no grounds for an inquiry into transactions | to recognize the claim as a preferred claim which appear otherwise regular and legiti- or to return the property, but allowed the mate. claim as a general creditor's claim. The [3] The question of the sufficiency of the appellant thereupon instituted a proceeding complaint, as against the respondent Monte- before the court, in which the receivership coma Investment Company, is of more diffi- was pending, to reverse the action of the reculty, but we think the court rightly deter- ceiver. On a trial of the issue presented, mined it also. The title acquired by the the court adjudged that the appellant was company to the property here in question is not a preferred creditor, and was not entinot deraigned through the mortgage of which tled to a return of the specific property, it is assignee. There was no foreclosure of which judgment this court afterwards afthe mortgage or sale thereunder. Its title is firmed. While it is true the appellant alleges deraigned through the insolvency or receiv- in its present complaint that only a part of ership proceedings, and it has such title as the issues were tried in that proceeding, that the receiver was competent to convey to it in it was stipulated between itself and the revirtue of those proceedings. That the pro-ceiver that they would first try out the quesceedings were regular is not questioned, nor tion whether or not it had complied with is it questioned that the receiver purported to sell an absolute title to the property; that is to say, title free and clear of liens of every kind. If, therefore, the receiver had power to make such a sale, it follows as of course that the purchaser acquired an absolute title. the statutes in filing its conditional sale contract, and, if that question should be determined against it, the parties would then try out the question as to which creditors, if any, became such with actual knowledge or notice of the title of the appellant to the property, and that this latter question was not subsequently tried out, we think the fact does not permit it to pursue the property in the hands of a purchaser at the receiver's sale. As we have shown, the property was not sold subject to its claim, nor under any right derived through the mortgage to the respondent Onn, but was sold after an adjudication that the appellant had no preference claim to the property. Since it selected the forum in which it would try the issue, and agreed upon the manner in which it would try it, it was obligated to pursue the remedy to the end. It cannot now be heard to say in another forum and in another cause of action, as against a purchaser at the receiver's sale, that all of the issues were not there determined. It is contended, however, that the receiver took no better title to the property than his insolvent, the Syverson Lumber & Shingle Company, had therein, and that its title was not absolute, but conditional only, and hence the receiver could not by a sale pass any thing more than the conditional title, leaving the property subject to be pursued by the appellant in the hands of the purchaser, as freely as if the purchaser had taken the property from the insolvent directly. The rule of law here invoked is unquestionably sound as a legal proposition (see Sumner Iron Works v. Wolten, 61 Wash. 689, 112 Pac. 1109; McGill v. Brown, 72 Wash. 514, 130 Pac. 1142; and Davis v. Foster, 29 Wash. 364, 69 Pac. 1102), but we think the rule inapplicable to the appellant's situation. In the cases cited the court was speaking of absolute outstanding titles-titles so far perfected as to be unassailable by creditors of the insolvent. Here the appellant did not have such a title. It failed to file its conditional sale contract in the proper office, and, because of such failure, the sale was absolute as to purchasers, incumbrancers, and subsequent creditors in good faith. Rem. & Bal. Code, § 3670. Here there were such creditors, and they were entitled to have the property sold as the property of the insolvent. Since it was so sold at public sale by the receiver, the respondent took such title 1. thereto as the receiver was empowered to give, which we think was title absolute. Our conclusion is that the judgment appealed from is without error and should be affirmed. It is so ordered. CROW, C. J., and MOUNT, PARKER, and MORRIS, JJ., concur. (82 Wash. 325) RITTER v. CITY OF SEATTLE. (No. 12195.) (Supreme Court of Washington. Nov. 17, 1914.) APPEAL AND ERROR (§ 979*)-NEW TRIAL (8 76*)-DISCRETION OF COURT-REVIEW. The granting of a new trial for excessive damages is within the discretion of the court, which will not be interfered with on appeal. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3871-3873, 3877; Dec. Dig. 8979;* New Trial, Cent. Dig. §§ 153156; Dec. Dig. § 76.*] [4] Moreover, we think the appellant is now estopped from asserting, as against a purchaser of the property at the receiver's sale, any claim against such property. The appellant presented its claim to the receiver as a preferred claim, asking in the alternative that, 2. NEW TRIAL (8 76*)-DISCRETION OF COURT if its claim be not thus allowed, it have a re- Remarks by the court in refusing a new turn of the property. The receiver refused trial for excessive damages that he disagreed *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes -EXCESSIVE DAMAGES. with the jury as to the amount, but he thought he ought not to usurp their province by setting it aside, are insufficient to show an abuse of discretion. [Ed. Note. For other cases, see New Trial, Cent. Dig. §§ 153-156; Dec. Dig. § 76.*] 3. TRIAL (8 68*)-RECEPTION OF EVIDENCE REOPENING CASE. An offer of evidence after both parties had rested, and after an adjournment, which did not show that the offered evidence was newly discovered or its introduction inadvertently overlooked, is properly refused. [Ed. Note. For other cases, see Trial, Cent. Dig. 88 158-163; Dec. Dig. § 68.*] 4. APPEAL AND ERROR (§ 548*)-RECORD MOTION FOR NEW TRIAL-AFFIDAVIT. Where no affidavit or evidence of any nature is brought to the appellate court, the ruling on a motion for new trial for newly discovered evidence, is not reviewable. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 2433-2440; Dec. Dig. § 548.*1 Department 1. Appeal from Superior Court, King County; Everett Smith, Judge. Action by Lina Ritter against the City of Seattle. From a judgment for plaintiff, defendant appeals. Affirmed. Jas. E. Bradford and Melvin S. Good, both of Seattle, for appellant. Blair & Blinn, for respondent. PARKER, J. This is an action to recover damages for personal injuries which the plaintiff claims resulted to her from the negligence of the city of Seattle. Verdict and judgment were rendered against the city, awarding the plaintiff $1,750 damages, from which the city has appealed. asked for more than she got, and the jury were careful in their deliberation before they rendered their verdict." That the granting or refusing of a new trial upon the ground here urged is a matter within the discretion of the trial court, with which discretion this court will not interfere except in cases of plain abuse thereof, is too well settled to require discussion at this time. Kohler v. Fairhaven, etc., Co., 8 Wash. 452, 36 Pac. 253, 681; Winningham v. Philbrick, 56 Wash. 38, 105 Pac. 144; Syl vester v. Olson, 63 Wash. 285, 115 Pac. 175; Brown v. Walla Walla, 76 Wash. 670, 675, 136 Pac. 1166; Bernard v. Yakima, 141 Pac. 1034. Counsel for the city concede this to be the law, but insist that the remarks of the trial judge above quoted show an abuse of discretion on his part, in that he refused to set aside the verdict and grant a new trial notwithstanding his expressed opinion that the verdict was excessive. This court has consistently adhered to the doctrine that a trial judge is not required to grant a new trial merely because he entertains a view differing from that of the jury as to what the verdict should be. Tacoma v. Tacoma Light & Water Co., 17 Wash. 458, 50 Pac. 55; Suell v. Jones, 49 Wash. 582, 96 Pac. 4; Kincaid v. Walla Walla Valley Traction Co., 57 Wash. 334, 106 Pac. 918, 135 Am. St. Rep. 982; In re Renton, 61 Wash. 330, 112 Pac. 348; Franey v. Seattle Taxicab Co., 141 Pac. 890. Counsel for the city insist that these remarks of the trial judge bring this case within the rule of the decisions of this court in Tacoma v. Tacoma Light & Water Co., 16 Wash. 288, 47 Pac. 738, Clark v. Great Northern Ry. Co., 37 Wash. 537, 79 Pac. 1108, 2 Ann. Cas. 760, Cranford v. O'Shea, 75 Wash. 33, 134 Pac. 486, and Brown v. Walla Walla, 76 Wash. 670, 136 Pac. 1166. The Tacoma Case was overruled upon rehearing (17 Wash. 458, 50 Pac. 55). The Clark Case does seem to contain observations of the court lending some support to the contentions of counsel for the city here made, but that case, as noticed in [1, 2] One of the grounds upon which counsel for the city rested their motion for new trial was "excessive damages appearing to have been given under the influence of passion and prejudice." The refusal of the trial court to grant a new trial upon this ground is the principal claim of error here relied upon by counsel for the city. Their argument in this behalf is rested entirely upon remarks of the trial judge made in disposing of the motion for new trial, expressing his opinion somewhat at variance with the conclusion of the jury as to the amount of dam-Re Renton, supra, dealt with remarks of the ages respondent should be awarded. The remarks of the trial judge, which we regard as most favorable to the theory of counsel's contentions, were as follows: "The court thinks the amount awarded by the jury was excessive, but that was for the jury to determine. It was in this case a question purely for the jury to determine how much they should award the plaintiff for her injuries, and they decided her injuries were worth $1,750. If it had been tried by the court the court would not have given any such verdict as that, although the court would have been obliged to give the woman a verdict. * And while in the main the court thinks the amount of the verdict is excessive-it is more than it should have been-the court thinks that under the ruling of the Supreme Court a matter like that is exclusively a matter for the jury; that the court would not interfere with it. *** I do not think it is for the court to take the place of the jury in determining the amount of the award that should be awarded to her. She trial judge which indicated that he made his ruling because of his belief that he lacked power to grant a new trial where the verdict was contrary to the weight of the evidence. Referring to the Clark Case and also to the Cranford and Brown Cases in Franey V. Seattle Taxicab Co., supra, we said: "Those were cases where the trial court thought a new trial should be granted, but that it had no power to grant a new trial. But we held otherwise, and said that the court should have exercised its judgment and granted a new trial; that it had authority so to do. The granting or refusing of a new trial, where there is conflicting evidence, is discretionary with the trial court. The mere fact that the judge's opinion differs from the opinion of the jury as expressed by the verdict does not necessarily require him to grant a new trial." Now, looking to the whole of the learned trial judge's remarks in this case, we do not think that they can be viewed as expressing an opinion on his part that he lacked power to grant a new trial upon the ground here urged. It is true he expressed the view that he did not agree with the jury on the question of the amount of the award to respondent. But that is not of itself sufficient to require him to grant a new trial. Besides, his closing remark that "the jury were careful in their deliberation before they rendered their verdict" plainly indicates that the trial judge did not believe that the amount of the award was "given under the influence of passion or prejudice," which is an element of this statutory cause for new trial. Rem. & Bal. Code, § 399, subd. 5. We conclude that the discretion to be exercised by the trial court in disposing of a motion for new trial upon this ground was not abused in this case. We may add that a review of the evidence as found in the abstracts leads us to the same conclusion, though counsel for the city do not argue that phase of the case. [3] Some contention is made that the trial court erred in refusing to open the case for further evidence after both parties had rested. The introduction of evidence was concluded, and both parties rested at the adjournment of court on Friday evening, when the cause was continued for argument and instructions to the jury, until the following Monday morning. At the opening of court on Monday, counsel for the city stated to the court: "I offer to prove that on the 20th day of March, or thereabouts, 1914, the home of the plaintiff herein burned, on account of a lamp explosion; and we offer this for the purpose of proving that it materially affects the nervous condition of this plaintiff at the present time." This offer was refused by the court. The record shows nothing else whatever in the way of a showing by counsel for the city then made, entitling him to the privilege asked. The court was clearly warranted in refusing the offer at that time, for want of a showing that the offered evidence was newly discovered or its introduction inadvertently overlooked before the city rested. We cannot say from the record before us that the court even abused its discretion in excluding the offered evidence on the grounds of its immateriality, should such be regarded as the court's only reason for its exclusion. [4] Some contention is made that the court erred in refusing to grant a new trial on the ground of newly discovered evidence; that being one of the grounds stated in the motion. No affidavit or evidence of any nature is brought here by bill of exception or statement of facts supporting the motion on this ground. The argument of counsel proceeds upon the theory that affidavits in support of this ground of the motion were filed, but they are not made of record in such manner as to show that the trial court ever saw them. Hence we cannot consider them. Congdon v. Aumiller, 79 Wash. 616, 140 Pac. 912. The judgment is affirmed. CROW, C. J., and GOSE and CHADWICK, JJ., concur. MORRIS, J. (concurring). As I view it, the verdict of a jury as to the amount of damages to be awarded in a given case is conclusive, unless the trial judge is of the opinion that the amount awarded is clearly contrary to the weight of the evidence, in which case it is his duty to set it aside. The trial judge does not so express himself in this case, but merely holds that, in his judgment, the verdict is excessive. Before a verdict case can be disturbed by us, the trial judge must go further and indicate his judgment that the verdict is not only excessive, but contrary to the weight of the evidence. Having failed so to do in this case, the verdict must stand. I therefore concur. (82 Wash. 268) REEVE v. NORTHERN PAC. RY. CO. (Supreme Court of Washington. Nov. 16, 1914.) Federal Employers' Liability Act, April 22. 1908, 35 Stat. 65, c. 149, § 1 (U. S. Comp. St. 1913, § 8657), provides that any carrier engaged in interstate commerce shall be liable to any employé injured by such carrier in such commerce, from negligence of any of the officers, agents, or employés. Held, that the word "negligence" was limited to negligence of officers, agents, or coemployés while in the performance of their duties, and such a carrier was not liable to an employé for injuries sustained by being pushed out of a baggage car door by two other fellow servants wrestling in the car. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 359-361, 363-368; Dec. Dig. § 180.* For other definitions, see Words and Phrases, First and Second Series, Negligence.] Department 2. Appeal from Pacific Railway Company. Geo. B. Cole and John Wesley Dolby, both of Seattle, for appellant. C. H. Winders, of Seattle, for respondent. FULLERTON, J. The appellant was in the employment of the respondent as a laborer, his specific duties being to assist in supplying the respondent's baggage, mail, and other cars with water and fuel, and to aid otherwise in fitting them for service on the respondent's railway. On the evening of June 23, 1911, the appellant and another employé of the respondent, after performing their duties with respect to certain cars, entered a baggage car of the respondent in which was a third employé. On entering the baggage car the appellant sat down on the floor in the door of the car, with his feet outside of the door resting on the iron steps. or stirrups which hung below the floor. For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes While so sitting the other employés began must not only arise out of, but it must also ocwrestling or scuffling in the body of the car, employé, instead of attending to the business of cur in the course of the employment. If the and while so engaged, whether intentionally the employer, at the time of the injury, was enso or not the evidence does not disclose, gaged upon some business of his own, or if the one of them brushed against, or pushed work done by him was outside the scope of his against, the appellant, causing him to fall employment, and as a result of the performance of such outside duties he was injured, then the to the ground below. In the fall the appel- employer is not responsible, for in the performlant received severe and lasting injuries, ance of such duties the relation of employer and fracturing the radius and ulna and dislo- employé did not exist, since he was not employed cating the wrist of his right arm. The re- to perform any such service. And not only is an employé himself precluded from recovering for spondent is a common carrier by railroad of an injury, where he had voluntarily abandoned interstate commerce, and it is conceded in the service of his employer and engaged himself the record that the respondent was employed upon some independent business, but his employby "such carrier in such commerce," within may occasion other employés while so engaged er is not responsible for any injury that he the meaning of the act of Congress of April upon such outside business, or to render the em22, 1908, commonly known as the Employ-ployer liable for injuries caused by his employés, ers' Liability Act. 35 Stat. 65, c. 149 (U. S. the act that caused the injury must have been 35 Stat. 65, c. 149 (U. S. done in the scope of the employé's duties for Comp. St. 1913, §§ 8657-8665). This action the employer. was instituted by the appellant under the provisions of the statute above cited to recover in damages for the injuries suffered. The cause was tried before the court sitting without a jury, and resulted in a judgment of dismissal. In this court the appellant relies upon the first section of the statute, which provides that any common carrier by railroad, while engaged in commerce between any of the several states, shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, resulting in whole or in part from negligence of any of the officers, agents, or employés of such carrier. He argues that the act of his coemployé in pushing him from the car door was an act of negligence within the contenplation of the statute cited, and, since the act resulted in his injury while he was in the carrier's employ, the carrier is liable to answer for the injury. Read literally, and without consideration of its object and purpose, the statute relied upon would seem broad enough to create liability on the part of the carrier under circumstances such as are here shown. But we cannot think it subject to such a literal construction. To those acquainted with the history of the law on the subject of actions for personal injuries, it is apparent that the primary purpose of the statute was to permit a recovery in that class of cases where the right would be otherwise defeated under the commonlaw doctrine of fellow servant. Its purpose was not to render the carrier liable in all instances, and under all circumstances, where one employé of a carrier is injured by the careless and negligent acts of another. It is not enough that the negligent act causing the injury occur during the existence of the employment, nor is it enough that it occur during the hours the employés are required to be on duty. To render the carrier liable the negligent act must occur while the employés are doing some act required in the prosecution of the carrier's business. "For the employer to be held liable, in damages, for an injury to an employé, the injury * *" White's Personal In juries on Railroads, § 227. It remains to inquire whether the injury here suffered by the appellant was the result of a negligent act of a fellow employé committed while he was in the prosecution of the employer's business. Clearly it was not, and is not so claimed by the appellant. The liability is rested on the broad wording of the statute, which, as we say, was not intended to cover negligent acts of an employé in no way connected with the business the prosecution of which he was employed to aid. The judgment is affirmed. CROW, C. J., and PARKER, MOUNT, and MORRIS, JJ., concur. 1. ACCORD AND SATISFACTION (§ 4*)-COMPROMISE AND SETTLEMENT (§ 13*)-FORM OF AGREEMENT-CONDITIONS. Defendant's manager offered $500 as a payment of the balance due on the account of plaintiff's assignor. The latter's representative accepted the money, agreeing to submit the matter to his principals, and wrote a receipt for the amount "on account." This defendant's manager. declined to accept, wanting a receipt in offered, with the addition, after the words "on full, but, this being declined, accepted the one account," "without prejudice," and subsequent letters between the parties showed that the matter had not been fully adjusted. Held insufficient to establish a claim of accord and satisfaction. [Ed. Note.-For other cases, see Accord and Satisfaction, Cent. Dig. §§ 32-39; Dec. Dig. 4;* Compromise and Settlement, Cent. Dig. 70; Dec. Dig. § 13.*] 2. LIMITATION OF ACTIONS (§ 46*)-OBLIGATION CREATION STARTING OF LIMITATIONS. Where defendant, in taking over a music business of another, agreed to take and sell certain pianos in the latter's possession belonging to plaintiff's assignor, and to pay for them when sold, defendant's obligation to pay did not arise so as to start the statute of limitations in motion as against its obligation to pay plaintiff's assignor, until the pianos were sold. [Ed. Note.-For other cases, see Limitation of Actions, Cent. Dig. §§ 240-253; Dec. Dig. § 46.*1 3. LIMITATION OF ACTIONS (§§ 182, 195, 197*) -PRESUMPTIONS. Courts will not indulge in any presumptions in favor of the statute of limitations, but the bar must clearly appear on the face of the complaint, or it must be clearly pleaded and proven by a preponderance of the evidence, before it will be sustained as a defense. [Ed. Note.-For other cases, see Limitation of Actions, Cent. Dig. §§ 676-680, 682, 695, 705, 711-716, 722-726; Dec. Dig. §§ 182, 195, 197.*] Department 2. Appeal from Superior Court, King County; Kenneth Mackintosh, Judge. Action by Frank A. Paul against Kohler & Chase, a corporation. Judgment for plaintiff, and defendant appeals. Affirmed. Leopold M. Stern, of Seattle (J. W. Russell, of Seattle, of counsel), for appellant. Hastings & Stedman and Frank A. Paul, all of Seattle, for respondent. FULLERTON, J. In 1904 Clough & Warren, doing business at Adrian, Mich., consigned to H. & H. Chesbro, at Seattle, Wash., a number of pianos to be sold on commission. The pianos were listed to the Chesbros at fixed prices, and the profit of the Chesbros was to be the difference between the list price of the pianos and the excess sum at which they should be severally sold. On November 19, 1904, H. & H. Chesbro sold their business to the appellant, Kohler & Chase, a corporation, having its principal place of business at San Francisco. At the time of the sale H. & H. Chesbro were indebted to Clough & Warren in the sum of $1,050, and had on hand some nine pianos, listed to them at the aggregate price of $1,654.30, of which no disposition had then been made. As a part of the purchase price of the business, Kohler & Chase agreed to pay the indebtedness to Clough & Warren, and to take over and account to that firm for the pianos belonging to it which were then in the hands of the Chesbros. It seems that Clough & Warren had been dealing on similar terms with a certain J. A. Harvey, who resided in and was doing business in the state of California, and whose business Kohler & Chase had likewise purchased. In this purchase, they also received certain pianos which Clough & Warren had consigned to Harvey to be sold on commission. Learning of the purchases, Clough & Warren wrote Kohler & Chase making inquiry concerning the consigned pianos, and, under date of December 5, 1904, received an answer containing the following: "We are in receipt of your favor of the 31st ult. making inquiries concerning J. A. Harvey's stock. You gave us a list of your pianos and prices with option to pay for them when sold or to pay less cash discount. We concluded to hold them on sale and pay for them when sold. * Regarding the Seattle stock will say that we will take that upon the same condition that we took the Harvey stock, otherwise we would want nothing to do with it. * * The reply to this letter does not appear in the record, although it is agreed that a reply was mailed and received, and was, in substance, an acceptance of the proposition. The pianos included in the purchase of the Harvey stock were afterwards settled for by the payment of a fixed sum, amounting to some 10 per cent. less than the list prices of the pianos. Differences subsequently arose between the parties as to the amount due on the pianos received in the Seattle purchase, and the claim was placed by Clough & Warren in the hands of a San Francisco attorney for collection. During the negotiations between the attorney's representative and Kohler & Chase, $500 was paid on the purchase price, and the following receipt given: On October 19, 1912, Clough & Warren assigned the account to the respondent, Frank A. Paul, who began the present action to recover the difference between the list price of the pianos and the amount acknowledged to have been paid thereon by the receipt above set forth. Kohler & Chase set up two affirmative defenses: First, an accord and satisfaction of the account; and, second, the statute of limitations of the state of California. The trial court allowed a recovery for the list price of the pianos, less the payment shown by the receipt. From the judgment entered Kohler & Chase appeal. [1] At the time of the payment of the money evidenced by the receipt the appellant's accounts were in a somewhat chaotic condition, owing to the fact that a great part of their account books had been destroyed by fire. H. S. Ripley was acting as the representative of the attorney holding the account, and he spent considerable time with the manager of the appellant, endeavoring to adjust the differences. The representative of the attorney was claiming the full amount of the list price of the pianos, while the appellant's manager was contending there was not so much due. Finally the manager offered $500 as a payment of the balance due on the account. The representative accepted the money, agreeing to submit the matter to his principals. The representative wrote the receipt above set forth leaving out the words "without prejudice." The manager declined to accept it as written, wanting a receipt in full. A compromise was then made by the insertion of the words quoted. It is this transaction that is thought to constitute an accord and satisfaction. But we agree with the trial court that it does not justify that conclusion. There was clearly no agreement on the part of Ripley to accept the sum paid as being in full for the *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 144 P.-5 |