ON CONFLICTING EVIDENCE NOT DISTURBED,

showing the cost of raising and marketing | 2. APPEAL AND ERROR 1011(1)-FINDINGS the crops and the value thereof in the market. If the jury believed respondents' testimony, as it evidently did, the verdict of $2,500 for the crops was entirely within rea

son.

[2, 3] We are frank to say that, under all the circumstances the special verdict of $3,500 damages to the land appears to us to be excessive. Manifestly, it so appeared to the trial court, and for that reason he caused the verdict to be reduced $2,000. While there is nothing in the record to show whether this $2,000 was deducted from the amount of the damages on account of the crops or the land, or both, we think we may fairly as

sume that it was meant to be taken from the special verdict of $3,500 damages to the land. If so, this would only leave $1,500 damages to the land. According to the testimony, the cost of removing the débris from the land was $400 or $500, and that some of the soil was washed away, and that the land was made wet and sour, there can be no question. This dam has been productive of a great deal of litigation; this is the third time these parties and their predecessors have been before this court with reference to the same character of damage; the litigation seems to be perennial. However, this suit was for the damage caused by the 1917 floods, and the court's instructions to the jury were very full and elaborate, and limited recovery to the year 1917. No errors in the instructions have been pointed out; in fact, appellant does not claim there were any errors therein. The jury was permitted to view the damaged premises. Both parties introduced a large volume of testimony, and we cannot say the verdict, as reduced, is excessive. Nor can we overlook the fact that this same case was tried by a previous jury, which returned a verdict for $7,500, which was set aside and a new trial granted, resulting in a verdict for $6,000, reduced by the court to $4,000.

Judgment affirmed.

HOLCOMB, C. J., and TOLMAN, LERTON, and MOUNT, JJ., concur.

(110 Wash. 610)

PETERSON v. OGLE et al. (Supreme Court of Washington. 1. APPEAL AND ERROR

Findings by the trial court, based on conflicting evidence cannot be disturbed against the preponderance of the evidence.

Department 2.

as

Appeal from Superior Court, Spokane County; Hugo E. Oswald, Judge.

Action by C. W. Peterson against M. Ogle and wife and W. G. Mauser and wife. Judgment for plaintiff, and defendants Mauser and wife appeal. Affirmed.

Fred M. Williams and Reuben Crandell, both of Spokane, for appellants. Danson, Williams & Danson, of Spokane, for respondent.

TOLMAN, J. The respondent, as plaintiff, brought this action to rescind and set aside a conveyance of real estate, which he alleged he was induced to make by reason of certain false and fraudulent representations, upon which he relied. From a judgment against all of the defendants in accordance with the prayer of the complaint, Mauser and wife have appealed.

[1] General assignments of error are made upon the admission and rejection of evidence, but no basis therefor is shown by the abstract, nor have any particular rulings of the court been in any manner pointed out or called to our attention. Under these conditions we decline to go over the statement of facts and consider each ruling of the court upon the admission and rejection of evidence as being no part of our duty.

[2] All of the remaining errors assigned go to the sufficiency of the evidence to warrant the judgment. The record is voluminous and has been liberally abstracted. We have studied the abstract and upon points sharply in issue have had recourse to the statement of facts. The evidence on the part of respondent, if believed, establishes a state of facts constituting conspiracy to deprive him of his property, which closely approaches FUL- what is commonly called "a confidence game," while the denials and explanations on the part of appellants may be truthful and honest, or may be the usual and plausible defense of those who prey upon others. The trial court had the principal witnesses before him in person, and could and did observe their demeanor and manner of testifying, and the findings and judgment are eloquent of the fact that he believed respondent's witnesses and disbelieved those of appellants, and we cannot from the record say that the evidence preponderates against his findings.

(No. 15604.)

April 5, 1920.) 728(1)-GENERAL

ASSIGNMENT OF ERROR IN RULING ON EVI-
DENCE INSUFFICIENT.

General assignments of error made on the admission and rejection of evidence will not be considered where no basis therefor is shown by the abstract, and no particular rulings of the court are pointed out.

It would serve no good purpose to attempt to state the facts here or discuss the evidence in detail, and anything less than a full statement and discussion might be misleading.

(188 P.)

Finding that the evidence warrants the Judgment of the trial court, that judgment is affirmed.

HOLCOMB, C. J., and BRIDGES, FULLERTON, and MOUNT, JJ., concur.

(110 Wash. 649)

MOORE v. STETSON MACH. WORKS. (No. 15618.)

(Supreme Court of Washington. April 6, 1920.) 1. EVIDENCE

214-OFFER TO SETTLE COM

PETENT ONLY AFTER IT ADMITS FACT. An offer to settle or compromise a claim, even if not made without prejudice, is admissible in a subsequent action on the claim only if the party making the offer thereby admitted a fact which affected his liability.

2. EVIDENCE 219(3)-REPAIRS AND REQUEST FOR RELEASE NOT COMPETENT AS AD

MISSION OF LIABILITY.

TOLMAN, J. Respondent, brought this action to recover damages for personal injuries received in an automobile collision. The case was tried to a jury, which returned a verdict in favor of respondent and against appellant, who brings the case here for review on appeal. No contention is made that the evidence was insufficient to take the

to state only such facts as bear upon the errors assigned.

That defendant voluntarily repaired without charge plaintiff's automobile, damaged in a col-case to the jury; hence we find it necessary lision with automobile driven by defendant's employé, and requested plaintiff to sign a release of all claim for damages, is not an admission of liability by defendant, and evidence thereof is incompetent in an action to recover damages for the collision.

3. EVIDENCE 213(1)—WANT OF CONSIDERATION FOR RELEASE DOES NOT MAKE OFFER OF SETTLEMENT COMPETENT.

It is first contended that the trial court erred in admitting evidence of an attempt to settle or compromise, and in permitting respondent's counsel to argue to the jury that appellant thereby admitted its liability. Appellant at all times contended that the automobile which collided with respondent's car did not belong to it, but was owned by one George W. Stetson, its president, and used only for his personal convenience and pleasure; that a short time before the accident this car had been taken to appellant's shop to be repaired, and at the time of the accident was being driven from the shop to Mr. 231(5)—OBJECTION Stetson's home by one of appellant's work

That defendant voluntarily repaired plain-
tiff's automobile after a collision so that the
release of liability tendered by defendant, if
signed by plaintiff, would have been ineffective
for want of consideration, does not make the
release admissible on plaintiff's behalf as an
admission by defendant.
4. APPEAL AND ERROR

TO TESTIMONY CONCERNING OFFER TO SETTLE
HELD SUFFICIENT.

Where the objections to testimony concerning an offer of settlement were sufficient to advise the court of the ground of objection, and thereafter specific objections were made giving ample opportunity of withdrawal of the testimony before the close of plaintiff's case, the admission of the evidence can be reviewed.

5. APPEAL AND ERROR 1050(1)—ADMISSION

CIAL.

men, partly as an accommodation to Mr. Stetson, and partly to make more room in the shop. After the accident, appellant, without consulting the respondent, or obtaining his consent, took his car to its shop, repaired it, and sent it by its foreman to respondent's home. Respondent and one of his witnesses were permitted to testify over the objection of appellant that when the car was

OF ATTEMPTED SETTLEMENT HELD PREJUDI- brought home appellant's foreman presented to respondent a form of release discharging In an action for damages resulting from a appellant from all liability growing out of collision between automobiles where defendant the accident, which respondent was requestdenied all liability, admission of evidence of deed to sign. Upon his refusal to execute the fendant's offer to settle was prejudicial where release, the foreman took the car away with plaintiff's attorney argued to the jury that the him, but it was again returned and left with offer was equivalent to a confession of liability. respondent a few days later, and no charge was ever made for repairing it. A subpoena 6. WITNESSES 275(2)-CROSS-EXAMINATION duces tecum was served upon Mr. George W. OF PLAINTIFF MAY COVER WHOLE FIELD. Stetson, the president of the appellant company, requiring the production of the document which respondent had been asked to sign, and this subpoena was offered in evi

Where plaintiff had pleaded loss of new business as an element of damages resulting from an automobile collision, he could offer evidence thereon, and defendant was not limited

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 188 P.-49

dence and read to the jury as a basis for of- [ done limits the action to the repairing of refering oral testimony as to the contents of the document.

[1] "Whether an offer to compromise a claim, or to settle it by a partial or complete payment, amounts to an admission of the truth of the facts on which the claim is based, and is therefore receivable in evidence, is a question which has given rise to prolonged discussion and to varied, but often unsatisfactory, attempts at explanation. The solution is a simple one in its principle, though elusive and indefinite in its application; it is merely this, that a concession which is hypothetical only can never be treated as an assertion representing the party's actual belief, and therefore cannot be an admission; and, conversely, an unconditional assertion is receivable, without any regard to the circumstances accompanying it." 2 Wigmore on Evidence, § 1061.

spondent's car, and the request that the release be executed. Appellant, being engaged in the repair business, might have felt it good policy to repair the car, even though satisfied that it could establish nonliability, and the act of repairing under the conditions shown here is not an admission of liability or an admission that it was the owner or operator of the Peerless car which collided with respondent's machine, or that the driver of the Peerless car was at fault and respondent without fault. Neither was the presentation of the written release with request for its execution an admission of any such fact. If the driver of a car, wholly without fault in any particular, should injure a child, and call a doctor at his own expense to treat the injured one, he would be doing only that which all would commend, and his action in so doing should not be paraded before the jury as an admission of his liability. To permit that course would be to penalize the "Good Samaritan" and to encourage the heartless to "pass by on the other side." The only case called to our attention which seems to so hold is Langdon v. Ahrends, 166 Iowa, 636, 147 N. W. 940, and, if it does so hold, we decline to follow it.

[3] But it is contended that this request for a release is not privileged as an offer of compromise, because the repairs upon respondent's car were made voluntarily, and therefore no consideration was offered. It is true that in Shilliam v. Newman, 94 Wash. 637, 162 Pac. 977, and Kennedy v. S., P. & S. R. Co., 73 Wash. 389, 132 Pac. 50, 46 L. R. A. (N. S.) 419, we held that, a release executed under such circumstances was without consideration and could not be admitted on the request of the defendant to show a settlement and discharge of liability, a rule which we adhere to, and would apply here had the release been signed and its introduction sought by appellant to defeat the action. But these cases do not meet the question here presented, and are not authority for the admissibility of these particular facts as an admission of liability.

Nor does it appear, except in a very few jurisdictions, that the offer should be express ly made "without prejudice,” or stated to be conditional. If it appears to have been made for the purpose of buying peace, and does not admit any fact, it is inadmissible; while, if it admits the fact, upon which the liability is based, in whole or in part, no conditions therein stated would seem to affect its admissibility. Wigmore on Evidence, § 1061; Elliott on Evidence, 240. We have examined with care the authorities cited by each party here, and find that in the main they divide in accordance with the rule just stated. As each case rests upon its peculiar facts, no advantage can be gained by an extended discussion of them. Among those cases holding that there was no admission of a fact, and that the compromise offer was inadmissible, are the following: Larsen v. Sedro-Woolley, 49 Wash. 134, 94 Pac. 938; National Bank of Commerce v. Gougar, 51 Wash. 204, 98 Pac. 607; Hartwell Lbr. Co. v. Bork, 138 Ill. App. 506; Higgins v. Shepard, 182 Mass. 364, 65 N. E. 805; McHenry Coal Co. v. Sneddon, 98 Ky. 684, 34 S. W. 228; Sterrett v. Metropolitan St. Ry. Co., 225 Mo. 99, 123 S. W. 877; Finn v. New England T. & T. Co., 101 [4, 5] Again it is contended that the objecMe. 279, 64 Atl. 490; Salter v. Rhode Is- tions to the offer of this evidence were not land Co., 27 R. I. 27, 60 Atl. 588. While the sufficiently specific. We have carefully read following are illustrative of the rule that, the record, and are convinced that the trial if containing an admission of an independent court was fully advised as to the nature of fact, the offer is admissible: Long v. Pierce the ground of the objections at the time the County, 22 Wash. 330, 61 Pac. 142; Holt v. evidence was offered, and thereafter specific Great Eastern Casualty Co. (Utah) 173 Pac. objections were made and he had ample op1168; Watson v. Reed, 129 Ala. 388, 29 South.portunity before respondent's case was closed 837; Hook v. Bunch, 180 Ill. App. 39; Kalus to withdraw the testimony. The full force of v. Bass, 122 Md. 467, 89 Atl. 731, Ann. Cas. 1916A, 985; Shows v. Steiner, Lobman & Frank, 175 Ala. 363, 57 South. 700; Freeman v. Eldridge, 26 Okl. 601, 110 Pac. 1057.

[2] Any one buying his peace, when offering anything in compromise, would surely ask for a written discharge of the liability, and here there is no testimony as to anything said, and the only testimony as to what was

the error in admitting this testimony can best be expressed by quoting from respondent's argument to the jury as follows:

Kummer for Mr. Moore to sign? Why did they "Why did they send out that release by Mr. ask Mr. Moore to sign that release to release them from the very damages we are now asking? Why, ladies and gentlemen, it is equal to a confession of liability; it is equivalent to

(188 P.)

a confession of the fault or wrong on their part absolutely."

How far the jury was influenced by such argument we cannot tell, but it may have based its verdict entirely upon this objectionable evidence.

[6] Since for the reasons indicated the case

must be retried, it may be well to say that we find the remaining assignments of error without merit. The evidence as to respondent's loss of new business was proper, that being an element of the damages alleged to have been suffered, and appellant was not limited thereby, but by cross-examination and otherwise could have covered the whole field of the loss of earnings suffered by respondent because of the injuries received. We find no error in the exclusion of evidence of which complaint is made, and after careful examination we fail to find error in instructing the jury. The case will be reversed, and remanded for a new trial.

Reversed and remanded.

BRIDGES, J. The trial court entered its decree granting a complete divorce to the plaintiff from the defendant. It awarded to the plaintiff the care and custody of the minor child, Catherine Curtis, now about ten years old. All the other children are of lawful age. The decree also awarded to theplaintiff, among other things, the Curtis Studio, located in the city of Seattle, Wash., together with all its equipment, good will, business, contracts, and accounts. requires the defendant to make payment of $100 per month for the support of the plaintiff and her minor child.

It also

He com

The defendant has appealed. plains only with regard to the distribution of the property. He is particularly dissatisfied with those portions of the decree which give the studio to the respondent and require him to make monthly payment of $100 for her support and that of the child. He contends that the studio is the only going business the parties have, and that its name is its chief asset, that respondent will not be

HOLCOMB, C. J., and BRIDGES and able to operate the business successfully, and MOUNT, JJ., concur.

(110 Wash. 644)

CURTIS v. CURTIS. (No. 15439.) (Supreme Court of Washington. April 6, 1920.)

1. DIVORCE 252-AWARDING OF BUSINESS

CONSTITUTING CHIEF ASSETS OF HUSBAND
AND WIFE TO WIFE HELD PROPER.

that it will become a complete loss. On the contrary, respondent contends that she can successfully operate the property and will have great need of the revenues derived therefrom.

[1, 2] We have carefully read and considered the testimony. Therefrom it appears that the net value of all the property of the parties is small. The studio constitutes the chief asset, and the debts against it are now almost equal to its value. The appellant, for several years past, has given very little atIn wife's divorce suit, where a studio con- tention to it; he has given most of his time stituting the chief asset of the parties had debts The respondent has had against it almost equal to its value, and where to other labors. husband for several years had given very little some experience in this kind of work, and attention to the studio business, and where wife we see no reason why she should not be able had some experience in studio work enabling her to run this studio successfully. It would to run studio successfully, that portion of de-serve no good purpose to review in detail cree awarding studio to wife will not be dis- this unfortunate affair. Sufficient to say turbed.

2. DIVORCE 240(2) MONTHLY PAYMENT FOR SUPPORT OF WIFE HELD IMPROPER.

that we are satisfied to affirm all parts of the decree except that portion with reference to the monthly payments in cash. There is Where court in giving wife divorce awarded already a great deal of bitterness between her the business which constituted the chief as- these parties, and this portion of the decree set of the parties, that portion of decree requir-will likely continue and, if possible, increase ing husband to make monthly payment of $100 for support of wife and minor child will be amended by providing merely for monthly pay

ment of $50 for the child's support.

Department 2.

such feeling. Whatever cash payments are made should be only for the support of the child during its minority or until the further

order of the court; such payments should be made to the respondent while she has the

Appeal from Superior Court, King Coun- care and custody of the child. ty; King Dykeman, Judge.

Suit for divorce by Clara J. Curtis against Edward S. Curtis. Decree for plaintiff, and defendant appeals. Affirmed as amended.

We think the monthly payments should henceforth after the filing of the remittitur be in the sum of $50; the court reserving the right to increase or decrease such amount at any time during the minority of the child. The lower court is directed to make its decree conform herewith, and, as so amended, J. W. Bryan, of Bremerton, for respond- it is affirmed. Each party shall pay his or ent. her own costs of this appeal. Respondent's

Herr, Bayley & Croson and Walter S. Fulton, all of Seattle, for appellant.

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

request for an attorney's fee on this appeal 6. NUISANCE 87-ORDER IN CONTEMPT PROis denied.

HOLCOMB, C. J., and FULLERTON, TOLMAN, and MOUNT, JJ., concur.

(110 Wash. 572)

OLSON et al. v. CITY OF BREMERTON et al. (No. 15423.)

(Supreme Court of Washington. April 5, 1920.)

1. NUISANCE 72-GARBAGE DUMP HELD SPECIAL INJURY TO PROPERTY OWNERS ENTITLING THEM TO ABATE NUISANCE.

Property owners contiguous to park used by city for dumping of garbage, etc., and subjected especially to annoyance, inconvenience, and danger to health because of noxious gases and fumes from garbage, and by smoke from its burning by the city, and by flies and insects, were specially injured differently in kind and degree from public, entitling them to maintain action to abate nuisance.

2. NUISANCE 84-COMPLAINT IN ACTION FOR INJUNCTION BY PRIVATE PARTY MUST SHOW SPECIAL DAMAGE.

If complaint alleged existence and continuance of public nuisance, whether by violation of city ordinances or independently, it was further necessary for property owners suing as private parties to show special damage in order to abate nuisance by injunction.

CEEDINGS FOR VIOLATION OF INJUNCTION
HARMLESS, AND NOT TO BE DISPOSED OF ON
MERITS ON APPEAL.

Where city officials at suit of property owners were enjoined from dumping garbage in park in violation of ordinance, which was repealed, and officials proceeded to dispose of garbage as formerly, but in contempt proceedings were discharged without imposition of penalty other than a warning, defendant officials were not harmed by order in contempt proceedings, and matter will not be disposed of on merits on their appeal from it and judgment in the suit.

Department 1.

Appeal from Superior Court, Kitsap County; Walter M. French, Judge.

Action by Ed Olson and others against the City of Bremerton and others. From a decree enjoining defendant City, and from the judgment in contempt proceedings against certain defendants for violating the decree, such defendants appeal. Judgment reversed, and appeal from order in contempt proceedings dismissed.

H. E. Gorman and F. W. Moore, both of Bremerton, for appellants.

Bryan & Garland, of Bremerton, for respondents.

MITCHELL, J. This is an appeal from a final decree enjoining the city of Bremerton from depositing garbage in or upon Evergreen Park in that city, and also an appeal from a judgment in contempt proceedings 3. PLEADING ~345(2)—AVERMENTS OF COM-instituted against certain of the defendants

PLAINT DENIED BY ANSWER HELD NOT TO
AUTHORIZE JUDGMENT.

Averments of complaint sufficient as against demurrer on being denied by answer were scripped of all value to authorize judgment on the pleadings.

4. PLEADING

122-DENIAL ON INFORMATION AND BELIEF THAT PLAINTIFFS WERE

RESIDENTS HELD GOOD IN FORM.

In action by residents and taxpayers of city to enjoin a nuisance in park consisting of dumping of garbage by city officials, denial on information and belief of allegations of complaint that plaintiffs were taxpayers, if not good on theory it is not allowable thus to put in issue matters of public record, was good in form as to allegation plaintiffs were residents of city.

for violating the decree.

Ed Olson and others, as plaintiffs, commenced the action against the city, its mayor, seven councilmen, garbage superintendent, and three park commissioners, as defendants. In paragraph 1 of the complaint it is alleged the plaintiffs are residents of the city of Bremerton and taxpayers in said city, owning property and paying taxes thereon for the maintenance of the city. In the answer of defendants, other than the park commissioners, the allegations of paragraph 1 of the complaint are denied on information and belief. Proceeding, the plaintiffs allege in substance, though with considerable detail, the establishment and existence of Evergreen Park within the city; that the Park consists in part of tidelands, set aside and used as a playground and place of recreation for the inhabitants of the city; and that the defendants are maintaining, and In action by taxpayers and residents near unless enjoined will continue to maintain, a park to enjoin city's maintaining nuisance by public nuisance, by continuously depositing dumping garbage, attitude of park commis-in and upon the public park filth, decaying sioners, by admissions of nuisance and prayer matter, ashes, cans, boxes, débris, and garto enjoin dumping, held insufficient to warrant court in rendering, on plaintiff's motion, the bage of all kinds. Further, in paragraph 11 board of park commissioners not joining there of the complaint, it is specifically alleged as in, judgment on pleadings for plaintiffs.

5. PLEADING 349-JUDGMENT FOR PLAIN-
TIFFS ON PLEADINGS ON THEIR MOTION NOT

WARRANTED BY ADMISSIONS OF CERTAIN DE-
FENDANTS.

follows: