only, or from the smoothness of the covering with the wet and mud upon it." The same was true in the case at bar. A test for determining whether such a walk as the one involved here is sufficient as a matter of law is well outlined in Cromarty v. Boston, 127 Mass. 329, 34 Am. Rep. 381, as follows: "If a walk is constructed of material so smooth and hard that travelers shod in the ordinary way are defeated or obstructed in their attempts to pass over it, by inability to get the hold upon it with their feet, which is necessary to their walking forward, or the want of which causes them to lose their balance and fall, such walk cannot be said, as matter of law, to be safe and convenient. And if in a sidewalk, the chief part of which is in proper condition for travel, a small part of the surface is constructed of material different from the remainder, and so smooth and slippery that a foot traveler, stepping suddenly upon it from the portion otherwise constructed, necessarily or probably slips and is likely to fall, it cannot be said, as matter of law, that such walk is not defective." Within the above test it was for the jury to say whether this sidewalk was defective or not. See, also, Lyon v. City of Logansport, 9 Ind. App. 21, 35 N. E. 128.

We think it was not error to deny the motion for nonsuit, and the motion for new. trial, on the ground of insufficiency of the evidence, was also properly denied.

The judgment is affirmed.

RUDKIN, CROW, MOUNT, and DUNBAR, JJ., concur.

(51 Wash. 119) ANUSTASAKAS et al. v. INTERNATIONAL CONTRACT CO.

(Supreme Court of Washington. Nov. 18, 1908.) 1. DISMISSAL AND NONSUit (§ 56*)—Grounds. Where, in an action by a widow and minor children for wrongful death, the complaint stated a cause of action in favor of the widow, the fact that the guardian ad litem for the minors was not properly appointed would not authorize a nonsuit.

[Ed. Note.-For other cases, see Dismissal and Nonsuit, Cent. Dig. §§ 124-128; Dec. Dig. § 56.*]

2. DEATH (§ 31*)-PERSONS ENTITLED TO SUE -NONRESIDENTS AND ALIENS,

Nonresident aliens have a right of action for damages for death by wrongful act or neglect under the statute.

[Ed. Note.-For other cases, see Death, Cent. Dig. § 37; Dec. Dig. § 31.*]

Appeal from Superior Court, King County; Mitchell Gilliam, Judge.

Action by Banagetas Anustasakas and others against the International Contract Company. From an order setting aside a nonsuit and granting a new trial, defendant appeals. Affirmed.

Roberts & Hulbert and Ballinger, Ronald, Battle & Tennant, for appellant. Edward Brady, for respondents.

RUDKIN, J. This action was instituted by the widow and minor children of G. K. Anustasakas, deceased, to recover damages for his death, caused, as is alleged, by the neglect of the defendant. At the close of the plaintiff's testimony the court granted a nonsuit, but afterwards set aside the nonsuit and granted a new trial. From the latter order this appeal is taken.

There is nothing in the record to indicate the particular grounds upon which either motion was granted, but in support of the nonsuit the appellant contends: (1) That the guardian ad litem for the minor respondents was not properly appointed; (2) that there was no proof of negligence on the part of the appellant; (3) that the deceased assumed the risk; (4) that the deceased was guilty of contributory negligence; and (5) that nonresident aliens have no right of action to recover damages for death by wrongful act or neglect under our statute. The fact that the guardian ad litem was not properly appointed for the minors, if such be the fact, would not authorize a nonsuit, as the complaint stated a cause of action in favor of the widow at least, unless her alienage would defeat a recovery, a question we will discuss later.

The next three questions may be considered together. It appears from the testimony that the deceased met his death while in the employ of the appellant, and that death resulted from injuries received from a cave-in, in a ditch in which he was working. In view of a retrial of the action we deem it unnecessary to discuss the facts further than to say that, under the testimony, the questions of negligence, contributory negligence, and assumption of risk were so clearly for the jury that we are constrained to believe that the nonsuit must have been granted on other grounds. Christianson V. Pacific Bridge Co., 27 Wash. 582, 68 Pac. 191, and cases there cited; Hilgar v. Walla Walla (Wash.) 97 Pac. 498.

The remaining question is, Can a nonresident alien maintain an action to recover damages for death by wrongful act or neglect under our statute? The courts of Pennsylvania, Wisconsin, and Indiana have decided this question in the negative. Deni v. Pa. Ry. Co., 181 Pa. 525, 37 Atl. 558, 59 Am. St. Rep. 676; Macmillan v. Spider Lake Sawmill & Lumber Co., 115 Wis. 332, 91 N. W. 979, 60 L. R. A. 589, 95 Am. St. Rep. 947; Cleveland, etc., Ry. Co. v. Osgood (Ind. App.) 70 N. E. 839. The federal courts sitting in Pennsylvania from necessity follow the decisions of the local courts. Zeiger v. Pa. R. R. Co. (C. C.) 151 Fed. 348, affirmed in 158 Fed. 809. 86 C. C. A. 69. In Brannigan v. Union Gold

Mining Co., 93 Fed. 164, the United States Circuit Court for Colorado followed the Pennsylvania decisions in construing the Colorado statute, and we are informed that the United States Circuit court for this state, in a case not reported, followed the Wisconsin decision in construing our statute. Woodard v. R. R. Co., 10 Ohio St. 121, Railway Co. v. Richards, 68 Tex. 375, 4 S. W. 627, Railroad v. McCormick, 71 Tex. 660, 9 S. W. 540, 1 L. R. A. 804, De Harn v. Ry. Co., 86 Tex. 68, 23 S. W. 381, and Ry. Co. v. Jackson, 89 Tex. 107, 33 S. W. 857, 31 L. R. A. 276, 59 Am. St. Rep. 28, cited by the appellant from the courts of Ohio and Texas, are not in point here, as they simply hold that the statutory right of action will not be enforced by the courts of another state. However, this rule is by no means universal. Stewart v. R. R. Co., 168 U. S. 445, 18 Sup. Ct. 105, 42 L. Ed. 537. On the other hand, the courts of Massachusetts, New York, Virginia, Illinois, Missouri, Georgia, Alabama, and Tennessee hold that alienage or nonresidence of the widow or minor children is no defense to actions of this kind. Mulhall v. Fallon, 176 Mass. 266, 57 N. E. 386, 54 L. R. A. 934, 79 Am. St. Rep. 309; Tanas v. Municipal Gas. Co., 88 App. Div. 251, 84 N. Y. Supp. 1053; Pocahontas Colleries Co. v. Rukas, 104 Va. 278, 51 S. E. 449; Kellyville Coal Co. v. Petraytis, 195 Ill. 215, 63 N. E. 94, 88 Am. St. Rep. 191; Philpott v. Mo. Pac. R. R. Co., 85 Mo. 164; Augusta R. R. Co. v. Glover, 92 Ga. 132, 18 S. E. 406; Luke v. Calhoun, 52 Ala. 115; Chesapeake, O. & S. W. R. R. v. Higgins, 85 Tenn. 620, 4 S. W. 47. In speaking of the Pennsylvania decisions, in Vetaloro v. Perkins (C. C.) 101 Fed. 393, Colt. J., said: "The decision of the court in both these cases rests largely upon the proposition that no case can be found in which Lord Campbell's act has been extended to nonresident aliens, and that the act has no extraterritorial force. This is hardly in accordance with the fact. A more correct statement, it seems to me, would be to say that the English courts have never questioned the right of a nonresident alien to maintain an action in the common-law courts under Lord Campbell's act." In Mulhall v. Fallon, supra, Holmes, C. J., said: "The question, then becomes one of construction, and of construction upon a point upon which it is probable that the Legislature never thought when they passed the act. In view of the decisions to which we have referred, we lay on one side as too absolute some expressions which are to be found in the English cases, and some of which are cited in Adam v. British & Foreign Steamship Co., 79 L. T. (N. S.) 31. Our different relation to our neighbors, politically and territorially, is a sufficient ground for a more liberal rule, at least as to inhabitants of the United States. One or two cases may be found where a general grant of a right of action

for wrongfully causing death has been held to confer no rights upon nonresident aliens. Deni v. Pennsylvania Railroad, 181 Pa. 525, 37 Atl. 558, 59 Am. St. Rep. 676; Brannigan v. Union Gold-Mining Co. (C. C.) 93 Fed. 164. But compare Knight v. West Jersey Railroad, 108 Pa. 250, 56 Am. Rep. 200. On the other hand, in several states the right of the nonresident to sue is treated as too clear to need extended argument. Philpott v. Missouri Pacific Railroad, 85 Mo. 164, 167. Chesapeake, Ohio & Southwestern Railroad v. Higgins, 85 Tenn. 620, 622, 4 S. W. 47; Augusta Railway v. Glover, 92 Ga. 132, 142, 143, 18 S. E. 406; Luke v. Calhoun County, 52 Ala. 115, 118, 120. Under the statute the ac tion for death without conscious suffering takes the place of an action that would have been brought by the employé himself if the harm had been less, and by his representative if it had been equally great, but the Ideath had been attended with pain. St. 1887, p. 900, c. 270, § 1, cl. 3. In the latter case there would be no exception to the right of recovery if the next of kin were nonresident aliens. It would be strange to read an exception into general words when the wrong is so nearly identical, and when the different provisions are part of one scheme. In all cases the statute has the interest of the employés in mind. It is on their account that an action is given to the widow or next of kin. Whether the action is to be brought by them or by the adininistrator, the sum to be recovered is to be assessed with reference to the degree of culpability of the employer or negligent per

son.

In other words, it is primarily a penalty for the protection of the life of a workman in this state. We cannot think that workmen were intended to be less protected if their mothers happen to live abroad, or less protected against sudden, than against lingering, death. In view of the very large amount of foreign labor employed in this state, we cannot believe that so large an exception was silently left to be read in. Whether, if the statute were of a different kind, we could make a distinction between a mother living just across the boundary line between Massachusetts and Rhode Island and one living in Ireland need not be considered now."

The plea of alienage is not favored in law, and we are of opinion that the rule which permits nonresident aliens to maintain ac tions of this kind is supported by the weight of authority, and is more in harmony with the liberal cosmopolitan spirit of the age than the narrow provincial rule which would close our courts to widows and orphans solely because they happen to be nonresident aliens.

The order is therefore affirmed.

HADLEY, C. J., and FULLERTON, CROW, MOUNT, and DUNBAR, JJ., concur.

A contract by a city for sinking wells stipulated that the contractor should endeavor to increase the supply of water to at least 1,500,000 gallons per day, and that, when he shall be successful in obtaining a supply of water equal to 1,500,000 gallons per day, then the balance of the amount due for 800,000 gallons, and the amount due for the remaining 700,000 gallons for the period of 14 months, shall be paid when tests are made and work accepted. Held that, where a test by the city showed that the contractor had obtained a supply equal to 1,500,000 gallons per day, he was entitled to payment without waiting until the expiration of 14 months.

[Ed. Note.-For other cases, see Contracts, Dec. Dig. § 214.*]

Appeal from Superior Court, King County; Arthur E. Griffin, Judge.

Action by L. S. Green against the City of Ballard, a municipal corporation (now city of Seattle). From a judgment for plaintiff, defendant appeals. Affirmed.

Scott Calhoun and H. D. Hughes, for appellant. Jay C. Allen, for respondent.

RUDKIN, J. This action was instituted to recover the contract prior for sinking a well under the following agreement entered into between the plaintiff and the defendant city: "This contract made on this 12th day of February, 1906, between the city of Ballard, a municipal corporation of the state of Washington, party of the first part. and L. S. Green of the city of Seattle, party of the second part, Witnesseth: That for and in consideration of the promise and stipulations hereinafter made, and in consideration of the payments hereinafter specified, it is agreed between the parties hereto : (1) The party of the second part promises and agrees with the party of the first part to sink wells at such places upon the public streets or alleys of the party of the first part as the party of the second part may select, and pipe the water obtained from such wells underground to a point at or near the present pumping station of the party of the first part, and to conduct all such wells to a main suction pipe, and lead the water supply to a pit at or near said pumping station, so that said wells when completed and properly pumped will furnish one million five hundred thousand (1,500,000) gallons of water per day of twenty-four hours, the water to be of a quality similar to that of the water now obtained from the artesian well of the Ballard Lumber Company in the city of Ballard, and similar to that of the good wells of the city of Ballard. The party of the second part agrees that the wells so to be sunk by him will furnish a supply of water of such quality equal to eight hundred thousand gallons per day of twenty-four

hours at said point when properly pumped within ninety (90) days from the date of this contract; the ninety (90) days to be ninety (90) full working days, and not to include any holidays, or days when the weather or elements are such as not to permit the party of the second part to work, or any delays on account of strikes. All the materials, casing and piping used in the drilling and piping of said wells is to be furnished by the party of the second part at his own expense. Said work and said materials to be in all respects in accordance with the specifications now on file in the office of the clerk of the city of Ballard, which are hereby referred to and made a part of this contract. (2) The party of the second part shall have the right, in piping the said water from said wells to the point above referred to, to go along and upon any street or alley of the said city of Ballard, and shall lay said pipe or pipes along said street or alleys, and underneath or below the surface thereof. (3) The party of the first part is to furnish to party of the second part, free of charge, all water necessary to be used by him in doing said work. (4) The party of the second part guarantees water of the quality similar to that furnished by the artesian well of the Ballard Lumber Company, and of the good wells of the city of Ballard. (5) Should the said party of the second part be successful in sinking or drilling wells, which will furnish, when properly pumped, one million five hundred thousand (1,500,000) gallons of water, of the quality above referred to, per day of twenty-four hours, as proved by test, party of the first part agrees to pay him therefor at the rate of two cents (2c.) per one hundred (100) cubic feet for all the water which said wells are capable of furnishing, for a period of fourteen (14) months (not exceeding one million five hundred thousand [1,500,000] gallons per day). Should, however, the party of the second part succeed in obtaining a supply of at least eight hundred thousand (800,000) gallons of water of such quality per day of twenty-four hours only from the said wells, when properly pumped, within a period of ninety (90) days, from the date of this contract, said days to be computed as above set forth, then the party of the first part is to pay the party of the second part therefor, immediately after test and acceptance of work by the city council has been made, a sum equal to seventy-five per cent. (75%) of the amount due for eight hundred thousand (800,000) gallons as proved by test, for a period of fourteen months (14), figured at the rate of two cents (2c.) per one hundred cubic feet. The party of the second part is to proceed with said work, however, in an endeavor to increase said supply to at least one million five hundred thousand (1,500,000) gallons of water per day of twenty-four (24) hours, and when he shall

be successful in obtaining a supply of water of such quality equal to one million five hundred thousand (1,500,000) gallons per day of twenty-four (24) hours, then the balance of the contract price, to wit, the balance of the amount due for said eight hundred thousand (800,000) gallons, and the amount due for the remaining seven hundred thousand (700,000) gallons for the period of fourteen (14) months, at the rate of two (2c.) cents per one hundred cubic feet, shall be paid to the party of the second part, or to his order when tests are made and work accepted by the city council. (6) The party of the first part agrees to, and it shall provide and maintain a fund, to be known as the 'Water Extension Fund,' into which there shall be paid forty per cent. (40%) of the gross revenue received by the party of the first part from sales of water, and water rentals, and shall keep said fund intact and irreducible, until the warrants or bonds hereinafter referred to are fully paid and discharged. (7) The payment for the work aforesaid shall be made to the party of the second part in warrants or bonds, drawn by the party of the first part, payable to the order of the party of the second part, on and out of the said 'Water Extension Fund,' to be so provided and maintained as hereinbefore agreed, said warrant or bond shall draw interest from their date until paid at the rate of eight per cent. (8%) per annum. (8) The party of the second part is to furnish the party of the first part a good and sufficient bond, with two or more sureties, or with a surety company as surety, in the penal sum of seven thousand five hundred ($7,500.00) dollars, conditioned that the party of the second part shall pay all claims for damages growing out of the doing of said work, or because thereof, all laborers, mechanics and subcontractors and materialmen, and all persons who shall supply such person or persons, or subcontractors with the provisions and supplies for carrying out said work. (9) Should the wells to be sunk by the party of the second part under this contract fail, when properly pumped, to furnish a supply of at least eight hundred thousand (800,000) gallons of water per day of twenty-four (24) hours, of the quality hereinbefore mentioned, within ninety (90) days from the date of this contract, said ninety (90) days to be computed as hereinbefore mentioned, the party of the second part is to receive no compensation, and should the wells fail to produce the remaining seven hundred thousand (700,000) gallons when properly pumped, according to the same conditions, the party of the second part is to receive no compensation for said seven hundred thousand (700,000) gallons, and forfeit the twenty-five per cent. (25%) of payment due for said eight hundred thousand gallons (800,000)." The court below found the issues in favor of the plaintiff, and gave judgment for the full contract price for sinking a well with a daily capacity of 1,500,000 gal

lons, less certain offsets not deemed material here. From this judgment, the defendant has appealed.

The case turns largely upon the construction of the above contract, and the effect to be given a certain test made by the appellant, or under its supervision. It is admitted that the respondent sank a well with a daily capacity of 800,000 gallons, and that he has been paid the full contract price therefor. The respondent contends that the well had the further capacity of 1,500,000 gallons per day, but this claim is denied by the appellant. The well was completed to its present capacity some time prior to the 25th day of May, 1906, and on that day the city council of the appellant city adopted the following resolution: "In regard to the testing of the well, it was moved and carried that two special police be appointed by the mayor to remain at the well alternating for a period of six days and nights to see that the pump runs at the same speed at all times, day and night, and that the water be measured each hour of the 24 and a record kept, the test beginning this, Friday, morning, and continuing until Wednesday night of next week. The mayor appointed Matt Locke, and Michael Nelson as such special police." The test provided for commenced on the date specified in the resolution, but after a run of about four days the engine broke down, and the test was abandoned until a larger engine could be installed. After the old engine was replaced by a new or different one, the six days' test was resumed and completed, under the supervision of two special officers appointed by the mayor. The officers thus appointed reported the result of the test to the city council of the appellant city, and under date of June 26, 1906, the following entry appears in the minutes of that body: "Report of Matt Locke and Antone Anderson on the test of the new city well showing an average for the six days test of one minute and 25% seconds for filling the tank holding Ordered placed on file." It was admitted at the trial that the tank referred to in the foregoing report had a capacity of 1,472 gallons, and the report shows therefore that the daily capacity of the well exceeded the 1,500,000 gallons called for by the contract. The appellant earnestly insists that it contracted for a water supply of 1,500,000 gallons per day for a period of 14 months, and that the proof shows that no such supply was furnished for that period. We agree with counsel' that the city contracted for the supply agreed upon for the period of 14 months, and also that the proof fails to show that such supply was in fact furnished for that period. This would preclude a recovery on the part of the respondent, unless the contract itself provides how the capacity of the well shall be ascertained, and such capacity was ascertained in the manner thus provided.

We are constrained to hold that the con

tract does contain such a provision. A portion of paragraph 5 reads as follows: "The party of the second part is to proceed with said work, however, in an endeavor to increase said supply to at least one million five hundred thousand (1,500,000) gallons of water per day of twenty-four (24) hours, and when he shall be successful in obtaining a supply of water of such quality equal to one million five-hundred thousand (1,500,000) gallons per day of twenty-four (24) hours then the balance of the contract price, to wit, the balance of the amount due for said eight hundred thousand (800,000) gallons, and the amount due for the remaining seven hundred thousand (700,000) gallons for the period of fourteen (14) months, at the rate of two (2c.) cents per one hundred cubic feet, shall be paid to the party of the second part, or to his order when tests are made and work accepted by the city council." This provision shows clearly that the capacity of the well for the entire period covered by the contract was to be ascertained by test, and that the contractor was to be paid in full for his work long before the expiration of the 14 months. In other words, it was agreed between the parties that the capacity of the well for all the purposes of the contract should be ascertained by test as soon as the respondent was successful in obtaining a supply of water equal to 1,500,000 gallons per day of 24 hours, and that he should be entitled to the balance due under the contract at that time. We are aware that under this construction of the contract the appellant took chances on the supply holding out for the full period of 14 months, but in our opinion no other construction will give full effect to all the provisions of the contract which are somewhat conflicting. It follows from what we have said that the test made by the appellant established the capacity of the well within the meaning of the contract, and that test entitled the respondent to the full compensation provided for in the contract.

Such having been the conclusion of the court below, its judgment is affirmed.

city in a daily paper printed and published in the city.

[Ed. Note. For other cases, see Newspapers, Dec. Dig. § 3.*

For other definitions, see Words and Phrases, vol. 2, p. 1811.]

Appeal from Superior Court, Whatcom, County; John A. Kellogg, Judge.

Suit by the Fairhaven Publishing Company against the City of Bellingham and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Rose & Craven, for appellant. Thomas L. McFadden and Hardin & Hurlbut, for respondents.

PER CURIAM.

The city charter of the city of Bellingham provides that the city council shall annually let all the legal advertising to the lowest and best responsible bidder, who shall give bonds to the city in such sum as may be fixed and approved by the city council, conditioned that he will publish all such legal advertising in a paper named in the bid, which paper, it may be conceded for the purpose of this case, is required to be a daily paper printed and published in the city of Bellingham. Pursuant to this provision of the charter, the city advertised for bids for doing the legal advertising of the city for the year 1908. Two bid were received in response to the notice-the one from the appellant, who is proprietor and publisher of the Bellingham Herald, a newspaper printed and published in the city of Bellingham six days in each week; the other from the American Printing Company, which is publisher and proprietor of the Morning Reveille, a newspaper printed and published in the city of Bellingham five days in each week, that is, every day except Sunday and Monday. The city council found the bid of the latter company the lowest and best, and proceeded to let the contract for the printing to that company. The appellant thereupon brought this action to restrain the council from so doing. Judgment went against them in the lower court, and this appeal is prosecuted therefrom.

The only question we are required to notice is whether the Morning Reveille is a "daily paper" within the meaning of that term as it is used in the city charter. We think it is. The term "daily," as applied to the publication of newspapers, is relative. It has never been given the exclusive meaning of every day of the week, month, or year; but papers published every day except Sunday, or every day except Monday, or every day except both Sunday and Monday, are regarded by the general public as daily papers. This court, in Puget Sound Pub. Co. v. Times Printing Co., 33 Wash. 551, 74 Pac. 802, held that a paper published every day except Sunday and legal holidays was a daily

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