Credit Co. v. Wood, 73 Fed. 81, 19 C. C. A. 264; Olson v. St. Paul Ins. Co., 35 Minn. 432, 29 N. W. 125, 59 Am. Rep. 333; Boon v. Etna Ins. Co., 40 Conn. 586; Moore v. Pho nix Ins. Co. (N. H.) 6 Atl. 27, 10 Am. St. Rep. 390 and note; 1 Cooley's Brief on Ins., pp. 632-4; 2 Cooley's Brief on Ins., pp. 1723, 1743-1746.

The judgment of the honorable superior court is reversed, and the cause remanded with directions to enter judgment in favor of appellant for the value of the goods as found by the trial court, together with legal interest and costs.

DUNBAR, CROW, FULLERTON, and HADLEY, JJ., concur. MOUNT, C. J., and RUDKIN, J., not sitting.

(44 Wash. 404)

PEIRCE et ux. v. NATIONAL BANK OF GERMANTOWN.

(Supreme Court of Washington. Nov. 14, 1906.) 1. COURTS- JURISDICTION-DIVESTURE-STATUTES-MANDATORY CONSTRUCTION.

Ballinger's Ann. Codes & St. § 5090, providing that in any action arising on a contract for the recovery of money only, plaintiff may file proof of personal service of the summons and complaint on one or more of the defendants and that the court "shall" thereupon enter judg ment for the amount claimed, is not mandatory so as to require the court to enter judgment immediately on the filing of proof of service on defendants or to forfeit its jurisdiction, and hence, delay in entering judgment for over four years after the filing of the summons with proof of service did not devest the court of jurisdiction, in an action for the recovery of money due on a contract.

2. DISMISSAL-WANT OF PROSECUTION.

While plaintiff's failure to have judgment entered in an action on a judgment for over four years after proof of service of the summons on defendants, may have justified the court, after the lapse of a reasonable time after the filing of such proof of service and before entry of judgment, in granting a motion by defendant to dismiss for want of prosecution, the final entry of such judgment foreclosed the right to such dismissal.

Appeal from Superior Court, Pierce County; W. O. Chapman, Judge.

Action by Joshua Peirce and another against the National Bank of Germantown. From a judgment sustaining a demurrer to the complaint, plaintiffs appeal. Affirmed.

T. L. Stiles, for appellants. C. M. Easterday, for respondent.

FULLERTON, J. The appellants brought this action to remove a cloud from title. In the complaint, it is alleged that the appellants are the owners of certain real property situated in the county of Pierce; that on August 27, 1892, in an action brought in the superior court of that county, the respondent recovered a judgment against Joshua Peirce for the sum of $1,489 on a contract for the payment of money; that on August 23, 1898, a few days before an action would have been barred by the statute

of limitations, the respondent brought an action against him on the former judgment, and caused summons to be personally served on him in the manner required by statute; that he made no appearance in the action, and, on December 22, 1898, the respondent caused the summons with proof of service, an affidavit of no appearance, and a formal motion for default and judgment to be filed with the clerk; and that the matter was then suffered to rest until March 25, 1903, a period of four years, three months and four days, when judgment was entered as of the last mentioned date without further notice to Peirce. The complaint concludes with the allegation that the judgment was entered without jurisdiction, and is for that reason void; and that it constitutes a cloud upon the plaintiffs' title which prevents the sale and disposition thereof. The prayer is that the judgment be decreed to be void, and ordered canceled of record. To this complaint a demurrer was interposed and sustained. The appellants thereupon elected to stand on the complaint, when a judgment of dismissal was entered. The appeal is from that judgment.

