(No. 16918.) (119 Wash. 347) (Supreme Court of Washington. March 28, 1922.) Municipal corporations 706 (5) Evidence held to show automobile collision due to defendant's negligence. which the appellant had possession and over which he had control, and the presumption | ROMANO v. W. S. DULMAGE MOTOR CO. naturally and legally arises that he had possession and control of the things contained therein. The presumption is of course rebuttable, and undoubtedly was rebutted if the account given of the presence of the liquor in the house is to be taken as true. But, manifestly, it was for the jury, not the court, to say whether or not the account was true. So, with the quantity. It was not so utterly deficient in that respect as to be negligible, and it was for the jury to say whether it was sufficient to be available for unlawful use. The instruction complained of is the following: In action for damages from collision between plaintiff's automobile and defendant's at street intersection, evidence held to show negligence of driver of defendant's car in failing to give right of way to plaintiff's car which was approaching the intersection on his right. Department 1. "I instruct you that when the husband and wife are living together as such, the possession of one spouse is the possession of the oth-ty; D. F. Wright, Judge. Appeal from Superior Court, King Coun er where it affirmatively appears beyond a rea- Action by Sylvia M. Romano against the sonable doubt from the evidence that said pos- W. S. Dulmage Motor Company. From judgsession of one spouse was with the knowledgement for plaintiff, defendant appeals. of the other, and such possession was had on firmed. premises occupied by both husband and wife." [3] As applied to the facts shown in the record, we find the instruction without error. The husband is the head of the family, and as such has the general right to regulate the household, and to exercise the general control of the family management. He has the right to prevent his wife from using their common residence for an illegal business or purpose. If he knowingly permits her to use it for the illegal purpose of keeping intoxicating liquors therein he becomes a participator in the act, and is liable to the penalties the law inflicts for unlawful possession. The rule rests, not on a presumption of coercion of the wife by the husband, but on the principle that the husband has the right to control his household, and is responsible for the illegal acts which he knowingly permits to take place therein. The rule is stated in 2 Cyc. 1354, in the following language: "The husband is liable for his wife's criminal acts committed by his bidding, or in his Af Roberts & Skeel, N. A. Pearson, and Ray MITCHELL, J. The automobile collision out of which this action arose occurred at the intersection of John street and Tenth avenue in Seattle. The streets cross at right angles, John Street running east and west. The plaintiff driving her car traveled west on John street, while the defendant's car driven by an employee traveled north en Tenth avenue. Each drove near the curb on the right-hand side of the street traveled. In their pleadings each charged that the accident was due to the negligence of the other. The case was tried without a jury, and the defendant has appealed from findings and judgment in the sum of $550. It was found by the trial court that the driver of appellant's car was negligent in several respects and that his negligence was the cause of the accident. The findings are presence and under his coercion. Likewise supported by a preponderance of the eviwhere she, in his presence and with his knowl-dence. Respondent's testimony, in which she edge, commits an act not malum in se, he may was corroborated, was that she was travelbe found guilty, as where, with the husband's knowledge or consent, the wife sells intoxicating 10 to 12 miles an hour, and further as ing liquors contrary to statute. If such sales follows: are made by her in his house, even in his absence, and even contrary to his wishes, he may be held guilty, since it is his duty to control or prevent the same." See, also, Commonwealth v. Barry, 115 Mass. 146; State v. Rozum, 8 N. D. 548, 80 N. W. 477; People v. Sybisloo, 216 Mich. 1, 184 N. W. 410. The judgment is affirmed. "Q. Compared to your speed, he was going much faster? A. Yes, sir; he was going very much faster than I was." The evidence shows that the collision occurred in a thickly settled portion of the city. John street is 24 feet wide between the curbs with parking strips and sidewalks on each side, 21 feet wide. On approaching the intersection the respondent looked south by a building on the southeast corner of the that direction, she then looked north, and BRIDGES, MITCHELL, and TOLMAN, intersection, and, seeing no car coming from JJ., concur. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (205 P.) in a moment of time the cars collided; that of the appellant being driven at a high rate of speed. Appellant's driver, voluble if not reckless in his testimony, testified that upon approaching the intersection of the streets when he was at a point about 10 feet south of John street he noticed respondent's car approaching from the east, on his right. He first said that at that time her car was from 80 to 100 feet from the intersection, at another time he said it was from 40 to 50 feet from the intersection, and at still another time he admitted she was about 30 to 35 feet east of the intersection. He testified, and it is not controverted, that he drove near the curb on the right-hand side of Tenth avenue, and that after he saw the approaching car, traveling so as to cross his way, he neither slackened his speed nor changed his course. The fact that he traveled faster, or