from the lighting company's books and Every wit iff No. 3 over tariff No. 2. was [1, 2] As to the first point, the statute (Rem. Code, § 8626-80) is framed for the protection of the one against whom the complaint is filed, and no objection has at any time been raised by the lighting company. The city was not required to litigate the issue raised by its complaint until after the expiration of 10 days, and in the meantime was permitted to attend and participate through its legal department. Then and afterwards it had the fullest opportunity to protect its rights and present its case. Should we concede that the hearing of October 15th was irregular, still the city was not prejudiced thereby. The commission was proceeding upon its own motion for the hearing upon the proposed tariff No. 2, filed by the lighting company, as it had power to do under section 8626-82, and other subdivisions of that section, and we cannot hold that by the filing of a complaint within 10 days prior to that hearing the city could deprive the commission of power to proceed with the hearing already ordered. Α very different question would be presented had the commission proceeded to make its final order on October 15th, while the city's complaint was still pending and undetermined. The most that the city was entitled to was what it received, namely, the protection of all of its rights, and the opportunity to present its case after 10 days' notice. [3] Appellant's second point is based upon that portion of section 8626-82, Rem. Code, which provides: "At any hearing involving any change in any schedule, classification, rule, or regulation, the effect of which is to increase any rate, fare, charge, rental or toll theretofore charged, the burden of proof to show that the changed schedule, classification, rule, or regulation, or the increased or proposed increased rate, fare, charge, rental or toll, is just and reasonable ness examined with reference thereto testified to additions made to the lighting company's properties since the previous hearings, and we think that, having due regard to the burden of proof placed on the lighting company by the statute quoted, the commission was fully justified in finding that the lighting company's investment had increased, and that it was entitled to earn a return based upon $10,194,259.74 invested. mission's expert, who had entered the miliAnd this too if the testimony of the comtary service of the United States before the city had an opportunity to cross-examine him, be wholly disregarded. The commission, in the making and approval of rates, must be guided by the statute. Rem. Code, § 8626-26. "All charges made, demanded or received by any gas company, electrical company or water company for gas, electricity or water, or for any service rendered or to be rendered in connection therewith, shall be just, fair, reasonable and sufficient." We said in State ex rel. N. P. R. Co. v. Public Service Commission, 95 Wash. 376, 163 Pac. 1143: We think the commission as an administrative and regulative body has peculiar powers. ** ** It is not bound, as is a court, to acquire its information concerning all matters involved in the proceeding before it wholly and entirely from the evidence of witnesses or other evidence produced before it, but may take into consideration the results of its general investigations, general information upon ters which affect the matter and concerning a given subject within its powers, and all matwhich it must determine the facts." Following this rule, the burden of proof which is on the lighting company is met, not alone by the evidence actually introduced at the hearing, which we think in this case was sufficient (and it is immaterial whether that evidence was introduced by it or came from the commission's experts or others who examined into its affairs), but also by the general knowledge on the subject pos sessed by the commission, as a result of previous experience and investigation. [4] The basis for rate fixing is define (180 P.) presumably was followed in the earlier hear-date the latter was made effective making purposes, found: "There is an ever-changing relationship between the cost of service and the rates of service. Not every slight change in this relationship calls for a readjustment in the rates. There, however, can be no question in the minds of our fair citizenship but what the abnormal times which now confront us have so disturbed all past relationships that there must be radical readjustments and these, in the great majority of cases, mean an increase in rates, which, upon the surface, would indicate that the many are being taxed for the benefit of the few. In other words, that the primary purpose is to fill the coffers of the corporations. An analysis, however, in practically all cases of increase will show that scarcely anything remains in the treasury of the corporation; that the money merely reaches that place to immediately go out in payment of increased cost of material and labor. "We have in this case allowed the Seattle Lighting Company an increase in rates under which it may be able to earn a sum equal to increased cost of material and labor. We have not intended by this order to make it possible for this utility to return to its stockholders or bondholders one cent additional to what they received prior to war times." All must realize that a public utility must have sufficient rates or it cannot continue to exist. And the commission's finding that the rates as fixed by it were just, fair, reasonable, and sufficient must, from the record before us, be upheld. lected shall be credited or paid r sumer. The judgment appealed from s CRAMER v. CRAMERA 1. HUSBAND AND W In a divorced ** 2. APPEAL AN LENGE TO S ER OF PAR Defend ciency of p defendants 3. APPEAL com While some of the rates provided by tar-evidas. A reading of the it is not intended to and doe .ed an in n of good clear legal gment is re and MAIN, of the opinion of an alienation band of the reher own testithis were a diinding of willful case should have ed, but, being overI concur in the re RSON. (No. 14980.) ashington. May 1, 1919.) 867(2)-QUESTIONS PEAL FROM GRANT OF NEW ROR om order granting new trial was insufficient to justify the reme Court will not review the or the trial court erred in withhe consideration of the jury the endant's contract with a county inage ditch and dam (which ditch nd destroyed plaintiff's crops) had pleted within the time limited, and at defendant's agent had misrepretime of completion. AL AND ERROR 867(2)-RIGHT TO wife. From Judgment for plaintiff, defend- there is a presumption in favor of good ants appeal. Reversed. J. S. McDonald, of Cheney, and C. T. McDonald and Del Cary Smith, both of Spokane, for appellants. Crandell, Williams, & Crandell, of Spokane, for respondent. MITCHELL, J. Respondent has been divorced at the suit of her former husband, Miles Cramer, on the ground of abandonment, since the present action was commenced by her to recover damages from appellants for alienating the affections of her husband. Appellants are husband and wife and parents of Miles Cramer. The cause was tried by the court and a jury, resulting in a verdict and judgment in favor of respondent, from which this appeal is prosecuted. faith carrying its companion of a burden imposed upon him who assails it, and there is, it is important the jury should be so instructed. The appellants had a right to a direct and positive instruction upon this matter. The reason of the rule of good faith spoken of exacts the presumption which exists. In the case of Stanley v. Stanley, 27 Wash. 570, 68 Pac. 187, this court said: "There is a wide distinction between an action by husband or wife against the parent of either and one against some stranger who invades the domestic circle and separates husband and wife." The court quotes with approval from Tucker v. Tucker, 74 Miss. 93, 19 South. 955, 32 L. R. A. 623, as follows: "In every suit of this character, the prine inact? Was it malicious, or was it inspired by a proper parental regard for the welfare and A number of errors are assigned that are quiry is: From what motive did the father grouped into five points, as follows: happiness of his child? The instinct and the the duty of watching over, caring for, and conscience unite to impose upon every parent period of life, before marriage and after marriage, whenever the necessities of the child's situation require or justify such action on the parent's part. The reciprocal obligations of parent and child last through life, and the duty of discharging these divinely implanted obligations is not, and cannot be, destroyed by the child's marriage. * The question alor was he moved by proper parental motives ways must be: Was the father moved by malice, for the welfare and happiness of his child?" 1 Cooley on Torts (3d Ed.) p. 468, says: "A clear case of want of justification may be justly required to be shown before they should be held responsible." [1] (1) The refusal of the court to give a requested instruction. In writing appellants requested an instruction to the effect that parents have the right in a moderate, in-counseling and advising the child at every telligent, and careful manner to advise a son as to his domestic affairs, even as to his living with his wife, and that, if given in good faith and from worthy motives, the wife may not complain even though the advice contribute in some degree to the result of causing a separation. Continuing, the requested instruction called attention to the distinction between the case of a stranger to the blood and that of parents to the effect that in the latter conduct and advice are presumed to be good, and a clear case of want of justification must be shown before parents can be held responsible. The court gave the first part of the requested instruction, but refused the latter portion. Appellants at that time took an exception in writing to the refusal to give the requested instruction, and this court held in the case of Radburn v. Fir Tree Lumber Co., 83 Wash. 643, 145 Pac. 632, that the last sentence in section 339, Rem. Code, as to the manner of taking exceptions to instructions given, is equally applicable to the refusal of the court to give requested instructions. We think the refusal of the requested instruction was reversible error. Although disputed, there was substantial evidence to show appellants had in various ways attempted to counsel and advise their son against respondent's relations with him, including threats to him of disinheritance and frequent efforts to keep him at their home and away from respondent. It is not enough to advise the jury simply that their belief in the good faith of the parents is sufficient to warrant a verdict in their favor. When requested, the jury should be directed how to proceed in de That the burden of proof is heavier in this kind of action than some other kinds of civil actions see Brison v. McKellop, 41 Okl. 374, 138 Pac. 154; Hossfeld v. Hossfeld, 188 Fed. 61, 110 C. C. A. 131. The Supreme Court of Iowa, in the case of Busenbark v. Busenbark, 150 Iowa, 7, 129 N. W. 332, says: "The law is tender of the parental relationship. The parent has the liberty of extreme solicitude for the welfare of the child even after marriage, and may advise freely and frequently and even foolishly. His good faith will be presumed until the contrary is made to apN. W. 150]; Heisler v. Heisler (Iowa) 127 N. pear. Corrick v. Dunham, 147 Iowa, 320 [126 W. 823, and authorities cited therein." The case of Cornelius v. Cornelius, 233 Mo. 1, 135 S. W. 65, was one in which a woman sued her father-in-law for the alienation of her husband's affections. The opinion sets out an instruction requested by the defendant including the subject of the pre (180 P.) and also sets out the one given in its stead which omitted all reference to the presumption of good faith, concerning which the Supreme Court then said: "If defendant was entitled to the presumption of good faith, as he was, its existence should not have been left to be felt out and inferred by way of implication and argument by the jury, but it should have been boldly and plainly declared." Miller v. Miller, 154 Iowa, 344, 134 N. W. 1058. [2, 3] (2) It is next contended there was no alienation of affections shown. This is a challenge to the sufficiency of the evidence and carries a waiver of appellants' evidence. Contradictions are for the jury. An examination of the evidence satisfies us the case was one for the jury. [4] (3) Over objections respondent was permitted to show the wealth of appellants. They asked, and as presented by them the court refused to give, an instruction to the jury that the wealth of appellants should not be taken into consideration in determining the amount of recovery if the verdict should be for respondent. But the jury was clearly, positively, and properly instructed on the subject, and the purpose of admitting the testimony, as follows: "In the event of your finding the issues in this case in favor of the plaintiff, then in the matter of assessing damages, if any, which you may believe from the evidence the plaintiff sustained, you should not take into consideration any testimony offered and received showing the amount of the wealth of the defendants. Testimony concerning the wealth of the defendants was offered and received only as affecting the mind of Miles Cramer and as tending to influence him in his action, if you find he was influenced, toward the plaintiff, and for no other purpose, and beyond considering such testimony for that purpose, such testimony must not be considered by you." R. See 13 R. C. L. p. 1479, § 528; Price v. by the appellants. This was a matter rest- As appellants were not allowed an instruction upon the presumption of good faith, they were cut off from a clear legal right, for which cause the judgment is re On appeal from order granting new trial because evidence was insufficient to justify the verdict, the Supreme Court will not review the questions whether the trial court erred in withdrawing from the consideration of the jury the fact that defendant's contract with a county to build a drainage ditch and dam (which ditch overflowed and destroyed plaintiff's crops) had not been completed within the time limited, and the fact that defendant's agent had misrepresented the time of completion. 2. APPEAL AND ERROR 867(2)-RIGHT TO URGE ERROR-APPEAL FROM GRANT OF NEW TRIAL. [5] (4) Appellants requested and the court refused an instruction for the determination if respondent had not abandoned her hus- Where there was verdict for plaintiff, but band, and, if so, that she would not be en- the court granted defendant new trial for insuftitled to recover in this action. The refusal ficiency of the evidence, there being no judgwas right. If it was true that respondentment against defendant, he cannot claim in the had lately declined to live with her hus-order granting new trial that the trial court errSupreme Court on plaintiff's appeal from the band, it would not necessarily be inconsist- ed in refusing to grant his motions for nonsuit ent with the fact that the husband's affec- and for judgment notwithstanding the verdict. tions had been alienated from her by appellants. To the extent that an estrange 3. NEW TRIAL 70-DISCRETION OF COURTment and living apart of respondent from her husband were shown, so far as its influence upon the case was concerned, the jury was properly advised in other general instructions given. INSUFFICIENCY OF THE EVIDENCE. tiff and his assignors from overflowing of a In an action for injury to the lands of plaindrainage ditch under construction by defendant for a county, order of the trial court setting aside verdict for plaintiff for over $4,000, as unsupported by evidence, which was largely a matter of opinion, held not an abuse of discre [6] (5) Finally, error is predicated upon the refusal of the court to submit to the jury certain special interrogatories proposed tion. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Department 2. [outlined, averring that the dam placed in the Appeal from Superior Court, Walla Walla ditch by Campbell caused the water therein County; Edward C. Mills, Judge. Action by J. E. Brace against Hans Pederson. There was judgment for plaintiff, and from an order granting defendant's motion for new trial, plaintiff appeals. Affirmed. Chas. W. Johnson, of Pasco, for appellant. John C. Hurspool, of Walla Walla, and V. O. Nichoson, of Sunnyside, for respondent. to back up and overflow the lands of himself and his assignors, that the dam was negligently placed therein by Campbell, and negligently and carelessly maintained therein, without regard to the growing crops, and that as the result thereof the crops were destroyed, to the damage of the appellant and his assignors, without fault on their part. The appellant at the trial, which was had to a jury, based his right of recovery in part FULLERTON, J. The respondent, Peder- upon the fact that the ditch was not completson, entered into a contract with Walla Wal-ed within the time limited by the contract la county to construct a drainage ditch in with the county, and in part upon the reprewhat is known as drainage improvement dis-sentations of the respondent's agent that the trict No. 2 of that county. The contract call-ditch would be completed in the year 1916, in ed for the completion of the ditch by July time to take care of the waste waters of that 20, 1915. The record does not disclose when season. The court however, withdrew these the ditch was actually completed, although it questions from the consideration of the jury, does appear that it was not completed submitting to them only the question whethwithin the time fixed in the contract, nor for er the destruction of the crops was the remore than a year thereafter. The respondent sult of a careless and negligent maintenance placed one Campbell in charge of the work. of the dam mentioned. The amount claimed The appellant and certain others whose as damages was $6,925. The jury returned claims were later assigned to him owned a verdict for the appellant in the sum of lands adjacent to the ditch and subject to $4,744. After the return of the verdict the drainage thereby. The land is situated in an respondent moved for a new trial, basing his irrigated section, and the waters the ditch motion upon all of the statutory grounds. was intended to drain were the waste waters The trial court granted the motion, reciting accumulating during the irrigating season; in his order that it was granted "upon the the greatest accumulation of the year proba- ground and for the reason that the evidence bly being in the months of June and July. is wholly insufficient to justify the verdict." Some time in March, 1916, before the crop The appeal is from this order. ping season, and while work was in progress on the ditch, the appellant and certain of his assignors approached Campbell and inquired of him when the ditch would be completed and whether it would be safe for them to pre-pleted within the time limited therein and pare and seed their lands to crops for the coming crop season. Campbell assured them that he would be through with the work on the ditch in about three weeks from that time, in ample time for the ditch to take care of the drainage waters of the irrigating sea son. The excavation work on the ditch was then practically completed, although it was not down to grade in all places, and at one place, below the lands of the appellant and his assignors, was a ledge of rock which remained to be removed. The appellant and his assignors, relying on the representations made by Campbell, prepared and seeded their lands to crop in the proper season during the spring of 1916. The ditch, however, was not completed within the time fixed by Campbell nor for a considerable time thereafter. In the month of June Campbell caused a dam to be placed across the ditch to hold the waters back while the ledge of rock was being removed. The ditch did not take care of the surplus waters as was expected, and the crops planted on the lands were destroyed thereby, before their maturity. This action was instituted to recover the value of the crops destroyed. In his complaint [1] The appellant urges in this court that the trial court erred in its rulings wherein it withdrew from the consideration of the jury the fact that the contract had not been com the fact that the respondent's agent had misrepresented the time when the ditch would actually be completed, urging that they will become important should this court sustain the order of the trial court, and a new trial be thus necessitated. But we cannot conclude that these questions are before us for review on the present appeal. In a case where the trial court excluded evidence offered by the party against whom the verdict: was returned and granted a new trial solely for that reason on the motion of the party, it may be that on the appeal of the other party the appellate court will inquire into the admissibility of such evidence, but this would be because the error was directly involved in and affected by the order from which the appeal was taken, not because a party appealing is entitled to have every claimed error occurring at the trial reviewed. The rule is that appellate courts will review those questions only which are essential to a determination of the case, not those a decision of which can be no more than advisory, in no way becoming a part of the law of the case. Manifestly the questions here suggested, however determined, cannot affect the merits of the |