ing on its face a great depreciation in market value.

[Ed. Note. For other cases, see Fraud, Cent. Dig. § 76.]

3. CRIMINAL LAW 1134(6) THEORY BELOW.

APPEALWhere a prosecution for false advertising was tried below on the theory that the statement of the former value of the property for sale referred to market value, the state is properly confined to that contention on appeal.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 2991.]

4. FRAUD 69-OFFENSES FALSE ADVERTISING INFORMATION-Proof.

Where an information charging the offense of false advertising purported to set forth the effect of the advertisement, the state is confined to the effect of the advertisement as set forth; the advertisement itself not being printed. [Ed. Note.-For other cases, see Fraud, Cent. Dig. § 78.]

5. CRIMINAL LAW 970(7)-DEFECTS IN INDICTMENT-MOTION IN ARREST.

In support of the charge the state introducA complaint charging the offense of false advertising denounced by Rem. Code 1915, ged in evidence the following advertisement, 2622-1, which failed to allege that the repre- which appellant admitted he had caused to be sentation as to the former market value of the published: property offered for sale was not substantially correct, being insufficient to charge an offense, may be attacked by a motion in arrest of judgment.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 2454.]

Department 2. Appeal from Superior Court, Walla Walla County; Edward C. Mills, Judge.

J. J. Massey was convicted in justice's court of false advertising, and from a judgment of conviction on appeal to the superior court, he appeals. Reversed, with directions to dismiss.

Herbert C. Bryson, of Walla Walla, and E. L. McDougal, of Portland, Or., for appellant. Earl W. Benson, of Walla Walla, for the State.

east.

"Preopening Sale of Used Pianos. "These pianos must be closed out to make room for carload of new pianos coming from the Every piano fully guaranteed two years exchange privilege; unheard of easy terms. All look like new. Smith & Barnes, oak case, was tiful case, was $375.00; now $167.00. $400.00; now $200.00. Schilling & Sons, beauBrinkerhoff, art case, was $400.00; now $218.00. Free delivery and stool. J. J. Massey.

[1] It will be seen that the only statement or assertion alleged to have been false and deceptive is:

"Said J. J. Massey thereby represented to the public that a used Smith & Barnes oak case piano and a Schilling & Son piano were theretofore of the market value of $400 and $375, respectively, when in truth and in fact said pianos never were of the market value of $400 and $375, respectively."

At the threshold we are confronted with

WEBSTER, J. Appellant in the justice court for Walla Walla precinct, in Walla the question of whether the advertisement Walla county, was convicted of the offense contains this statement. The publication of false advertising, and appealed to the su- does not in terms refer to the "market value" perior court. From a judgment of conviction of the pianos mentioned, and it seems clear in the latter court this appeal is prosecuted. to us that the language used will not bear the The complaint reads as follows: meaning sought to be ascribed to it. The "Earl W. Benson, being duly sworn, on oath plain and common sense meaning of the adsays: That at Walla Walla city, in said Walla vertisement as we read it is that the retail Walla county, on or about 13th day of February, selling prices of the pianos formerly were 1916, J. J. Massey did commit the crime of $400 and $375, but at the time of the publicafalse advertising as follows: The said J. J. Massey, then and there being, did willfully tion those prices had been reduced or marked and unlawfully and feloniously cause to be down to $200 and $167. The statements remade, published, circulated, and placed before ferred to the retail selling prices of the pianos, the public in the county of Walla Walla, state and not to their market values. If the comof Washington, in the Walla Walla Union, a newspaper published in Walla Walla, Wash., plaint had alleged that appellant had puban advertisement regarding merchandise offer- lished an advertisement in which he asserted ed for sale to the public, which advertisement that the retail selling prices of the pianos did then and there contain assertions, repre- referred to formerly were $400 and $375, but sentations, and statements of fact which were then and there untrue, deceptive, and mis- that those prices had been reduced to $200 leading, to wit in this: Said J. J. Massey and $167, and the pianos were offered for thereby represented to the public that a used sale to the public at the latter prices, when Smith & Barnes oak case piano and a Schill

ing & Son piano were theretofore of the mar-in truth and in fact the retail selling prices ket value of $400 and $375, respectively, when of the pianos never had been $400 and $375,

nor approximately those amounts, an entirely [2. NEGLIGENCE 15 CONCURRING NEGLIdifferent question would be presented.

We conclude that the judgment must be 8. NEGLIGENCE 59 "PROXIMATE CAUSE." reversed, with direction to dismiss.

MORRIS, MOUNT, PARKER, and FUL-ject must be so obvious as to be necessarily anLERTON, JJ., concur..

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

Geo. McKay and Henry S. Noon, both of Seattle, for appellant. James B. Murphy and Robert C. Saunders, both of Seattle, for respondent.

ELLIS, C. J. This is an appeal from a judgment dismissing an action for personal injuries.

sel for defendant moved upon that statement that the jury be discharged and that judgment be entered for defendant. Granting the motion, the court said:

"I want the record to show that on the complaint and from the statement that you [Mr. Judd. plaintiff's then counsel] made it is impossible to state a cause of action which would sustain a judgment."

The action was dismissed "with prejudice to the commencement of any other action." Plaintiff appealed.

In support of the court's action, it is urged that, under the facts pleaded and stated by counsel, Corkum's negligence was, as a matter of law, the proximate cause of the injury, while that of respondent's driver was a mere condition. The most usual definition of "proximate cause" found in the books is either the following or some of its paraphrases:

Stewart street in the city of Seattle runs east and west. Seventh avenue runs north and south, crossing Stewart street at right angles. In the complaint it is alleged that, while plaintiff was crossing Seventh avenue on the south side of Stewart street exercising care and caution for his own safety, defendant J. B. Corkum carelessly, negligently, unlawfully, and in willful violation of the city ordinances drove his automobile east along Stewart street at an excessive speed without sounding any horn or whistle or giving other warning, and carelessly and negligently "The proximate cause of an event must be struck and injured plaintiff. It is further al-understood to be that which, in a natural and leged that at the time of the accident an auto dependent cause, produces that event, and withcontinuous sequence, unbroken by any new, indelivery truck of defendant Supply Laundry out which that event would not have occurred." Company, driven by one of its servants, run- 1 Shearman & Redfield. Negligence (6th Ed.) ning west on Stewart street at an unlawful § 26; Cooley on Torts (3d El.) p. 124. and dangerous rate of speed in violation of the city ordinances, at the intersection of the two streets mentioned, turned south onto Seventh avenue going diagonally across the street making a rapid, short, sharp, unlawful turn in violation of the city ordinances, intersected the path of the Corkum automobile so that Corkum was compelled to turn suddenly south on Seventh avenue to avoid a collision with the delivery truck, and thereby struck plaintiff, and that the negligence of defendant Supply Laundry Company, through its agent and servant, "accentuated the negligence of said Corkum and directly contributed to and caused the injury to the plaintiff."

The substance of counsel's opening statement was as follows: That plaintiff's evidence would show that he was going west on the south side of Stewart street; that when he reached Seventh avenue the Corkum automobile was going east on the south side of Stewart street, and the laundry truck was going west on the north side of Stewart street; that when he started across Seventh avenue the laundry truck made a sudden turn to the south going to the east, the left and wrong side of the center of the street intersection cutting the corner, and taking the east, the wrong side, of the avenue; that in executing this movement, in violation of the law and city ordinances, the truck made a line for the other automobile; and that Corkum in an effort to escape a collision put on his brakes, turned quickly to the south, and in so doing struck plaintiff. It is admitted that since the commencement of the action Corkum has died, and thereafter the cause was prosecuted against the Supply Laundry Company alone.

[1, 2] There may be more than one proximate cause for the same injury. The negligence of different persons, though otherwise independent, may concur in producing the same injury. In such a case, all are liable. They may be held either jointly or severally. The negligence of one is no excuse for that of another.

"If the damage has resulted directly from concurrent wrongful acts or neglects of two persons, each of these acts may be counted on as the wrongful cause, and the parties held responsible, either jointly or severally, for the inthat when an injury is the result of the combinjury. It is well settled by the adjudged cases ed negligence of the defendant and the negligent or wrongful act of a third person, for whose act neither the plaintiff nor the defendant is responsible, the defendant is liable, when the injury would not have happened except for his negligence. Thus, if two persons wrongfully block up a street, so that one is injured in attempting to pass them, neither of the culpable parties can excuse himself by showing the wrong of the other, for the injury is a natural and proximate result of his own act under the would be to deny all remedy in the case of plain then existing circumstances, and to excuse either and palpable injury." Cooley on Torts (3d Ed.) pp. 119, 120, 121, 122, and 123.

See, also, Shearman & Redfield, Negligence (6th Ed.) § 31.

[3, 4] The question of proximate cause is a mixed question of law and fact. It is usually a question for the jury. It is only where the facts are undisputed, and the inferences to be drawn from them are pla) and incapable of reasonable doubt or dirence of opinion, that it may become a question of law for the court. Cooley on Torts (3d Ed.) p. 111; 1 Shearman & Redfield, Negligence (6th Ed.) § 55.

[5, 6] In considering the application of these principles to the case here presented, we must, of course, assume as true all of the

least made no effort to avoid. It is true also that, had the emergency been created solely by Corkum's own prior negligence, the injury inflicted in his efforts to extricate his car would be attributed solely to that prior negligence. Here, however, the emergency was not wholly nor even chiefly one of his own creation.. Had the cars collided, there would be grave doubt whether on the facts here either owner would have been permitted to recover for the resultant injury. But such is not the case before us. Here an innocent third party was injured.

far as they are contradicted or modified by | ference how the emergency arose, if the inthe opening statement of appellant's counsel.jured person was not culpable. The emerIn drawing the complaint it seems plain that gent act cannot become negligence in law the pleader was attempting to state the full merely to relieve another concurrent wrongfacts as a cause of action for concurrent neg-doer from a liability for injury which he at ligence on the part of both Corkum and respondent here. He was seeking a recovery against both. But Corkum having died, counsel, in his statement outlining the evidence which he would offer, laid little stress upon the alleged negligence of Corkum, but dwelt mainly and at length on the facts which would tend to show negligence on the part of respondent's driver as a proximate or efficient cause of the injury. The only negligence charged against Corkum either in the complaint or statement was that of excessive speed and the failure to sound a horn or whistle. He was on the side of the street proper for vehicles going in an easterly direction. From the whole complaint the inference is clear that, but for the excessive speed and the sudden rapid and unlawfully premature deviation in the course of respondent's ear carrying it to the wrong side of the center of the street intersection and to the wrong side of Seventh avenue, Corkum would have passed plaintiff safely, notwithstanding his own excessive speed and failure to give warning of his approach. But it is urged that Corkum's act in turning to the south, instead of to the north, was an independent act of negligence breaking the chain of causation, isolating respondent's negligence, and making it a mere condition. It is true, as pointed out by respondent, that it was not alleged in terms that Corkum could not have turned his car to the north; but it was so alleged inferentially, and appellant is entitled to the benefit of every favorable inference. It was alleged that he "was compelled to turn suddenly to the south" to avoid a collision with respondent's car. That car was coming rapidly from the north, and it was at least inferred that a turn in that direction would have enhanced the danger of the collision which Corkum alone was trying to avoid. He was acting in a sudden emergency, and what in such a case is reasonably prudent conduct is always a question for the jury, unless it can be said that the minds of reasonable men cannot differ thereon. Appellant argues, and we think soundly, that this phase of the case is controlled by the rule announced in Scott v. Shepherd (the squibb case) 2 Wm. Blackstone $92, and also in Gibbons v. Pepper, 1 Ld. Raymond, 38; Jones v. Boyce, 1 Starkie 493; and Lowery v. Manhattan Ry. Co., 99 N. Y. 158, 1 N. E. 608, 52 Am. Rep. 12. In those cases, it is true, the person whose act in the emergency resulted in the injury had not been guilty of antecedent negligence; but we fail to perceive any reasonable differentiating significance in that fact. If the act by reason of the emergency is not itself negligent as a matter of law, it can make no possible dif

[7, 8] Respondent further argues that the accident would not have happened had Corkum stopped his car, or had he been running at a lawful rate of speed. This may be conceded. But it is equally true that, notwithstanding his failure to stop, and notwithstanding his excessive speed, no accident would have happened had respondent's truck been stopped, or had it been running at a lawful rate of speed, or had it even kept to the right side of the intersection and the right side of the street. Respondent further asserts that its driver, though himself negligent, was not bound to anticipate Corkum's negligence. This also may be conceded. But neither was Corkum bound to anticipate respondent's negligence. These things might be material if the question were one between the two negligent parties. They are immaterial so far as the injury to plaintiff, a third person wholly free from fault, is concerned. Every argument advanced as showing that respondent's negligence was a mere condition and not the proximate cause applies with equal force to Corkum's negligence. Appellant should not be permitted to fall between two stools through a mere juggling of terms. It seems to us plain that the complaint stated a cause of action for concurrent negligence, and that the statement of anticipated proof made a case for the jury. Upon the facts pleaded and stated, it would be for the jury to say, under proper instructions, whether the negligence of Corkum or that of respondent was the proximate cause, or whether both were proximate and concurrent causes. This court, in common with some others, has said that "any injury which could not have been foreseen or reasonably anticipated as the probable result of an act of negligence is not actionable," in that the act is too remote to be a proximate cause. Ottevaere v. Spokane, 89 Wash. 681, 683, 155 Pac. 146. But that language must not be taken in an absolute sense. It does not mean that the probability of injury must be so obvious as to be necessarily anticipated by the wrongdoer, nor does it mean that he must have reasonably anticipated that injury would probably re

sult to the exact person or in the exact form or way in which it did result. 1 Shearman & Redfield, Negligence (6th Ed.) §§ 28, 29, and 29a. We know of no more exact expression of the true rule than that of the Supreme Court of Minnesota, quoted with apparent approval by Cooley:

4. MUNICIPAL CORPORATIONS 488, 489(8) —
PUBLIC IMPROVEMENTS-ASSESSMENT-FAIL-
URE TO MAKE OBJECTIONS AT CONFIRMA-
TION.

Failure of property holders to object, either at the hearing on the initiatory resolution or at the hearing upon the assessment roll, that marginal or adjacent property is assessed too low, waives such objection.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1151, 1152.]

508(6)

"The law is that if the act is one which the party ought, in the exercise of ordinary care, to have anticipated was liable to result in injury to others, then he is liable for any injury proxi-5. MUNICIPAL CORPORATIONS mately resulting from it, although he could not PUBLIC IMPROVEMENTS - ASSESSMENT — REhave anticipated the particular injury which VIEW BY COURT--EVIDENCE-SUFFICIENCY. did happen. Consequences which follow in un- It being objected that the authorized probroken sequence, without an intervening efficient portion of the cost was not in fact levied upon cause, from the original negligent act, are natu- the marginal property by the assessing officer, ral and proximate; and for such consequences the testimony alone of the city engineer that the original wrongdoer is responsible, even the roll as returned might not check out such though he could not have foreseen the particu- proportion, but would come close to it, was lar results which did follow." Christianson v. too indefinite to justify overturning the Chicago, St. P., M. & O. Ry. Co., 67 Minn. 94, sessment roll, even if it were grounds for so 97. 69 N. W. 641; Cooley on Torts (3d Ed.) p. doing that there was a failure in this respect. 138.

We shall not consume space by a review of the many cases cited by respondent. Every case largely depends upon its particular facts. As we view the cases cited, they are not controlling.

We are clear that the facts pleaded and stated, which we must assume to be true, made a case for the jury upon every question presented.

as

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1181.]

6. MUNICIPAL CORPORATIONS 438-PUBLIC IMPROVEMENTS SPECIAL BENEFITS.

Where an improvement, consisting mainly of a bridge across a park ravine, opened another highway over which the business section of the city could be reached from the property of certain objectors, and opened up a new and convenient way to the state university, it was of special benefit to such property.

[Ed. Note.-For other cases, see Municipal

The judgment is reversed, and the cause is Corporations, Cent. Dig. § 1052.] remanded for further proceedings.

MORRIS, MOUNT, MAIN, and CHADWICK, JJ., concur.

(95 Wash. 5)

In re TWENTIETH AVE, NORTHEAST. CITY OF SEATTLE v. JONES et al. (No. 13379.) (Supreme Court of Washington. Feb. 17, 1917.) 1. MUNICIPAL CORPORATIONS 508(6)—PUB-| LIC IMPROVEMENTS CONFIRMATION OF ASSESSMENT BY COUNCIL-CONCLUSIVENESS.

Upon review of confirmation of an assess ment roll by ordinance, the rule forbidding courts to inquire into the motive impelling the passage of an ordinance regular upon its face applies to preclude inquiry into reasons assigned by individual members of the council for their action, which it is claimed indicate that their action as a body was arbitrary or proceeded upon a fundamentally wrong basis.

[Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. § 1181.]

2. MUNICIPAL CORPORATIONS 493(1)-PUBLIC IMPROVEMENTS CONFIRMATION OF ASSESSMENT BY COUNCIL.

Confirmation of an assessment roll must be by ordinance.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1091-1093, 1160.] 3. MUNICIPAL CORPORATIONS 487-PUBLIC IMPROVEMENTS - ASSESSMENT WHO MAY COMPLAIN. A property holder in an assessment district cannot complain of an erroneous method of assessing other property in the district where his own assessment is neither increased nor diminished thereby.

7. MUNICIPAL CORPORATIONS

508(6)-PUB

LIC IMPROVEMENTS-REVIEW OF ASSESSMENT
-SCOPE.

The courts are loath to interfere with the judgment of the authorities empowered to make the assessment on the question of whether property assessed is specially benefited.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1181.]

Department 1. Appeal from Superior Court, King County; J. Stanley Webster, Judge.

In the matter of an assessment for the improvement of Twentieth Avenue Northeast, comprising Local Improvement District No. 2626, under Ordinance No. 30734, by grading and bridging in the City of Seattle. From an order confirming the roll by the city council, L. J. Jones and other property holders appealed to the superior court, where the roll was again confirmed, and said property holders appeal. Affirmed.

Bell & McNeil, of Seattle, for appellants. Hugh M. Caldwell and Howard A. Hanson, both of Seattle, for respondent.

FULLERTON, J. On December 9, 1912, the city council of the city of Seattle by resolution declared its intention to improve a certain described portion of Twentieth Avenue Northeast in that city by grading and curbing the same, providing for the necessary surface drainage, and by the construction of the necessary bridges. To meet the cost and expense of the improvement

[Ed. Note.-For other cases, see Municipal the resolution provided for the creation of Corporations, Cent. Dig. § 1146.] an enlarged district. The district was spe