she was riding was running at a speed in excess to strike at the time it was made, saying: of the maximum fixed by ordinance, and this "I will overrule the motion for the present." claim was denied by defendant, it was improper, where it appeared that the car had a clear At the close of the evidence the court denied track, to instruct the jury that they might find the defendant's motion to strike the evifor plaintiff, though the car was not running dence, and the appellant assigns this ruling in excess of the speed authorized, if a careful and prudent person would not, under the circumstances, have operated it at such speed. [Ed. Note. For other cases, see Street Railroads, Cent. Dig. §§ 258-269; Dec. Dig. 118.] Department 1. Appeal from Superior Court, Spokane County; J. Stanley Webster, Judge. Action by Marjorie Gifford against the Washington Water Power Company. From the judgment for plaintiff, defendant appeals. Reversed and remanded. Post, Avery & Higgins, of Spokane, for appellant. Plummer & Lavin, of Spokane, for respondent. as error. Dr. Hoag, a physician called by the plaintiff, testified, among other things, as follows: After describing the depression found on the head of the child: "Q. What would that pressure produce there at the present time, or some time in the future, in all reasonable probability? A. Well, there is a probability or possibility of its producing bringing on-epilepsy. "The Court: I didn't hear that. A. There is a possibility for its bringing on epilepsy in later life." Thereafter, on cross-examination, the doctor upon this question testified: "Q. I notice that you changed the word, when you were asked as to the possibility of troubles arising from depression of the skull at this point; you started in by saying 'probably,' and MOUNT, J. The plaintiff, a female child then changed it to 'possibility' of epilepsy; that of the age of about three years, was riding is correct, isn't it? A. Well, I did not intenin the rear seat of an automobile driven by tionally, Q. What? A. I didn't intentionally change it. Q. You meant to say possibility all one George E. Bartoo, going east along York the time, didn't you; you didn't mean to say avenue in the city of Spokane. York avenue probability? A. Well, there is a probability runs east and west, and crosses Monroe street, which runs north and south, in a residential portion of Spokane. When the automobile came to Monroe street, Bartoo, thinking that he could not cross ahead of the street car, which was traveling south on Monroe street, turned north on the left-hand side of Monroe street, and collided with the street car of the defendant. The right front wheel of the automobile struck the right front corner of the street car. The child was injured, and later brought this action by guardian ad litem to recover for the injury. The case was tried to the court and a jury, and resulted in a judgment for $2,000. The defendant has appealed. It was conceded at the trial that the rate of speed which street cars in this part of the city might be operated under city ordinances was 15 miles per hour. When the street car and the automobile collided, the plaintiff was injured about the head and face. [1] At the trial the plaintiff claimed that the head injury, which appeared to be a depression near a suture of the head back of the right ear, would at some time in the future cause the plaintiff to have epilepsy, paralysis, convulsions, severe periodical pains, and general nervousness. Testimony of two physicians upon this subject was admitted over the objection of the defendant. The court denied the objection, and a motion of it, and a possibility of it. Q. There is a * And on cross-examination upon this question Dr. Nelson testified as follows: "Q. But when the child gets well, and is in apparently perfect health, bright, smart, and a clever little girl four or five years old, a year and a half or two years afterwards, that you to that brain? know, don't you, that no injury has happened A. Yes, sir; I know there is no injury happened to the brain so far. Q. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Yes; that is what I thought; and it is not your opinion is it, Doctor, that there ever will be any injury to the brain? A. Well, there possibly may be. Q. Yes; but you, as a doctor, would not say to this jury that is your opinion that there ever will be an injury to the brain? A. Well, I could not say that in my opinion that there would not be, either." It is apparent from the whole testimony of the doctors that neither of them intended to say that any serious results were reasonably certain to appear from this head injury. The rule is well settled by numerous decisions that future consequences which may presently be recovered for must be such consequences as are reasonably certain to ensue. The rule is well stated in Strohm v. N. Y., L. E. & W. R. R. Co., 96 N. Y. 305, where the court says: "Future consequences, which are reasonably to be expected to follow an injury, may be given in evidence for the purpose of enhancing the damages to be awarded. But, to entitle such apprehended consequences to be considered by the jury, they must be such as in the ordinary course of nature are reasonably certain to ensue. Consequences which are contingent, speculative, or merely possible, are not proper to be considered in ascertaining the damages. It is not enough that the injuries received may develop into more serious conditions than those which are visible at the time of the injury, nor even that they are likely to so develop. To entitle a plaintiff to recover present damages, for apprehended future consequences, there must be such a degree of probability of their occurring as amounts to a reasonable certainty that they will result from the original injury.' See, also, L'Herault v. Minneapolis, 69 Minn. 261, 72 N. W. 73; Tozer v. N. Y. C. & H. R. R. Co., 105 N. Y. 617, 11 N. E. 369; Briggs v. N. Y. C. & H. R. R. Co., 177 N. Y. 59, 69 N. E. 223, 101 Am. St. Rep. 718; Galveston, etc., R. Co. v. Powers, 101 Tex. 161, 105 S. W. 491; Brininstool v. Michigan, etc., Rys. Co., 157 Mich. 172, 121 N. W. 728; Gallamore v. Olympia, 34 Wash. 379, 75 Pac. 978. We are satisfied that this is the correct rule, and also that the conclusions of these two physicians were clearly speculative, and had reference only to possible consequences, and not to consequences that are reasonably certain to accrue. We are satisfied, therefore, that the court erred in refusing to strike this evidence from the record, and in permitting it to be considered by the jury. [2] In the course of the trial the court gave the following instruction: "If you find by a preponderance of the evidence that at the time and upon the occasion in question the defendant company was guilty of negligence in operating its car at the rate of speed you find from the evidence it was being operated at, in view of all the facts, circumstances, and conditions shown by the evidence in the case, whether running in excess of 15 miles per hour, or not; that is to say, if you find from the evidence that the defendant company, at the time and upon the occasion in question was operating its car at a greater rate of speed than an ordinarily careful and prudent person would have operated said car, having regard to the safety of life and limb of others in their enjoyment of the same street, under the same circumstances and conditions as shown by the evidence in this case, and that such negli gence, if any, on its part, was the proximate cause of the plaintiff's injuries, if any, as the term 'proximate cause' has been herein defined to you, then your verdict should be for the plaintiff. * The contention of the respondent was that the car was being operated at an excessive rate of speed. The city ordinances of Spokane permit cars in this vicinity to operate at a speed of 15 miles per hour. This instruction in effect tells the jury that they can find for the plaintiff, whether the car was running in excess of 15 miles per hour or not, if, under the circumstances in evidence, the jury found that the car was not being operated as a careful and prudent person would operate it. As an abstract proposition of law, this instruction might not be erroneous. But in this case it was conceded that the rate of speed of street cars in this vicinity was 15 miles per hour. The respondent attempted to show that the street car was running in excess of 15 miles per hour, while the appellant's witnesses estimated that it was running less than 15 miles per hour, and was stopped within its length after being run into by the automobile. The evidence fails to show that there were any unusual conditions at the time and place of this accident. The street car was running south on Monroe street. This is a paved street, 50 feet wide between the curbs, and upon it were laid two parallel street car tracks in the middle of the street. There street at that point, and no persons within were no persons upon the track or upon the view of the car, except one person, who was driving a horse and buggy some distance ahead of the car. There were two wagons in York avenue to the west of Monroe street, but these wagons were not visible to the aptoward Monroe street. proaching street car, and were not traveling The automobile in which the plaintiff was injured was traveling east on York avenue toward this crossing. Instead of going straight ahead, or turning to the right in order to avoid the street car, the driver of the automobile, thinking that he could not cross ahead of the street car, and instead of having his automobile under control, attempted to turn to the left, in violation of the city ordinance, and by reason thereof ran into the corner of the street car. If there had been persons upon the crossing, the instruction might have been pertinent to the case. But in view of the fact that the motorman upon the street car had apparently a clear way, and nothing to obstruct his progress, it is clear, we think, that he was authorized, under these conditions, to run within the limits fixed by the ordinance without being guilty of negligence. In Skinner v. Tacoma Ry. & Power Co., 46 Wash. 122, 89 Pac. 488, we said: "If the motorman sees a clear track, and has no occasion to stop, and no reason to anticipate danger to another, it would not be negligence to maintain the usual rate of speed, even over a crossing. But if he sees, or ought to see, persons or vehicles thereon, not able to get out of his way readily, it would certainly be negligence not to have such control of his car as to be able to stop before reaching such crossing. This case is one where there appeared to be no occasion for stopping at that time." Action by Gershom McFeron and wife against the Fidelity & Deposit Company of Maryland and Fred H. Shoemaker. ment for plaintiffs, and defendants appeal. Affirmed. Judg We think that rule is applicable to this case. It was therefore error to tell the Marion A. Butler, of Seattle, for appeljury that they might find for the plaintiff iflants. Samuel R. Stern, of Spokane, for rethe street car was running within 15 miles spondents. per hour. It was as much the duty of the automobile to keep out of the way of the FULLERTON, J. On July 27, 1911, the street car as it was for the street car to respondents, McFeron and wife, began an ackeep out of the way of the automobile. tion in the superior court of Spokane county For both these errors, the judgment is re- against the appellant Shoemaker to rescind versed, and the cause remanded. on the ground of fraud an executed contract wherein the respondents had been induced MORRIS, C. J., and HOLCOMB, PARKER, to convey certain real property owned by and CHADWICK, JJ., concur. MCFERON et ux v. FIDELITY & DEPOSIT CO. OF MARYLAND et al. (No. 12042.) (Supreme Court of Washington. April 29, 1915.) 1. APPEAL AND ERROR 1234-APPEAL BOND -LIABILITY OF SURETY. Plaintiffs, in an action to rescind for fraud their executed contract whereunder they had conveyed realty to defendant in exchange for personal property, recovered judgment for a rescission of the contract and for a redelivery of the shares of stock received by them on the exchange and that, when defendant should secure the release of his mortgage of the property, plaintiffs should therewith pay defendant the amount which defendant had paid on his notes, and that, if defendant failed to secure such release, the plaintiffs were to retain the amounts which they had received, and have judgment for the difference between such amount and the mortgage debt, and have execution therefor. surety company gave a supersedeas bond, and on appeal the judgment was affirmed, except in so far as it provided a personal judgment against defendant's wife, and remanded without any directed judgment against the surety, and the judgment was not complied with by any release of the mortgage or any payment of the amount adjudged due. Held, in view of the statute permitting joint appeals and that the Supreme Court may, on appeal, affirm, reverse, or modify, that although the bond referred to the appellants jointly, instead of jointly and severally, it was sufficient to secure plaintiffs in so much of the judgment as was awarded them. A [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4761-4777; Dec. Dig. 1234.] 2. APPEAL AND ERROR 1243 - LIABILITY ON APPEAL BOND-FINALITY OF JUDGMENT. Such judgment was final, rather than conditional, and after allowance of a reasonable time to make a choice execution might issue for the money judgment so as to fix the surety's liability; and the failure of the court to direct judgment against the surety on the supersedeas bond on remand was not itself a determination that the judgment was not final so as to prevent an action on the bond after the lapse of a reasonable time after remand. them to Shoemaker in exchange for certain personal property, consisting of money, promissory notes, and shares of stock in a wireless telephone and telegraph company. On the trial of the action it appeared that the grantees in the deed had, between the date of the conveyance and the commencement of the action, mortgaged the real property as security for the sum of $6,000. The respondents recovered in the action; the judgment providing for a rescission of the conveyance and for a redelivery of the consideration given in exchange therefor. The conditions of the rescission were expressed in the decree as follows: "(5) That the said plaintiffs shall surrender to the defendants the trustee's certificate No. 1672, representing ten thousand shares of the Company in lieu of the certificates theretofore Continental Wireless Telephone & Telegraph surrendered by the plaintiffs in the said Collins Company and also the unpaid Murphy notes, and when the said defendants shall secure a release of the mortgage given to the Northwestern & Pacific Hypotheekbank for the sum of six thousand dollars, that then the plaintiffs shall simultaneously therewith pay to the said defendants the sums of money which plaintiffs have received from said Fred H. Shoemaker, including the said sum of fifteen hundred dollars, paid by check, and the various sums paid upon the notes, less any protest fees, or charges of that kind, paid by the said plaintiffs, as shown by the notices attached to the said notes, amounting to $5.65. "(6) In the event that the said defendants fail to secure a release of said mortgage, then the plaintiff's may retain the amounts which they have received, and may have judgment for the between the amount of said mortgage indebtedsum of $1,865.65, representing the difference ness against the property herein described and the amounts received by the plaintiffs from all sources and on account of the exchange and protest fees paid and may have execution therefor." On the entry of the judgment the defendants in the action appealed therefrom to this court, giving a supersedeas bond with the appellant in the present action Fidelity & Deposit Company of Maryland as surety. The appeal resulted in a reversal of the judgment in so far as it provided for a personal judgment against the wife of Shoemaker, but in its affirmance in all other particulars. Mc [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4796; Dec. Dig. 1243.] Department 2. Appeal from Superior Feron v. Shoemaker, 73 Wash. 450, 131 Pac. Court, Spokane County; Bruce Blake, Judge. 1126. The court, however, remanded the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes While the appellant has made a number of assignments of error, but two questions are discussed in that part of its brief devoted to the argument. ties on the supersedeas bond before that time sonable time elapsed after the remand. case without directing a judgment in any which the judgment creditors had the liberty form against the surety on the supersedeas of choice, but it was clearly the final deterbond. On the return of the remittitur the mination of the rights of the parties to the judgment was modified in accordance with action. It set aside the conveyance as fraudthe direction of this court, and thereafter the ulent, provided a condition by which the dejudgment debtors complied with the judg- fendants could place themselves in statu quo, ment in so far as to reconvey to the respond- and, as an alternative, provided that judgents the real property received by them, but ment should go against them in a fixed sum, did not release or offer to release the mort- and that execution could issue therefor in gage thereon, nor did they pay to the re- case they did not comply with the condispondents, in lieu thereof, as they were re- tions. No time was fixed in the judgment, quired to do the judgment, the sum $1,865.65. it is true, within which the defendants were The present action was begun by the respond- required to make their choice, but a reasonents against the surety company to recover able time was implied, and after such reaon the supersedeas bond the last-mentioned sonable time execution could issue for the sum. Issue was joined on the complaint, and money judgment. But it is said that the rea trial had resulting in a judgment against fusal of this court to direct a judgment the surety company for the amount demanded against the surety on the supersedeas bond with interest. From this judgment the pres- on remanding the cause on the first appeal is, ent appeal is prosecuted. in effect, a determination that the judgment was not final, and prevents an action upon the bond. We cannot so consider it. Since the judgment debtors had a reasonable time after the affirmance of the judgment to exer[1] It is contended first that the appellant cise the option granted them, this court could was released from its obligation on the ap-not well direct a judgment against the surepeal bond because of the partial reversal by this court of the judgment which the bond was given to supersede. The contention is rested on the ground that the language of the bond is joint in form, that, while the bond is conditioned to bind the surety as to judgments and orders rendered or made, or ordered to be rendered or made, against the appellants jointly on the appeal, it is not conditioned to bind the surety to judgments or orders made, or directed to be made, against them severally. The case of Marsh v. Byrnes, 7 Wkly. Law Bul. (Ohio) 345, is cited as sustaining the contention. Seemingly, the case does so, but it was based on the case of Lang v. Pike, 27 Ohio St. 498, which we find was overruled in the later case of Alber v. Froehlich, 39 Ohio St. 245. But we could not ac-ery cept the contention as controlling in any event. Our statute permits of joint appeals, and further provides that the Supreme Court may on the appeal affirm, reverse, or modify the judgment appealed from as to any or all of the parties. It provides for but one form of bond, conditioned in but one way, whether the appeal be joint or several. Since the bond in question was given pursuant to this statute, and is conditioned as prescribed therein, it would be a perversion of its purpose and meaning to hold that, because the bond referred to the appellants jointly, instead of jointly and severally, it is insufficient to secure the respondents in so much of the judgment as was awarded in their favor. [2] The next contention is that the judgment is conditional, and cannot be enforced until it is reduced to a finality definite and Rev. St. § 2289 (U. S. Comp. St. 1913, § certain in its terms. But we think the judg-citizen of the United States to enter a quarter 4530), authorizing the head of a family and ment final, rather than conditional. True, it section or less of unappropriated public lands, contained optional conditions, concerning makes no provision for determining conflicting MOUNT, MAIN, PARKER, and ELLIS, JJ., concur. RIDPATH v. DENEE. (No. 12258.) 1. FORCIBLE ENTRY AND DETAINER 12 Rem. & Bal. Code, §§ 811, 825, making evperson who, in the nighttime or during the absence of the occupant of any real estate, enters thereon, and who, after demand for surrender thereof, refuses for three days to surrender, guilty of forcible detainer, and declarwho, for five days next preceding the unlawful ing that the occupant of real property is one entry, was in undisputed possession, and that, on the trial for forcible entry or detainer, plaintiff need only show, in addition to the for cible entry complained of, that he was peaceably in the actual possession at the time of the forcible entry, or in addition to a forcible detainer that he was entitled to possession at the time or right of possession, and defendant may not of the detainer, do not provide for trial of title prove paramount title or right of possession as a defense. [Ed. Note.-For other cases, see Forcible Entry and Detainer, Cent. Dig. §§ 57-63; Dec. Dig. 12.] 2. FORCIBLE ENTRY AND DETAINER 2 HOMESTEADS - ENTRY - STATUTORY PROVI SIONS. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes [Ed. Note.-For other cases, see Forcible Entry and Detainer, Cent. Dig. § 4; Dec. Dig. 2.] 3. PUBLIC LANDS 32-UNLAWFUL POSSESSION OF PUBLIC LANDS-STATUTORY PROVISIONS. Act Feb. 25, 1885, c. 149, 23 Stat. 321, § 1 (U. S. Comp. St. 1913, § 4997), making all inclosures of any public lands by any person having no claim or color of title unlawful, does not make inclosures of public lands unlawful, where made under claim of right or color of title, and one holding land surrounded by a fence, under a claim of right and color of title, may maintain forcible detainer, and defendant may not show that plaintiff is not a qualified homesteader. rights under claim of possession, but leaves the, ject to settlement under the homestead laws determination of such rights to the states to be of the United States; that on October 30, regulated by state statutes, and does not con- 1909, the defendant in good faith, for the flict with Rem. & Bal. Code, §§ 811, 825, authorizing actions for forcible detainer, without purpose of making a homestead entry theretrial of title or right of possession. on and acquiring title thereto, made settlement upon the lands in question, has never abandoned the same, and is residing on the lands in good faith under the homestead laws; that, at the time of making said settlement, he was over 21 years of age, a native-born citizen of the United States, not the proprietor of more than 160 acres of land in any state or territory, and had never made entry of public lands under the homestead laws of the United States, and was qualified to make settlement upon and entry of public lands and to acquire title thereto; that, at the time the defendant made settlement and established his residence upon the lands, the plaintiff was not in possession of any part thereof, and claimed no right therein; that the plaintiff is now wrongfully and unlawfully, and without any right so to do, attempting to prevent the defendant from maintaining his residence thereon, and acquiring title thereto; that the lands described in the complaint are part of a contiguous body of lands containing 1,200 acres, which has never been surveyed by the government of the United States, and has never been disposed of by the government of the United States, but is unsurveyed and unappropriated government lands belonging to the United States, and open for settlement. [Ed. Note. For other cases, see Public Lands, Cent. Dig. §§ 54-56; Dec. Dig. 32.] Department 2. Appeal from Superior Court, Spokane County; E. H. Sullivan, Judge. Action by W. M. Ridpath against Louis H. Denee. From a judgment for plaintiff, de fendant appeals. Affirmed. Skuse & Morrill and Voorhees & Canfield, all of Spokane, for appellant. Turner & Geraghty and D. W. Henley, all of Spokane, for respondent. MOUNT, J. This is an action in forcible detainer. The cause was tried to the court and a jury, and resulted in a verdict and judgment of restitution in favor of the plaintiff. The defendant has appealed. * [1] The plaintiff filed a motion to strike this affirmative defense, which motion was granted by the court. The appellant urges that the court erred in striking this affirmative defense, and in refusing to receive evidence of the facts therein stated. The statute (Rem. & Bal. Code, § 811) provides: "Every person is guilty of a forcible detainer who in the nighttime, or during the absence of the occupant of any real property (unlawfully) enters thereon, and who, after demand made for the surrender thereof, refuses for the period of three days to surrender the same to such former occupant. The occupant of real property within the meaning of this subdivision is one who, for the five days next preceding such unlawful entry, was in the peaceable and undisturbed possession of such real property." The principal facts under which the controversy arose are as follows: The plaintiff for more than 20 years prior to the 9th day of March, 1914, was in the peaceable and quiet possession of 75 acres of land in Spokane county. This land was under cultivation and was inclosed by a substantial fence. In the nighttime on March 9, 1914, the appellant, without permission of the plaintiff, broke the inclosure and entered upon the lands. On the next morning the plaintiff ordered the defendant to remove therefrom, which the defendant refused to do. Thereafter, on the 27th day of March, the plaintiff notified the appellant in writing to remove from the lands. The defendant also refused to comply with this notice for a period of more than three days, whereupon this action was brought. The complaint al-ably in the actual possession at the time of the leged substantially these facts. Section 825 provides: "On the trial of any proceeding for any forcible entry or forcible detainer, the plaintiff shall only be required to show, in addition to a forcible entry complained of, that he was peace forcible entry; or in addition to a forcible detainer complained of, that he was entitled to the possession at the time of the forcible detainer." The defendant, in answer to the complaint, denied the plaintiff's peaceable possession as alleged, admitted that defendant was occupy- These statutes are clearly peace statutes, ing the lands, that he was notified in writing and the issues in a case of this kind are but to remove therefrom, and that he had failed two: First, was the plaintiff, for five days and refused so to do. As an affirmative de- prior to the entry of the defendant, in the fense the defendant alleged, in substance, peaceable and actual possession of the land; that the lands in question were unsurveyed, and, second, was the entry of the defendant unappropriated public lands of the United a forcible entry and an unlawful detainer? States, and a part of the public domain, sub- The statute makes no provision for the trial For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |