(64 Wash. 47) STATE v. POOLE. (Supreme Court of Washington. July 3, 1911.) 1. CRIMINAL LAW (§ 178*) - FORMER JEOPARDY-DISMISSAL. below based its ruling are these: On August 8, 1910, an information was filed against respondent, charging him with a violation of the adulterated food act, as found in Laws 1907, c. 211. The offense charged was unRem. & Bal. Code, § 2311, provides that. if der subdivision 6 of section 3 in selling "a a person held to answer any criminal charge is not indicted or informed against within 30 days, quantity of veal, which said veal was then the court shall order the prosecution dismissed and there wholly the product of a filthy, unless good cause is shown to the contrary. decomposed, and putrid animal substance, Section 2312 declares that if a defendant, in- to wit, a calf unfit for food." Upon this indicted or informed against, is not brought to trial within 60 days, the prosecution shall be formation respondent was arraigned and dismissed unless cause is shown to the contrary. pleaded not guilty. On October 11, 1910, the Section 2314 authorizes the court or prosecut state, in the meantime having satisfied iting attorney, in the furtherance of justice, to self from consultation with the witnesses redismiss a criminal prosecution for cause shown in the record, and section 2315 provides that an lied upon to sustain the charge that a conorder dismissing a prosecution under such prior viction could not be obtained because of a sections shall bar another prosecution for mis- variance between the charge and the proof, demeanor or gross misdemeanor, where the pros- applied for leave to dismiss the information, ecution dismissed charges the same misdemeanor or gross misdemeanor, but in no other case. upon the ground of such variance and a deHeld, that the dismissals referred to in sections fect in the information, and to file a new 2314 and 2315 are only those where it was the one, which leave was granted. Thereupon a expressed purpose and intention of the prosecuting attorney to discontinue or abandon the pros- new information was filed, under a disjuncecution, which then operated as a bar only to a tive clause of the same subdivision, charging prosecution for the same misdemeanor charged the sale of "a quantity of veal, which said in a subsequent information, so that where an veal was then and there the product of an information charging accused with selling a quantity of veal, the product of putrid animal animal, to wit, a calf, which had died othsubstance, to wit, a calf unfit for food, was dis-erwise than by slaughter." Respondent was missed for variance on leave to file a new information, such dismissal was no bar to a subsequent prosecution for a different offense, to wit, sale of veal from a calf which had died other wise than by slaughter. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 326-329; Dec. Dig. § 178.*] 2. CRIMINAL LAW (§ 178*)-DISMISSAL-FORMER JEOPARDY-STATUTES-"PROOF"-"EVIDENCE.' Rem. & Bal. Code, § 2316, provides that no order of dismissal on the grounds of variance between the information and the proof shall bar another prosecution for the same offense. Held, that while the words "proof" and "evidence" were not synonymous, evidence being the medium through which proof is established and proof the effect of evidence rather than the evidence itself, the word "proof" as used in the statute was loosely used in the sense of evidence; and hence it was not essential to the application of the section that evidence should have been actually introduced at the trial and a variance so established in order that a dismissal because of variance should be relieved of its effect as former jeopardy. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 326-329; Dec. Dig. § 178.* For other definitions, see Words and Phrases, vol. 3. pp. 2521-2524; vol. 8, p. 7655; vol. 6, pp. 5684-5686.] Department 2. Appeal from Superior Court, Adams County; O. R. Holcomb, Judge. E. C. Poole was charged with selling a quantity of veal which had died otherwise than by slaughter, and, from a judgment sustaining a plea of former jeopardy, the State appeals. Reversed and remanded. John Truax, for the State. Lovell & Davis, for respondent. MORRIS, J. Appeal from an order of dismissal upon sustaining a plea of former jeopardy. The facts upon which the court arraigned upon this second information, and entered a special plea in bar, setting up the first information, the application and order of dismissal thereof, and claiming former jeopardy. To this special plea the state demurred, which demurrer was overruled, the plea sustained, the information dismissed, and the respondent discharged; from which the state, excepting, appeals. [1] The state supports its position under section 2316, Rem. & Bal., providing that "no order of dismissal or directed verdict of not guilty on the ground of a variance between the indictment or information and the proof, or on the ground of any defect in such indictment or information, shall bar another prosecution for the same offense. Whenever a defendant shall be acquitted or convicted upon an indictment or information charging a crime consisting of different degrees, he cannot be proceeded against or tried for the same crime in another degree, nor an attempt to commit such crime or any degree thereof"; while respondent contends the proper rule to be applied is found in section 2315, Rem. & Bal., providing: "An order dismissing a prosecution under the provisions of sections 2311, 2312, or 2314, shall bar another prosecution for a misdemeanor or gross misdemeanor, where the prosecution dismissed charged the same misdemeanor or gross misdemeanor, but in no other case shall such order of dismissal bar another prosecution." Section 2311 relates to the filing of an information within 30 days after be ing held to answer to any criminal charge. Section 2312 provides for a trial within 60 days after the filing of information. These sections manifestly have no application here. Respondent cites State v. Durbin, 32 Wash. 289, 73 Pac. 373, as supporting his contention that the order of dismissal is a bar. It will be noted that the first information in that case charged the defendant with assault and battery, a misdemeanor. Subsequently a second information was filed, reciting the same facts, and charging an attempt to commit mayhem, a felony. The first information was then dismissed, and, the defendant's plea of former acquittal being denied, he was placed on trial and convicted of assault and battery. It was held that the dismissal of the charge of assault and battery was a bar to a second prosecution for the same offense, and that the defendant could not be tried upon an information charging a greater offense including the lesser, and be convicted of the lesser offense, after his dismissal had operated as an acquittal of the lesser offense. That holding in no way conflicts with our present view. The criminal act consisted in the doing of the prohibited thing, not in the name given to the act; and, when an information charging an act was dismissed, and a second information charging the identical act was fil Section 2314 provides: "The court may, elther upon its own motion or upon application of the prosecuting attorney, and in furtherance of justice, order any criminal prosecution to be dismissed; but in such case the reason of the dismissal must be set forth in the order which must be entered upon the record. No prosecuting attorney shall hereafter discontinue or abandon a prosecution except as provided in this section." Reading sections 2314 and 2315 together, it is plain the dismissal there referred to is where it is the expressed purpose and intention of the prosecuting attorney, for the reasons given in the order, to "hereafter discontinue or abandon a prosecution," and then such dismissal operates as a bar only when the same misdemeanor is charged in a second information. In other words, having expressly indicated a discontinuance and abandonment of the prosecution and permitted the defendant to go hence, the state may not thereafter withdraw such discontinuance or abandonment, and again subject the defendant to a trial upon the same misdemeanor. It is manifest that this record discloses no intention on the part of the prosecuting attorney to discontinue or abandon this prose-ed, it was a second prosecution for the same cution. On the contrary, it shows an avowed intention to continue the prosecution and subject the defendant to a trial for his alleged unlawful act, by making the dismissal and leave to file a second information parts of the same record, and setting forth in the moving papers the particular offense to be charged against the defendant in the second information and the ultimate fact he was prepared to prove to sustain the charge. Nelther was the offense charged in the second information the same misdemeanor charged in the first information. True, the misdemeanor charged in each information was of the same name or character, "selling an adulterated article of food," which in the one case was "the product of a filthy, decomposed, and putrid animal substance, to wit, a calf unfit for food," and in the other "the product of an animal, to wit, a calf, which said calf had died otherwise than by slaughter." In the one case the gravaman of the offense was the selling of decomposed and putrid veal, in the other the selling of real cut from a calf which had died otherwise than by slaughter. Evidence which would sustain the first charge would not sustain the second, as in the first charge the thing to be inquired into was the condition of the veal, while in the second it was that the calf had not been slaughtered. Both were misdemeanors, but they were not the same misdemeanor. To steal $10 from A. and on the same day to steal his watch of the value of $10 are both misdemeanors to be charged by the same name-petty larceny -but they are not the same misdemeanor nor the same larceny. Proof of one does not establish the other. Neither does proof of selling putrid veal establish that a calf died otherwise than by slaughter. act, irrespective of the name given to it in either instance. In the present case the act charged in the second information is not the act charged in the first information. It differs in the specific thing charged to be criminal. It differs in the character of evidence required and relied upon to sustain the charge. The person selling and the person to whom the article is sold are in each instance the same. But each information charges a different sale of a different prohibited article of food. In the Durbin Case we have the same act charged in both infor mations under a different name. In the present case, we have a different act charged in both informations under the same name; both a distinction and a difference. [2] Respondent's next contention in support of the judgment is based upon his definition of the word "proof," as used in section 2316; the argument being that there could be no variance between the information and the proof until the "proof" had been established by the state's evidence; and, assuming the right of dismissal, it could only be granted after the introduction of the testimony on the part of the state showing the variance. The law never requires the doing of a vain or useless thing, and it does not appeal to us as sound to say the state could dismiss only after the introduction of its evidence and the incurring of needless expense in order to establish its contention of a variance. Such a requirement would result in benefit neither to the state nor the defendant, except it be to inform the defendant of the character and sufficiency of the evidence relied upon by the state to secure a conviction, which might be a benefit in fact but not in law. It will be admitted that SERVANTS VICE PRINCIPAL AND REPRE- Defendant's gang foreman, or work foreman, was directing plaintiff and others, who were experienced structural iron workers, in the lashing of a mast to a hoist derrick using appliances which were in good order. Held that, as the work was free from any hidden danger and was not in itself dangerous to experienced men, hoisting the mast too high, so that it fell and the oversight or omission of the foreman in injured plaintiff, was the act of a fellow serv [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 449-474; Dec. Dig. § 190.*] Department 2. Appeal from Superior Court, King County; R. B. Albertson, Judge. Action by Charles Swanson against A. A. Gordon and S. W. White, partners, doing business as Gordon & White. From a judgment of dismissal, plaintiff appeals. Affirmed. in a restricted and technical sense there is [2. MASTER AND SERVANT (8 190*)— FELLOW a difference between the words "evidence" and "proof"; evidence being the medium through which proof is established, and proof being the effect of evidence rather than the evidence itself. People v. Beckwith, 108 N. Y. 67, 15 N. E. 53. And this technical distinction has been upheld where in the same statute both words are used, upon the ground that the Legislature in making use of the two words intended to establish and indicate a distinction beant, for which defendant was not liable. tween the two. Jastrzembski v. Marxhausen, 120 Mich. 677, 79 N. W. 935. "But, as in common use the end is often confounded with the means, so in language 'proof' is often used as a synonym with 'evidence."" Hill v. Watson, 10 S. C. 268. And "in ordinary language the terms are used interchangeably, and the word 'proof is used when evidence only is meant." Perry v. Dubuque Southwestern Ry. Co., 36 Iowa, 102. We think this is the sense in which the word "proof" is used in this statute, and that it was not intended that the state must proceed until evidence becomes proof before it can declare a variance, but that the prosecuting attorney owes a duty to both the state and the defendant to dismiss a prosecutior when he is honestly satisfied from the facts within his knowledge that he has charged the wrong act. The defendant can be tried but once for the same act Neither should the state be forced to put a defendant upon trial for an act which it is satisfied he Las not committed, in order to thereafter be in a position to prosecute him for an act he has committed. Owens & Finck, and Reynolds, Ballinger & Hutson, for appellant. Roberts, Battle, Hulbert & Tennant, for respondents. CHADWICK, J. Plaintiff and four others, all structural iron workers, were engaged in one gang on the Northern Bank building in the city of Seattle. One Norman was the gang foreman, and directed the work. He is called also a working foreman, or working boss, by some of the witnesses. He gave a bond when necessary. In the promotion of the work at hand, it became necessary to lash a mast on to a hoist derrick, so as to extend its sweep. The derrick was 20 feet 8 inches high, and the straight legs were tied by two rungs and a top piece. The mast was For these reasons, we are of the opinion a 6 by 8 stick of. timber, 17 feet long. In that the prosecuting attorney was entitled order to put it in the proper place, it became to set forth a variance and obtain leave to necessary to lift it so that it might be lashed dismiss and proceed anew; and that, hav- to the first or top rung of the derrick. Acing done so, the dismissal of the first in-cordingly two blocks with necessary tackle formation was not a bar to a prosecution under the second. The judgment is reversed, and the cause remanded for further proceedings. DUNBAR, C. J., and CROW, ELLIS, and CHADWICK, JJ., concur. (64 Wash. 27) SWANSON v. GORDON et al. (Supreme Court of Washington. July 1, 1911.) 1. MASTER AND SERVANT ( 189*) -- FELLOW SERVANTS-DUTY OF SUPERINTENDENCE. The duty of superintendence does not follow as a legal obligation because two or more inen are engaged in a like undertaking, but the question of the right of superintendence is to be determined by reference to the facts of the particular case. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 427; Dec. Dig. § 189.*]| were put in place, the top or fixed block so Q. and, plaintiff being unable to hold it, the steel, wasn't it? A. Yes, sir Now, when you went up there, you selected The work and the relations of the men may be best illustrated by reference to the record. One of the workmen says: "Q. There was nothing at all complicated about this? A. No, sir; not at all, just as straight as you have it there. Q. Just a simple proposition? A. Yes, sir. Q. And there was nothing about it that you could not see or Swanson could not see as well as Mr. Norman could see it or Mr. Gordon or Mr. White, anybody would see it? A. Yes, sir; just as straight as you have it there before you, gentlemen. Q. Nothing concealed? A. No, sir. Q. Or complicated about it? A. Not a thing." The charge of negligence in this case is that the foreman, in directing the operation of the derrick and movements of the men, was negligent, in that he allowed the mast to be pulled too far so that it toppled over. There is no allegation nor is there any showing of other negligence. On the other hand, it is shown by all of the witnesses that the appliances were ample and sufficient and in good condition; that the men were competent and skillful workmen; that there was no negligence in the selection, or an insufficient number, of men; and that the foreman was in no way incompetent. The case is reduced to the single proposition whether the oversight of a foreman who was one of a gang and working with it, and who failed to stop pulling on a rope attached to the mast in time to prevent the accident, is imputable to the master. [1] Appellant puts his principal reliance upon the following cases: Olson v. Erickson, 53 Wash. 458, 102 Pac. 400, O'Brien v. Page Lumber Company, 39 Wash. 537, 82 Pac. 114, Tills v. Great Northern Railway Company, 50 Wash. 536, 97 Pac. 737, 20 L. R. A. (N. S.) 434, and the cases cited in Desjardins v. St. Paul & Tacoma Lumber Company, 54 Wash. 278, 102 Pac. 1034, a case to which we shall hereafter refer. It has never been held that because two or more men are engaged in a like undertaking the duty of superintendence follows as a legal obligation. To put the mere details of a work under the burden of independent superintendence would necessitate the employment of one man to oversee every other, no matter what the character of the work. It is generally held that the question of the right of superintendence is to be resolved by reference to the facts of the given case. Engelking v. Spokane, 59 Wash. 446, 110 Pac. 25, 29 L. R. A. (N. S.) 481. Norman, the foreman, who was a witness for plaintiff, says: "Q. There was nothing in the process of elevating this stick but what was plain, could be seen by anybody? A. Just pulled it up. Q. Just pulled it up? A. Yes, sir. Q. And it was a simple thing to do, anybody could do it? A. Anybody could do it, but we did not do it. Lots of things look simple, but anybody cannot do it. Q. There was nothing about it that Mr. Swanson could not see just as well as you could see it? A. Yes, sir; he could see. Q. Nothing about it that he could not see just as well as Mr. Gordon could have seen it if he had been there? A. Yes, sir; they all could see it. Q. They all could see it? A. Yes, sir. Q. And you men were all of you iron workers? A. Yes, sir. Q. All members of the same order? A. Yes, sir. Q. And therefore there was no disposition on your part to hurt anybody else, was there? A. No, sir. Q. So that this was really an accident that happened there among you, wasn't it? A. It was just an oversight on my part in pulling it too high. Q. An oversight in pulling it too high on your part? A. Yes"-while plaintiff testified: "Q. Now, these five men were all experienced men, were they not? A. Yes, sir. Q. They were all experienced in this structural ironwork? A. Yes, sir. Q. As a matter of fact, Mr. Swanson, it was a good gang, wasn't it? A. Yes, sir. Q. All good men? A. Yes, sir. Q. Now the work of arranging this derrick there was merely a preliminary to putting up the big derrick? A. Yes, sir. Q. This derrick which is called the breast derrick was simply being put up in order to install this boom derrick that you used to handle the steel? A. Yes, sir. Q. And the breast derrick was not used in handling the steel, was it? A. Well, while assisting after-showing that it was customary to furnish an Q. It might assist afterwards? A. Yes, sir. Q. But what you were doing at the time in putting up the boom derrick was a mere incident in the real work of putting up the [2] We cannot presume that independent superintendence would have prevented the careless and negligent act of plaintiff's fellow workman, or, as he himself styles it, his oversight. A mast may be pulled an inch too far, a pole tipped an inch out of balance, the wall of a ditch may be dug without sufficient batter by one workman, and another may be injured, and yet the master may have done all that could reasonably be required of him. So in this case, with five competent and experienced men, with every appliance necessary, and these in perfect order, with no extra man to oversee such work, with no hidden danger or defect, the work, considering the. employment and skill of the workmen, not in itself dangerous, and a plaintiff who 1 out warning, and injury results to the servant, the master is liable. That rule cannot apply to this case because, if Brandt repre agency into action. He was holding a post with his hands. A ten year old boy could have held it. He took his hands from the post and attempted to hold it by means of a rope. The post fell without his volition, so far as the evidence shows. If that was negligence, it was his own negligence, and not that of the master." In that case the foreman removed his hands from the post which he was setting in an upright position, and it toppled over and fell. In this case the foreman pulled the mast a few inches beyond its proper place, and it toppled over, carrying the appellant with it. It was clearly an ommission of fellow service, and plaintiff cannot recover. Cavelin v. Company, 112 Pac. 349; Mercer v. Lloyd Transfer Co., 59 Wash. 560, 110 Pac. 389. Judgment affirmed. MORRIS, CROW, MOUNT, and ELLIS, JJ., concur. (85 Kan. 140) HUMBLE v. GERMAN ALLIANCE INS. CO. (Supreme Court of Kansas. June 10, 1911.) (Syllabus by the Court.) had himself been foreman on like jobs, know- { directs a dangerous agency into motion withing that the one whose carelessness is attributed to the master was a fellow workman with him, it would seem that the defendants had done their whole duty. The work-sented the master, he directed no dangerous men were employed in a common service. The accident occurred because of an omission of fellow service, and not from lack of superintendence. Without reviewing the cases relied on, it will be seen by reference that each of them turned on the fact that the character of the work was such that general oversight by an independent agency could not be dispensed with without depriving the injured servant of a substantial right. This case falls squarely within the case of Desjardins v. St. Paul & Tacoma Lumber Company, where the court said: "It was claimed by respondent at the trial, and is also claimed here, that Mr. Brandt was a vice principal, and that he was negligent in not warning respondent that the post was about to fall, and also negligent in placing the sling near the bottom of the post, instead of near the top. It is claimed by the appellant that the evidence shows Mr. Brandt was not a foreman, and had no more authority over respondent than respondent had over Mr. Brandt; in other words, that Mr. Brandt and respondent were simply fellow servants working together, with no authority the one over the other. We may assume, however, for the purposes of this case that Mr. Brandt was a foreman for the purpose of directing the work, and therefore had control over the respondent. Still the respondent's evidence makes it plain that the negligence which caused the injury was the negligence of a fellow servant in a mere detail of the work. It is not claimed that the proper appliances were not furnished by the master. Respondent states that: 'Brandt held the post and I thought he was going to hold it, and I did not suppose he would let it go. I just happened to look up and see Brandt had let go of the post and had his hand here on the rope close to the tackle. A ten year old boy could hold the post if he would not let go. In holding the post Mr. Brandt was performing a mere detail of the work. He was not performing any nondelegable duty of the master. If he was negligent in letting go of the post with his hands and attempting to hold it by the tackle, the negligence in that respect was clearly the negligence of a fellow servant, for which the master was not responsible. This case in this respect is controlled by the case of Jock v. Columbia & Puget Sound R. Co., 53 Wash. 437, 102 Pac. 405. The respondent relies upon the rule stated in Nelson v. Willey S. S. & Nav. Co., 26 Wash. 548, 67 Pac. 237; O'Brien v. Page Lumber Co., 39 Wash. 537, 82 Pac. 114; Dossett v. St. Paul & Tacoma 4. INSURANCE (§ 336*) — FORFEITURE — ADDITIONAL INSURANCE. Lumber Co., 40 Wash. 276, 82 Pac. 273, and Where a fire insurance policy is conditionother cases holding that, where the master ed to be void if the insured now has or shall * * * 1. REFERENCE ($ 100*)- REPORT-MODIFICATIONS SETTING ASIDE. It is competent for a court which appoints a referee to review, modify, or correct the referee's report, or to set it aside and grant a new trial of the case, and this may be done, although no exceptions are filed before the referee, or motion for a new trial presented to him. [Ed. Note.-For other cases, see Reference, Cent. Dig. §§ 157-168; Dec. Dig. § 100.*] 2. REFERENCE (§ 103*) REPORT SETTING ASIDE. report of the referee and grant a new trial when It is the duty of the court to set aside the it appears that the findings of the referee are contrary to the evidence, or his findings and decision are contrary to law, or where it aphad, or substantial justice has not been done. pears that a reasonably fair trial has not been [Ed. Note.-For other cases, see Reference, Cent. Dig. §§ 188-203; Dec. Dig. § 103.*] 3. APPEAL AND ERROR (§ 933*) PRESUMPTIONS FACTS NOT SHOWN BY RECORDNEW TRIAL. On an appeal from an order granting a new trial, because the decision was contrary to the evidence and the law, in a case wherein a reference was had, and where the evidence and the proceedings before the referee are not that sufficient grounds existed to warrant the brought up on the appeal, it will be presumed trial court in granting a new trial. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. 88 3772-3776; Dec. Dig. 933.*] |