even if he traveled only as fast as the other car, which was running on the north side of John street, and the further fact that the cars collided before changing their courses, deprives him of the slightest opportunity to successfully deny that the two cars were simultaneously approaching the crossing. of dismissal with prejudice will bar the further prosecution of either action. Department 2. Appeal from Superior Court, Pierce County; Ernest M. Card, Judge. Action by Mary Vasicsko, as administratrix, against Mike Kundrak and wife. From a judgment dismissing the action, plaintiff appeals. Affirmed. H. W. Lueders, of Tacoma, for appellant. MAIN, J. By this action the plaintiff, as administratrix of the estate of Michael Vasicsko, deceased, seeks to recover the sum of $600 and interest thereon. When the action came on for trial, upon motion of the defendants it was dismissed, because the questions here at issue had been determined in another action with which this one had been consolidated. From the judgment of dismissal the appeal is prosecuted. On or about the 21st of June, 1918, the defendants here, Mike Kundrak and wife, brought an action against Mary Vasicsko in her individual capacity for the purpose of quieting title to a certain Section 46 of the Traffic Code of the City five-acre tract of land in Pierce county, and of Seattle provides: "Drivers when approaching street intersections shall look out for and give right of way to vehicles on their right, simultaneously approaching a given point, provided, however, that street cars shall have the right of way at all times at such intersections." Had the law been obeyed the collision would not have happened. No conclusion can be reached upon the record in this case other than that the violation of the ordinance by the driver of appellant's car was the cause of the accident. Affirmed. PARKER, C. J., and TOLMAN, BRIDGES, and FULLERTON, JJ., concur. (119 Wash. 215) for possession thereof. This complaint was answered by admissions and denials and an affirmative defense, in which the defendant alleged, among other things, that she had been regularly appointed the administratrix of the estate of Mary Vasicsko, deceased, and asserted equitable title to the property and prayed for conveyance either to her as administratrix or to her and her minor children. There was also a prayer for an accounting. On or about December 12, 1918. the present action was begun by Mary Vasicsko as administratrix of the estate of her deceased husband seeking to recover as above stated an alleged balance due the es| tate of $600 and interest. On June 10, 1919, upon motion being made, the court entered an order consolidating the two actions. On the 14th day of June, 1919, an order was entered reciting that the issues in the consolidated action had been settled out of court and that the action be, and was thereby, dismissed with prejudice. After this order of March 18, dismissal was entered the administratrix, in the action brought by her for the $600 claimed to be due and unpaid, sought to bring that action on for trial, and upon motion of the defendants it was dismissed, on the ground that all matters and things involved in the action had been determined and disposed of when the order of dismissal was entered in the consolidated action. The controlling question in the case is whether the dismissal in the consolidated action bars the right of the appellant to further prosecute the present action after it had been consol VASICSKO v. KUNDRAK et ux. (Supreme Court of Washington. 1. Appeal and error 548 (I)-Affidavit not considered in absence of statement of facts or bill of exceptions. Where the record contains no statement of facts nor bill of exceptions, affidavits sent up with the transcript cannot be considered. 2. Judgment 570(6)—Judgment of dismiss. al of consolidated action bars further prosecution of either. Where two actions were consolidated, and the issues settled out of court, a judgment For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes idated with another action and the judgment | paid by the state auditor out of the permaof dismissal entered. [1, 2] No statement of facts or bill of exceptions has been brought to this court. There are in the clerk's transcript certain affidavits, but it has been many times held that such affidavits cannot be considered unless they are brought here by a bill of exceptions or a statement of facts. Taking the record made in the trial court of the two actions, and considering them as one after the order of consolidation was entered, there can be no question but that the judgment of dismissal in the consolidated action would prevent the further prosecution of either of the actions. After the two actions were consolidated they would be considered as one, and all the issues involved in each of the ac nent highway fund. The allegation of their complaint is that they were required to deliver 2,547 cubic yards of crushed rock, being 472 cubic yards more than was called for by the contract. The trial court found: "That no strict and accurate measurement of all crushed rock was kept by the plaintiffs using the proper gauge therefor at the bunkers; that said plaintiffs were not called upon nor did they actually furnish 472 cubic yards, extra of crushed rock for such highway or any crushed rock which they were not required to furnish under said contract; that they did not which they have not been paid under the terms furnish any crushed rock for said highway for of said contract." Our conclusion from the testimony is that tions would be determined by the judgment it confirms this finding. The appellants of dismissal. In one action the administratrix was defendant in her individual capacity; in the other she was plaintiff in her capacity as administratrix. The judgment will be affirmed. PARKER, C. J., and HOLCOMB, MACKINTOSH, and HOVEY, JJ., concur. (119 Wash. 698) STATE ex rel. WILSON et al. v. LINDLEY Mandamus failed to introduce suflicient evidence substantiating their claim, and, not sustaining the burden of proof the law imposed upon them, they are not entitled to the relief they seek. Affirmed. (119 Wash. 232) JOHN B. STEVENS & CO. v. PRATT et al. (No.16982.) (Supreme Court of Washington. March 18, 1922.) Landlord and tenant 195(1)—Tenant may abandon without liability premises becoming unfit, lessor breaching covenant to repair. Where the leased premises became unfit 168(2)-Burden on applicant to for the purpose intended, and the lessor breaches his covenant to repair, the lessee may abandon the premises without liability for rent. establish claim. When it is sought by mandamus to compel the approval of a bill for extra material furnished for the construction of a highway, the burden is upon relator to establish the validity of his claim. Department 2. Appeal from Superior Court, Columbia County; Chester F. Miller, Judge. Department 1. Appeal from Superior Court, Pierce County; Ernest M. Card, Judge. Action by John B. Stevens & Co. against C. A. Pratt and others. Judgment for defendants, and plaintiff appeals. Affirmed. E. D. Hodge, of Tacoma, for appellant. Application for mandamus by the State, on the relation of H. L. Wilson and W. R. O'Rourke, doing business as Wilson & O'MITCHELL, J. John B. Stevens & Co., a Rourke, against E. L. Lindley and others, County Commissioners of Columbia County with C. A. Pratt let "all of the two north corporation, the owner, by a written contract From a judgment for defendants relators ap-sections of those certain warehouses, docks peal. Affirmed. W. G. Coleman and John C. Hurspool, both of Walla Walla, for appellants. A. F. Appleton, of Dayton, for respondents. PER CURIAM. The appellants sought by mandamus to compel the county commissioners of Columbia county to approve a bill for extra work performed by them in the construction of a certain portion of the Inland Empire Highway, in order that it might be and wharves located on lots 105-110 in the N. P. Ry. Co.'s plat A of Tacoma tidelands, Tacoma, Washington," for a period of three years commencing on January 15, 1920. It was stated in the lease that the premises were let "for general warehouse and dockage purposes." Among other things the lease provided: "The lessor further covenants that it will keep the premises in its present state of repair, or as may be required by federal, state and mu For other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes (205 P.) nicipal authorities, as against reasonable wear, [ises according to his obligation, but it is a usage and damage by the elements." case in which a tenant is defending against a claim for rent for a period of time occurring after he has been compelled to vacate And also: "The lessee herein accepts the said premises the premises because of their unsafe and above mentioned with full knowledge of their present location, state of repair and surroundings." unfit condition occasioned by the failure of the landlord to comply with his obligation to repair. It is to be deduced with reasonable certain The lease was almost immediately assigned ty from the authorities that, when the magto a copartnership, with the knowledge and nitude of the violation of the covenant to consent of the lessor, who thereafter receiv-repair on the part of the landlord reaches ed from the occupants the monthly rentals provided for in the lease. the point where the premises are no longer fit for the purposes intended, such conduct Pursuant to written notice theretofore giv- on the part of the landlord operates to impair en, and claiming that the premises had be- the consideration for the lease, and also come unsafe and unfit to be used for dock to breach the implied covenant for the quiet purposes, notwithstanding oral and written enjoyment of the premises, and has the redemands for needed repairs, the tenants aban-sultant effect of releasing the tenant from doned the premises on April 14, 1921, and this action was brought to recover the rent due for the month commencing April 15, 1921. The trial without a jury resulted in favor of the tenant, from which the lessor has appealed. any further liability to pay rent, provided he abandons the premises to the lessor. Such is the right and reason of the matter. Indeed, bearing in mind the fact that the appellant did covenant to make repairs, it is argued, and authorities are cited on behalf of the appellant, that: "Failure of the appellant to keep the premises in repair would not entitle the respondent to vacate the premises and declare the lease void unless the premises were thereby rendered so untenantable as to amount to a constructive eviction, the remedy of respondents being a claim for damages for breach of covenant or to make the repairs and charge the same against the rent." The trial court found that the lessor failed, neglected, and refused to keep the docks, wharves, and warehouses in the state of repair required by the lease, failed to keep them in the state of repair required by the municipal authorities, and permitted the docks, wharves, and warehouses to deteriorate to such an extent that they became unsafe for use for dockage and warehouse purposes, and became dangerous and unsafe for workmen using the same. It was further found that steamboat companies and perOne of the authorities cited by the appelsons owning and operating vessels landing atlant, 16 R. C. L. p. 692, § 178, states the the wharves refused to longer allow them to land there, and refused to do business with the respondents because of the unsafe condition of the wharves; that the respondents on February 21, 1921, notified the appellant of the unsafe and defective condition of the premises, and requested that they be suitably repaired, but that appellant failed and refused to make any repairs, and by reason thereof respondents were compelled to, and did, vacate the premises. The record makes it pretty clear that the defense asserted and covered by the findings has been established by a preponderance of the evidence. The case is not one where a tenant remains in possession and seeks to avoid the rule as follows: "Where, however, a landlord has covenanted or is under obligation to repair, and by reason of his failure to do so the premises have become untenantable, this may, it seems, according to the better rule in this country, constitute a constructive eviction justifying the tenant in abandoning the premises." A number of cases are furnished in support of the text, including Ann. Cas. 1916B, p. 124, which has an extensive note and list of cases on the subject. This case, falling within the rule, was, in our opinion, correctly decided by the trial court. Affirmed. payment of rent or any part of it because PARKER, C. J., and BRIDGES, FULLED the landlord has failed to uphold the prem-TON, and TOLMAN, JJ., concur. ! complained of, held error to submit the issue (119 Wash. 700) Appeal and error 1012(I)-Findings of fact Where the record on appeal presents only a question of fact determined adversely to appellant, the decision will be affirmed; the evidence not preponderating against the conclusion of the trial judge. Department 2. Appeal from Superior Court, Spokane County; Joseph B. Lindsley, Judge. Action by the Norris Safe & Lock Company against the Farmers' & Merchants Bank. Judgment for plaintiff, and defendant appeals. Affirmed. E. Eugene Davis and B. C. Mosby, both of Spokane, for appellant. W. W. Clark, of Spokane, for respondent. PER CURIAM. This was an action to recover the value of a safe door, which was defended on the ground that the purchase by the appellant was induced by the respondent's fraudulent misrepresentations. The record presents only a question of fact, which was determined by the trial court adversely to the appellant, which decision we aflirm for the reason that the evidence does not preponderate against the conclusion of the trial judge. (119 Wash. 270) ESTES et al. v. BABCOCK et al. 4. Evidence 555-Physician's testimony as to patient's statement of injuries upon which opinion is based admissible. Testimony by a physician as to statements made by an injured person upon which he based his opinion concerning her condition was admissible as an aid in determining the weight to be given to the opinion, but not as evidence tending to prove her actual condition at the time. Department 1. Appeal from Superior Court, King County; John S. Jurey, Judge. Action by Gertrude Estes and another against Frank W. Babcock and others. From a judgment for plaintiffs, defendants appeal. Reversed and remanded. Carkeek, McDonald, Harris & Coryell, T. Hartson, and Frank S. Griffith, all of Stanley J. Paddon, Walter F. Meier, Nelson Seattle, for appellants. Ryan & Desmond, of Seattle, for respondents. TOLMAN, J. On October 31, 1919, respondents were passengers in a free automobile bus operated by appellants Babcock and Ryan, on their way from the Union Station to the Hotel Arlington in the city of Seattle. The hotel is, or was, situated on the west side of First avenue, about 80 feet south of its intersection with University street. The bus on which respondents were riding, in order to reach the hotel, proceeded northerly up the east side of First avenue, past the hotel, and, when the proper point in the street intersection was reached, the driver started to make the turn across the double line of street car tracks occupying the center (Supreme Court of Washington. March 23, of First avenue, so as to continue his course 1922.) 1. Appeal and error 1002-Where evidence is conflicting, the questions are for jury. In an action for personal injuries, where the evidence as to excessive speed and the giving of warning signals was conflicting, a verdict for plaintiff will not be disturbed on appeal. 2. Municipal corporations 111(1) — Ordinance forbidding careless operation of vehicles, held not invalid for uncertainty. An ordinance providing that no person shall drive or operate any vehicle other than in a careful and prudent manner, so as not to collide with or strike against any other object, held not invalid as being uncertain. 3. Trial 252(20) Submission of issue of mental anguish, not sustained by evidence, held error. In an action for personal injuries, where there was nothing to show that plaintiff suffered mental anguish on account of the injury | to the hotel entrance. When the turn had been well towards the south, though still on the partially completed, and the bus was headed westerly car track, a street car approaching from the north struck the rear of the bus, the force of the impact throwing Mrs. Estes from her seat, and causing the injuries of which she complains. The action was tried to a jury, which found a verdict against all of the defendants for $3,000, and from a judgment on the verdict they have appealed. The complaint charges negligence on the part of appellants Babcock and Ryan in the following particulars: (1) that the bus was driven at an excessive and unlawful rate of speed; (2) that the attempt to turn the bus was made between street intersections instead of at an intersection (but no evidence was offered in support of this allegation); (3) that the driver failed to sound a warning signal before attempting to turn; and (4) that he so operated the bus as to cause For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |