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ceptance of the rent should not waive or im George L, Palmer and Beechler & Batchpair the right to proceed for the possession elor, all of Seattle, for appellant. 0. L. Wil. of the premises under the notices to vacate, lett, Frank Oleson, and John A. Soule, all was alleged. This presented an issue which of Seattle, for respondent. was properly by the court submitted to the jury.

MOUNT, J. Plaintiff brought this action to Some question is raised as to the instruc- recover damages for personal injuries. He tions, but we find no error in this regard. alleged in substance, that the defendant negThe issues which the jury were to determine ligently ran him down with an automobile were specifically and pointedly stated. The on the public highway and injured him. Deinstructions were as favorable to the cause fendant, for answer, denied any negligence, of the appellants as the law would justify. and alleged contributory negligence of the The judgment will be affirmed.

plaintiff. The cause was tried to the court

without a jury. At the conclusion of the ELLIS, C. J., and PARKER, WEBSTER, evidence the court made findings in favor of and FULLERTON, JJ., concur.

the plaintiff, and awarded him damages in the sum of $1,000 and costs. The defendant

has appealed. (99 Wash. 483)

It appears that on the night of July 4, DEITCHLER v. BALL. (No. 14164.)

1916, at about 9 o'clock, the respondent was (Supreme Court of Washington. Jan. 16, 1918.) returning to the city of Seattle from the north 1. WITNESSES em 252 - DIAGRAM-ILLUSTRA- in an automobile upon a public paved highTION OF EVIDENCE.

A diagram not claimed to be accurate, used way. The pavement was about 16 feet in by a witness to illustrate his evidence of the po

width. When respondent came to within 3 sition of automobiles where an accident happen- or 4 miles of Seattle, the rain began to fall, ed, was competent.

and he turned out to the side of the road 2. WITNESSES (ww264-ORDER OF EVIDENCE- preparatory to putting up the top to his car. RECALLING WITNESS.

It was not an abuse of discretion to allow He drew up behind another automobile which witnesses to testify as to causes of an auto- was already stopped for the same purpose. mobile collision and later recall them to testify Another automobile following drew up beas to the extent of injuries; order of testimony hind the respondent. These three cars were being within the discretion of the court.

headed in the same direction-toward Seat3. HIGHWAYS Om173(2)—USE-CONTRIBUTOBY NEGLIGENCE.

tle. They were on the right-hand side of the One stopping his car to the right of the road road, with two wheels on the pavement and to put up his top is not negligent in working two off. About this time another car, coming as close as possible to the car without looking from toward Seattle, drew up on the opposite around to look for approaching cars. 4. HIGHWAYS 173(2) AUTOMOBILES

side of the road, also for the purpose of putSKIDDING-SPEED-NEGLIGENCE.

ting up the top to the car. As soon as the reWhere defendant driving a car on a rainy spondent stopped, he proceeded to put up the night along a road with a 16-foot pavement ap; top to his car, standing at the front of his proached four cars on different sides of the road with all lights burning, putting up tops, and car, on the right-hand side of the paved road drove down on them at 12 miles per hour, and and next to his car, arranging the front on passing through a 10-foot space put on his part of the top. While he was doing this, brakes and the car skidded injuring plaintiff, working near bis car, he was guilty of negli- the appellant's car struck him on the legs, gence.

knocked him against the front fender of his 5. New TRIAL Ow104(2)-NEWLY DISCOVERED car, and injured him. EVIDENCE-CUMULATIVE EVIDENCE.

At the trial of the case the appellant conIn an action for damages for being run into tended that he stopped his car upon apby defendant's car, where defendant claimed that his car was struck by another car and proaching, just before he came to the reforced upon plaintiff, affidavits of two eyewit- spondent's car, and while in that position nesses that another car was the cause of the in- another car came up from behind, struck his jury was cumulative, and not grounds for a new trial as newly discovered evidence.

car, and shunted it against the respondent. 6. DAMAGES Cm131(2)→PERSONAL INJURIES- Appellant makes several assignments of erTEMPORARY INJURIES-LEGS.

Where plaintiff, not having remunerative [1] First, it is claimed that the trial court employment, received temporary injuries to his erred in receiving in evidence a diagram knees and shins whereby he was bedridden several weeks, walked on crutches for a time, and made by one of the witnesses for the reafterwards used a cane for a time and had a spondent. It is claimed that this was error doctor bill of $25, a verdict for $1,000 was ex- because the diagram is not accurate.

No cessive, and should be reduced to $500.

witness testified that the diagram was acDepartment 2. Appeal from Superior curate, and it is apparent upon its face that Court, King County; John S. Jurey, Judge. it was drawn for the purpose of illustration,

Action by William Deitchler against J. O. and was used in the trial of the case only Ball. Judgment for plaintiff, and defendant for this purpose. It served merely to illusappeals. Modified and remanded, with di- trate the evidence of the witnesses to show rections.

the position of the different cars at that

ror.

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

time and place. We are satisfied there was | Stephenson v. Parton, 89 Wash. 653, 155 Pac. no error in the admission of the plat in evi- 147, quoting from 2 R. C. L. p. 1184, we said: dence as a part of the testimony of the wit- “ 'If a person is standing in the highway, a nesses who testified concerning the location driver must notice him and take care not to inof the cars at the time of the accident. In jure him, and a failure to see a pedestrian in

the street may amount to negligence.' the case of Spokane v. Patterson, 46 Wash.

[4] It is next argued by the appellant that 93, 89 Pac. 402, 8 L. R. A. (N. S.) 1104, 123 be was free from negligence, and therefore Am. St. Rep. 921, 13 Ann. Cas. 706, quoting no recovery can be had against bim, but if from 17 Cyc. 412, we said:

the testimony of the respondent and his wit"It is the common practice in the courts to nesses is to be believed, it appears that these receive private or unofficial maps, diagrams, models, or sketches for the purpose of giving a

cars were standing on the right-hand side of representation of objects and places which gen- | the road, with two wheels on the pavement erally cannot otherwise be as conveniently shown and two off, and that there was about 10 feet or described by witnesses, and when proved to of open roadway between the cars standing be correct or offered in connection with the testimony of a witness they are admissible as legit on one side of the road and the car standing imate aids to the court or jury."

on the other side. It was about 9 o'clock in

the evening. It was dark and raining. The This sketch was offered in connection with pavement was wet, and, no doubt, slippery, the testimony of witnesses who testified con

as some of the witnesses testified. The front cerning the location of the cars at the time, and rear lights on all these cars were burnand was admissible as a legitimate aid to ing brightly. When the appellant approachthe court, because it gave the court a bettered these cars he had at least 60 or 70 feet, understanding of the location than a mere

or more, in which to see them. In the ex. description by word of mouth could do.

ercise of reasonable care he was bound to [2] It is next urged as error that the trial know that the roadway at his point was parcourt permitted witnesses to testify to the tially if not wholly blocked. The lights of cause of the accident; then to be excused ; these cars would so indicate. It was bis and later to be recalled to testify to the ex. duty, therefore, to approach them in a care tent of the injuries suffered by the respond- ful manner, and to be prepared to stop his ent. Clearly there was no error in this, be machine if it was necessary to do so. The cause the order in which the evidence should evidence of the respondent tends to show be adduced was within the discretion of the that he did not stop, but approached them at trial court. It was clearly not an abuse of a speed of between 12 and 14 miles per hour, discretion to control the order of evidence and, in attempting to go in the space between this way.

the cars standing on each side of the road [3] Appellant next argues that the re- he applied his brakes too quickly, and bis spondent was guilty of contributory negli- car skidded and ran into the respondent and gence. Respondent testified, in substance, injured him. If these are the facts, and we that while he was putting up the top to his think the great burden of the evidence proves car and fastening the straps over the front them to be the facts, clearly the appellant to hold the top down, and while he was was guilty of negligence. Stephenson v. Parright up to the car as near as he could ton, supra; Kathmeyer v. Mehl, 60 Atl. (N. stand, he paid no attention to what was go- J.) 40; Schock v. Cooling, 175 Mich. 313, ing on about him. Naturally this would be 141 N. W. 675; Lauson v. Fond du Lac, 141 true, because, when he was engaged in fas- Wis. 57, 123 N. W. 629, 25 L. R. A. (N. S.) tening the top as it should be fastened, in 40, 135 Am. St. Rep. 30, and note. standing close to his car, as he says he was, We are satisfied that the appellant was he had a right to assume that no person guilty of negligence under the facts stated. would run into him. It was not necessary [5] Appellant next contends that the court for him to pay particular attention to pass-erred in denying the motion for a new trial. ers-by who had plenty of room to avoid him. This motion was based upon newly discovThe respondent, no doubt, as contended by ered evidence after the trial. Affidavits of the appellant, was required to use ordinarily two persons who were there at the time of reasonable care for his safety, and if his the accident are to the effect that the aptestimony is to be believd at all, he did so pellant's car did not injure the respondent, when he was standing close to his car at- but that the injury was caused by another tending to his business, and was not putting car. It is clear from the whole record that himself in the way of danger. The respond- this was the principal issue upon the trial, ent clearly had the right to stop his car at and that the newly discovered evidence is the place he did, and he clearly had a right merely cumulative of evidence which the to occupy a portion of the paved way in at- court heard at the trial. We are not contending to whatever was necessary to be vinced that the court erred in denying the done about his car; and it was the duty of motion for a new trial. persons coming up to him to so control their [6] Appellant next contends that the vercars as not to injure him, especially where dict is excessive. We think there is merit in there was room to avoid injury as there evi- this contention. The respondent was injured

TION.

It was not claimed at the trial that the injury Frank C. Owings, of Olympia, for appelwas permanent. The respondent was in bed lant. Troy & Sturdevant and George F. for a couple of weeks, on crutches for a Yantis, all of Olympia, for respondents. time, and afterwards used a cane. At the time of the trial the objective symptoms had MAIN, J. The purpose of this action was disappeared, and he did not use a cane. His to secure a rebate of a portion of the taxes doctor's bill and medicine cost him $25. The assessed upon the property formerly owned record does not show that he was engaged in by the Washington Public Service Company, remunerative employment, either at that time which was the owner of the waterworks sysor subsequently. He, no doubt, suffered some tem in the city of Olympia. The plaintiff is pain, but we are satisfied that one-half the the trustee for certain mortgage bonds. The amount found by the trial court is a liberal trial resulted in a judgment dismissing the compensation for his pain and suffering, and action, from which the plaintiff appeals. for his doctor bill.

The facts may be summarized as follows: The cause will, for that reason alone, be The taxes complained of as excessive were remanded to the lower court, with directions for the years 1913, 1914, and 1915. During to enter a judgment in favor of the respond the time when the taxes were levied, the ent for $500 and his costs in the lower court; waterworks plant was owned by the Washthe appellant to recover his costs in this ington Public Service Company, a corporacourt.

tion. After the taxes for the year 1915 had

been levied, the city of Olympia began a 'conELLIS, C. J., and CHADWICK, MORRIS, demnation proceeding in the Thurston county and HOLCOMB, JJ., concur.

superior court for the purpose of acquiring

the water plant. The venue of this action (99 Wash. 564)

was transferred to the superior court of NORTHWEST TRUST & SAFE DEPOSIT Pierce county, and the trial there resulted CO. V. THURSTON COUNTY et al.

in a verdict of the jury fixing the value of (No. 14335.)

the plant in the sum of $88,500. Before the (Supreme Court of Washington. Jan. 18, 1918.) trial, the county treasurer of Thurston coun1. ESTOPPEL Om68(2)—ESTOPPEL BY STIPU- ty, represented by the prosecuting attorney LATION VALUE OF PROPERTY FOR TAXA- thereof, was permitted to intervene. The

purpose of this intervention was to protect Where the county treasurer intervened in a the county in its right to have the taxes city's action to condemn a waterworks plant, doing so solely to protect the county in its assessed for the years above mentioned paid right to have taxes assessed for certain years out of the award in the condemnation propaid out of the award in the condemnation proceeding. After a judgment had been entered ceeding, and the prosecuting, attorney signed in the latter proceeding, the owner of the stipulation in the condemnation proceeding in the Supreme Court that the judgment of the plant, the Washington Public Service Com superior court should be reversed and the Su- pany, the Northwest Trust & Safe Deposit preme Court direct entry of judgment in the Company, as trustee, and others, being dissum of $102,500 as the value of the plant, in a subsequent suit against the county to secure a

satisfied with the amount of the award of rebate of taxes assessed on the waterworks the jury, prosecuted an appeal to this court. plant, the county is not estopped to claim that while the appeal was here pending and be the fair market value of the property for the fore a determination thereof, the parties particular years exceeds the amount stated in the stipulation.

entered into a stipulation to the effect that 2. TAXATION Cow 493(8)-ASSESSMENT-REVIEW the judgment of the superior court should -CONSTRUCTIVE FRAUD.

be reversed, and that this court should direct The value of property fixed by taxing of the entry of a judgment in the condemnation ficers will not be disturbed, unless shown by clear and convincing evidence to be so grossly action in the sum of $102,500. This stipulaexcessive as to amount to a constructive fraud. tion was joined in by the prosecuting attor3. TAXATION Om543(7) — EXCESSIVE VALUE= ney of Thurston county. In pursuance of SUFFICIENCY OF EVIDENCE.

the terms of the stipulation and the mandate In an action to secure a rebate of taxes assessed on property of a waterworks plant, evi- of this court, a judgment was entered by dence held insufficient to establish clearly and the superior court in the sum of $102,500. convincingly an excessive valuation.

This sum was paid into the registry of the Department 1. Appeal from Superior court, and possession of the property was Court, 'Thurston County; John R. Mitchell, taken by the condemnor. Thurston county, Judge.

by its lawful officers, placed an assessed valAction by the Northwest Trust & Safe uation upon the personal property of the Deposit Company, a corporation, as trustee, Washington Public Service Company of $75,against Thurston County, a county and mu-000 for the years 1913 and 1914, and $57,500 nicipal corporation of the state of Washing for the year 1915. These assessments were ton, and Fred W. Stocking, as treasurer of on the basis of 50 per cent. of the fair marsaid county. From a judgment dismissing ket value. the action, plaintiff appeals. Judgment af- The appellant claims that the fair market firmed.

value on the 1st days of March, 1913, 1914,

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

and 1915 did not exceed $79,706, and that, spondents, who also had made a careful the property, for the purposes of taxation, study of the value of the plant, would suswas of the value of one-half that sum, or tain the assessment. Without reviewing the $39,853. The amount of the tax, together testimony of these witnesses in detail and with the accrued interest, based upon this discussing their respective theories, it may valuation, was paid to the county treasurer, be said that, after a careful consideration and the present action instituted for the of all the evidence, the court cannot say that purpose of canceling the excess.

an excessive valuation is established by eviThe respondents claim that the value of dence which is clear and convincing. Prethe property was $150,000, and that an as- liminary to the assessment for the year 1913, sessment for one-half this sum, or less, did a printed blank supplied by the state board not require that the property bear an ex- of tax commissioners for the assessment of cessive tax.

gas and water companies was handed to the [1] It is first contended that, since the manager of the Washington Public Service county treasurer intervened in the condem- Company by the assessor. Upon this blank nation action, and the prosecuting attorney the property was listed, and its value fixed signed the stipulation above referred to, the at the sum of $150,000, and was thereupon county cannot now be heard to say that the returned to the assessor, together with a letfair market value of the property, for the ter approving the same, by the president of years mentioned, exceeded the amount stat- the corporation. For neither of the years ed in the stipulation; but this contention 1913 or 1914 did the owner of the property cannot be sustained. The only purpose of appear before the board of equalization and the petition in intervention was to protect ask for a reduction of the assessment; but the county's rights to have its taxes out of did appear before that board in the year the fund which should be paid into court in 1915, and secured a reduction. This accounts the condemnation proceeding. No issue was for the discrepancy between the amount of made upon the complaint in intervention. the assessment for the two preceding years It may well be doubted whether the county and the latter year, The amount fixed by treasurer, in that action, would have had a the verdict of the jury cannot be given much right to appeal from the judgment. More weight as evidence of value, because that over, the stipulation does not assume to fix case never went to a final determination aftthe value of the property, but provides that er the appeal was taken. The amount fixed this court might reverse the judgment and in the stipulation cannot be given great remand the cause to the superior court yith weight as to the value of the property, bedirection to enter a judgment for $102,500 cause that stipulation was prompted by a in lieu of the judgment entered upon the desire to compromise and settle the litigation; verdict of the jury for $88,500. The purpose one party doubtless being apprehensive that of the stipulation was to settle the litiga- the judgment might not be affirmed, and the tion then pending, and was a compromise other that it would be. agreement for that purpose. The supple The case of Spokane & Eastern Trust Co. mental judgment entered by the superior v. Spokane County, 70 Wash. 48, 126 Pac. court in pursuance of the stipulation and the 54, Ann. Cas. 1914B, 641, is not here in mandate of this court provided that the point, because in that case there was a fixed $102,500 be paid into court as compensation and definite policy on the part of the assessfor the waterworks system or plant. We see ing officers to value bank stock at a higher no reason why the county, in this action, percentage of its actual value than other should be bound by the amount of compen- property. In this case there was not a fixed sation paid by the city in the condemnation and definite policy to assess the property of proceeding for the plant.

the Washington Public Service Company at [2, 3] It is next claimed that the evidence a higher percentage of its value than other upon the trial of this action established such property in the county. an excessive valuation of the personal prop The case of First Thought Gold Mines, erty of the waterworks system as to make Limited, v. Stevens County, 91 Wash. 437, the assessment constructively fraudulent. 157 Pac. 1080, is not controlling, because in The appellant recognizes the rule, repeated that case, based upon the evidence there ly announced by this court, that the value considered, the court was of the opinion that fixed by the taxing officers will not be dis- the value of the property involved, taken as turbed unless such valuation is shown by a basis for taxation, was so far in excess of clear and convincing evidence to be so gross its actual value as to make the assessment ly excessive as to amount to a constructive constructively fraudulent. fraud. The evidence offered upon the trial Each case must be determined largely upas to the value is conflicting. The appellant's on its own evidence. As already indicated, engineer, who had made a careful valuation we are of the opinion that the evidence in of the plant, placed that value at such a the present case is not clear and convincing figure that, if accepted by the court, it would to the effect that the property was so grossly show an excessive assessment. The testi-overassessed as to amount to a constructive

take property in a condemnation proceeding, tion, one being for goods sold the Mannys, at one value, and require the owner to pay and the other two for goods furnished other taxes on it at another value; but the coun- parties at their request. At the same time ty was not bound by the condemnation pro- a writ of attachment was sued out and levied ceeding, and, as already pointed out, the upon a boom of logs belonging to the appelmethod of arriving at the compensation in lants. On November 10, 1916, the logs were that proceeding was such that it should not released on the filing of a bond with the apbe given controlling effect here as evidence pellant London & Lancashire Indemnity Comof value.

pany as surety. On November 14, 1916, the It is contended that the appellant is not respondent served an amended complaint in estopped from questioning the value placed which was included three additional causes upon the property for the year 1913 by the of action upon three separate promissory manager and president of the Washington notes which had been executed by the Taylor Public Service Company, the owner. This Mill Company to the appellant C. Manny, has been assumed in what has already been and by him indorsed to the respondent said, and consequently does not require fur. There was no renewal of either the atidavit ther consideration.

or writ of attachment which had been thereThe judgment will be affirmed.

tofore issued. On December 11, 1916, the

appellants answered the amended complaint, ELLIS, C. J., and PARKER, FULLER- admitting the first cause of action and de TON, and WEBSTER, JJ., concur.

positing the money therefor in the registry of

the court, and entering denials as to the other (99 Wash. 601)

causes of action. As an affirmative defense PETRI V. MANNY et al. (No. 14240.)

they set up that the respondent had thereto

fore obtained a judgment against the Taylor (Supreme Court of Washington. Jan. 21, 1918.) Mill Company upon the same three promis1. JUDGMENT Om583—MERGER OF NOTES IN sory notes in an action brought against the JUDGMENT.

mill company and the appellants Manny. In While promissory notes become merged into a judgment thereon against the maker, yet such that action the Mannys had been dismissed merger does not bar action thereon against in- without prejudice, the mill company being the dorsers if the judgment is not satisfied.

only defendant which had been served. On 2. JUDGMENT 570(7, 8)—VOLUNTABY DIsMISSAL WITHOUT PREJUDICE.

a trial of the present action to the court, A judgment dismissing certain defendants judgment was entered in favor of the rewithout prejudice leaves the parties as free to spondent upon all the causes of action except litigate every issue therein as if the action had the two for goods furnished other parties at never been commenced.

the instance and request of C. Manny, upon 3. BILLS AND NOTES Own460LIABILITIES OF which causes the judgment was that the reMAKERS AND INDORSERS-ACTIONS.

The law regards the liability of makers and spondent take nothing. From such judgment indorsers of promissory notes a several one, an appeal is prosecuted, the errors assigned and Rem. Code 1915, $ 192, allows either joint being that the third and fourth conclusions or separate action against parties severally liable thereon.

of law are contrary to the findings of fact, 4. ATTACHMENT Cw337 - BONDE-DISCHARGE that the judgment against the appellant LonOF SURETY.

don & Lancashire Indemnity Company is Even under our statutes (Rem. Code 1915, $$ 671, 672), making the bond part of the record, contrary to law, and that the judgment and requiring entry of judgment against the against the appellants Manny on the fourth, surety as well as defendant, any amendment of fifth, and sixth causes of action upon the the complaint adding entirely new causes of action subsequent to the giving of a bond dis promissory notes of the Taylor Mill Company solving attachment operates to release the sure- is contrary to law. The findings and concluty from that part of the judgment based upon sions of the court necessary to a consideration the new counts.

of the questions presented are as follows: Department 1. Appeal from Superior

"V. The court finds that as to the fourth, Court, King County; J. T. Ronald, Judge. fifth, and sixth causes of action the Taylor

Action by B. Petri against Cornelius Manny Mill Company, a 'corporation, made and deliverand Hattie Manny, his wife, and the London on the 27th day of August, 1915, its certain

ed to Cornelius Manny, the defendant herein, & Lancashire Indemnity Company. Judg. promissory note for $75, payable 60 days after ment for plaintiff, and defendants appeal. date, and that thereafter said Manny indorsed Reversed as to the London & Lancashire In, in blank said note to the plaintiff ; that at the

same time said Taylor Mill Company made and demnity Company, and affirmed as to the oth- delivered to said Cornelius Manny its certain

promissory note for $75, payable 90 days after

date, and thereafter said Manny indorsed in S. S. Langland, of Seattle, for appellants. blank said note to said plaintiff; that on the Adolf Loewe, of Seattle, for respondent. 220 day of September, 1915, said Taylor Mill

Company made and delivered to said Cornelius FULLERTON, J. The respondent, on Octo- Manny its certain promissory note for $100,

and payable 90 days after date, and thereafter ber 24, 1916, commenced an action against said Cornelius Manny indorsed in blank said the appellants Manny on three causes of ac-note to said plaintiff, said three promissory

ers.

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

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