To sustain their complaint, the appellants make two contentions: First, that the statute providing for the entry of default judgments upon contracts for the recovery of money only makes it mandatory upon the court to enter judgment immediately upon the filing of the proof of service; and, second, that by the long and unexplained delay in entering its judgment the action was abandoned by the plaintiff, and the court was without jurisdiction at the time it purported to enter judgment to enter any judgment in the case. The statute relied upon

to sustain the first contention is found at section 735 of Pierce's Code [Ballinger's Ann. Codes & St. § 5090]. This section provides that in any action arising on contract for the recovery of money only, the plaintiff may file proof of personal service of the summons and complaint on one or more of the defendants, and that the court "shall" thereupon enter judgment for the amount claimed. But we cannot think this statute mandatory in the sense that it requires the court, under the penalty of a loss of jurisdiction over the subject-matter of the action, to enter judgment immediately on the filing of proof of service on one or more of the defendants. The section is only one of a number enacted to govern the practice in civil actions, and to construe it as being mandatory would render it out of harmony with such others. To illustrate: Certain sections give a defendant a fixed time, varying according to the place of service, the shortest of which is 20 days, in which to appear and answer after service is made upon him. Others, again, prescribe the mode and manner of service and the character of the return that shall be made by the officer or person

making the service. These permit the return to be filed with the clerk at any time after the service is made, whether or not the judge of the court or the plaintiff is present, and whether or not the time in which the defendant has to appear and answer has expired. It is plain that if the statute is mandatory a plaintiff may unwittingly lose his right to a judgment through no fault of his own, as he has no means of knowing when the return will be filed; or the court may be compelled to enter a judgment before the time of service has expired, since the officer making the service need not wait for that length of time before making and filing his return of service. While other examples might be given these are sufficient to show that the statute cannot receive a mandatory construction without the necessity of radical changes in the existing practice.

The other contention is of more moment, but we do not think it fatal to the validity of the judgment. Had the defendant after the lapse of a reasonable time, and before judgment was finally entered, moved the court to dismiss the action for want of prosecution, doubtless the court would have been justified in granting the motion, especially in the absence of a showing that there was some just cause for the delay. And it may be that the trial court would have been justified on its own motion in refusing to enter judgment after so long a delay, at least, until further notice was served on the defendant. But, after judgment is entered, we think the defendant's right to have the action dismissed for mere delay is foreclosed, and that any successful attack on the judgment must be based on grounds that would have required its vacation if entered when the action first became ripe for judgment. Any other rule, it seems to us, would result in uncertainty, as there could be no way of determining whether a given judgment was void or valid. The cases cited by the appellant, as we read them, do not support his contention. The case of Den ex dem. Rutherford v. Fen, Folger, tenant. 20 N. J. Law, 299, is most nearly in point, but there is a wide difference between that case and the one at bar. That was an action in ejectment brought against the casual ejector, Richard Fen, and the tenant in possession, without joining the real owner of the land. The tenant afterwards became a lunatic and ceased to occupy the premises. Nothing was done in the action until a lapse of nearly 20 years when the plaintiff moved for judg ment against the casual ejector. This motion was denied by the trial court, and its ruling was affirmed on appeal. In the case before us the trial court did not refuse to enter judgment. The question in the one case was, therefore, did the trial court abuse its discretion in refusing to enter judgment after so long delay? while in the other it is, is the jugment void?

As we think the judgment not void, the judgment appealed from must be affirmed. It is so ordered.

MOUNT, C. J., and HADLEY, DUNBAR, CROW, RUDKIN, and ROOT, JJ., concur.

(44 Wash. 408)

PLATTOR v. SEATTLE ELECTRIC CO. (Supreme Court of Washington. Nov. 14, 1906.) 1. WITNESSES EFFECT OF FALSE TESTIMONY.

CREDIBILITY

In an action for injuries to a passenger on a street car, the fact that she positively identified the wrong person as the conductor of the car, would not show that her testimony in relation to the manner in which she was hurt was untrue.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 50, Witnesses, §§ 1079–1081.]

2. CARRIERS-INJURIES TO PASSENGER-NEGLIGENCE QUESTION FOR JURY.

In an action for injuries to a passenger caused by the starting of a car before she had taken a seat, evidence held to present a question for the jury as to negligence of the carrier.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 9, Carriers, §§ 1315, 1322.]

Appeal from Superior Court, King County; George C. Hatch, Judge.

Action by Louise M. Plattor against the Seattle Electric Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Hughes, McMicken, Dovell & Ramsey, for appellant. Clay Allen, for respondent.

DUNBAR, J. An examination of the record warrants us in adopting the statement made by the appellant in this case. Plaintiff claims to have been injured by the negligence of the defendant company as follows: She was 45 years of age, weighing at the time 268 pounds. No pretense was made that she was feeble, or that she was not able to handle herself, or get on or off cars without assistance. She approached one of the defendant's cars, having with her a child two years old, which was able to walk, and which she was leading by the hand. The car upon which she took passage was one of the ordinary cable cars, with open seats at either end, the center of the car being closed. When the car stopped at the place she was standing, she lifted the child and attempted to put it upon the platform of the car. The car, however, started before she was able to get on, and she pulled the child back off the platform while the car advanced about 10 feet. She then followed the car, placed the child upon the platform, got onto the platform herself, holding the child by the hand and permitting it to walk in front of her, passed through the door into the inclosed portion of the car. After she passed through the door, the signal to start the car was given, and she describes what befell her then as follows: "Q. After you passed through the door of the car, tell the jury exactly what happened, just describe to them

exactly. A. Just as I passed through the door the signal was given for the car to start, and immediately the gripman responded, throwing me forward with a jerk of the car. Q. Indicate on here where you were. A. I was just inside the door when the signal was given. Q. Where had you taken a seat? A. I had not had time to start to take my seat. I was inside of the door. Q. About what position in there were you when the car pushed forward-started? A. Why, I wasn't over a foot from the door of that car when the car gave a lurch, throwing me forward. Q. In what position relative to the seat of this car were you when the car actually started? A. I hadn't had time to turn myself around to sit down. Q. Where was the baby at that time? A. Right in front of me, and I had hold of her hand. Q. Describe to the jury just exactly what happened when the car started. A. It threw me forward with a lurch. Q. And then what did you do? A. I threw out my hands and caught on the opening below the window to save me going to the floor. Q. What happened next, tell the jury. A. I caught myself on the window and seated myself, fell on the seat, striking my limb on the edge of the seat." It does not appear that there was anything extraordinary about the movement in starting the cable car, or that the starting was in any wise different from the ordinary and usual movement of the cable car in starting. During the trial the plaintiff identified one Evett as being the conductor in charge of the car at the time she was injured. It is claimed by the appellant that it is established beyond controversy that Evett was not the conductor on the car upon which the respondent claims that she was riding at the time of the alleged injury, and the assignments of error are that the court erred in overruling defendant's challenge to the sufficiency of the evidence and in overruling defendant's motion for a new trial. These assignments are based upon two questions: (1) Did the plaintiff, assuming her story to be true, establish negligence on the part of the defendant company in the operation of its cars? (2) Shall a verdict for the plaintiff be permitted to stand in a case of this nature, when it has been established with almost the certainty of a mathematical demonstration that the story of plaintiff, which was uncorroborated, was false?

We will first notice the second proposition. Of course, if the fact were established that the story of plaintiff was false, the verdict should not be allowed to stand. But the statement assumes the question in controversy. We do not think that the mere fact that the respondent swore positively that Evett was the conductor on the car upon which she alleged she was hurt would necessarily prove that her testimony in relation to the material fact of whether or not she was hurt in the manner described by herself was untrue,

even conceding that it is conclusively proven that Evett was not the conductor operating the car at the time. An examination of the whole record has failed to convince us that the respondent intended to deliberately swear falsely in her identification of conductor Evett. The most that can be adduced from the whole record is that she was mistaken. At least it was only a question that affected the credibility of her testimony, and that was a question which was properly submitted to the jury.

The next proposition, first stated by the appellant, involves the question of whether, conceding the statement of the respondent to be true, there was any negligence on the part of the conductor, or any duty on his part to see that she had reached her seat before starting the car in the manner in which it is alleged and proven that it did start. Many cases are cited by both the appellant and the respondent, but the citation of authorities on this question is of little benefit, for the reason that it is conceded by the appellant that negligence might well be permitted to be predicated upon the fact that a car was started before a passenger who was manifestly weak, crippled, or infirm had reached a secure seat, while the respondent concedes that the weight of authority, as well as the experience on which these authorities base their conclusions, do not require, in all cases and under all circumstances, a street railway operator to wait until a passenger shall have had time and opportunity to reach a seat before starting the car. No two cases are exactly alike, so far as the appearance of the party injured and the surrounding circumstances are concerned, and the question in this case is not so much what the general law is as under what principle of law the facts in the case fall. The correct principle, which is deducible from all the better-reasoned cases, is that the conductor, having supervision and control of the car and of the passengers on the car, must exercise that supervision in a reasonable way, taking into consideration the appearance of the passengers and the circumstances surrounding them. It is the infirmity of the passenger and his incapacity to protect himself that he must take notice of, no matter whether that infirmity is produced by age or from being crippled, or from ravages of disease, or from excessive obesity. Or it might be that a passenger, who was young, agile, and alert, would be incapacitated from protecting himself from the sudden lurch of a car for the reason that his hands were occupied by holding a child or some other burden. In all such cases the conductor should see that the passenger has time to obtain his seat before the car is started with such suddenness as to imperil his safety. This doubtless is more or less burdensome upon the conductor, but it is a burden imposed in the interest of common humanity and for the welfare of the public. Under this rule the question then is,

was there anything in the appearance of the respondent which would indicate to a watchful conductor that she required more than ordinary consideration? It cannot be denied as a rule that excessive flesh is burdensome, rendering its unfortunate possessor more or less helpless and clumsy. This woman was 5 feet and 4 inches in height and weighed 26S pounds, being about twice the weight of the ordinary woman of her height, a condition which should have challenged the attention of the conductor in whose care and charge she had placed herself. Besides this, she was burdened with the care of a little, toddling child, just able to walk, which ought to have been the especial care of the conductor, and one of her hands was engaged in trying to direct and protect the child at the time of the accident. In addition to this, the conductor's attention had just been called to the slow, clumsy condition of respondent by her ineffectual attempt to board the car with the child, necessitating the stopping of the car a second time for the purpose of allowing her to get on. We think this was a case calling peculiarly for special care on the part of the conductor, and that there was ample testimony to sustain the verdict of the jury.

The judgment is affirmed.

MOUNT, C. J., and RUDKIN, FULLERTON, and HADLEY, JJ., concur.

CROW and ROOT, JJ., did not participate.

(44 Wash. 363)

WILLIAMS v. SPOKANE FALLS & N. RY. (Supreme Court of Washington. Nov. 13, 1906.) 1. APPEAL-PRESENTATION GROUNDS OF REVIEW-MOTIONS FOR NEW TRIAL-EXCESSIVE DAMAGES.

OF

In a personal injury action defendant filed a motion for a new trial because of excessive damages, for error in the assessment of the amount of the recovery, the same being too large, and the insufficiency of the evidence to justify the verdict, and that the verdict was against the law. Held, that the question of the excessiveness of the verdict was sufficiently presented to the trial court.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 2, Appeal and Error, § 1749.]

2. SAME ASSIGNMENTS OF ERROR-DAMAGESEXCESSIVE DAMAGES-QUESTIONS RAISED.

A defendant in a personal injury action filed a motion for a new trial on the ground of excessive damages and the insufficiency of the evidence to justify the verdict. The court denied the motion, and its action was assigned as error by the defeated party in the following language: "The court erred in overruling * * motion for a new trial." Held, that the question of the excessiveness of the verdict was presented to the court on appeal.

3. SAME ASSIGNMENT OF ERROR-ARGUMENTNECESSITY.

Where an assignment of error asserts that the trial court erred in overruling a motion for a new trial based on the excessiveness of the damages, the failure of appellant to argue in the opening brief the question of excessive dam

ages did not prevent appellant from having the same reviewed.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 4256-4261.] 4. SAME MODIFICATION OF JUDGMENT-AUTHORITY OF APPELLATE COURT-STATUTES.

Under Ballinger's Ann. Codes & St. § 6521, providing that the Supreme Court may affirm, reverse, or modify any judgment appealed from, and may direct the proper judgment and order to be entered or direct a new trial, the Supreme Court has jurisdiction to reverse a judgment or to modify it or to grant a new trial absolutely or conditionally.

[Ed. Note. For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 4411.] 5. SAME.

Where passion or prejudice on the part of the jury is shown on appeal from a verdict because of its excessiveness, or when errors as to admission or exclusion of evidence or as to instructions are shown, which have the effect of unduly augmenting the amount of the verdict, the court may grant relief to the injured party, either by an absolute reversal, a modification of the judgment, or an order for a new trial conditioned on the successful party declining to remit such a portion of the verdict as might be indicated.

Dunbar,, J., dissenting.

On petition for rehearing. Denied.

For former opinions, see 84 Pac. 1129, and 80 Pac. 1100.

On Rehearing.

ROOT, J. The respondent, by one of his attorneys, has filed a printed petition for a rehearing on the last opinion of the court in this cause. Appellant has moved to strike this petition, upon the grounds: (1) That a petition for rehearing is not permissible after one rehearing has been had. (2) That the language of the petition is discourteous and Appellant disrespectful toward the court. waived the first ground. As to the second. said attorney appeared before this court and explicitly stated that he had not intended to reflect upon, or be discourteous to, the court or any member thereof. In view of this disavowal and the fact that to strike the petition would be to punish the client, we have decided to deny the motion and to consider the petition upon its merits.

The main contention and the essence of respondent's argument is that this court has passed upon a question not properly before it in that we have reduced a verdict and judgment from $33,000 to $20,000 when the question of its being excessive was not before us. The contention has no basis of support either in fact or law. After the verdict was rendered the appellant interposed a motion for a new trial, based upon several grounds, three of them being as follows: "(5) Excessive damages, appearing to have been given under the influence of passion and prejudice. (6) Error in the assessment of the amount of recovery, the same being too large and against the weight of the evidence. (7) Insufficiency of the evidence to justify the verdict, and that the verdict is against the law." It will thus be seen that the question

of the excessiveness of the verdict was expressly presented to the trial court. One of these grounds was waived in this court, but two of them were never waived, unless by an implication which we deem unjustifiable. That court denied the motion-thereby ruling that the verdict was not excessive-and its action was assigned as error by appellant in its opening brief on appeal in the following language: "The court erred in overruling appellant's motion for a new trial." This was appellant's twelfth assignment of error. It will thus be seen that the question was squarely presented to this court.

In one of his written arguments upon the question of rehearing, respondent employed the following language: "As counsel state, one ground of defendant's motion for a new trial was that the verdict was excessive. If it was, error was committed by the trial court in denying the motion." This court found that the verdict was excessive. Hence it found that the trial court committed error in denying the motion for a new trial, and. as that error was plainly assigned by appellant's opening brief, it became this court's duty to correct the same in the manner it deemed most conducive to the ends of justice. Respondent quotes the rule of court requiring the pointing out of errors. It being admitted by him, as just quoted, that, if the verdict, was excessive, the trial court committed error in denying the motion for a new trial, it follows logically and irresistibly that the error was "pointed out" when appellant, in its opening brief, assigned as error the only ruling which the trial court ever made upon the question of excessive verdict-its denial of the motion for new trial. The rule of court mentioned was intended for the convenience of the court. If we are satisfied with the manner in which it is complied with in a given case, there would seem to be little cause for complaint by any party to the litigation, unless such party be thereby misled, which is not the case here. The inference to be drawn from respondent's present argument is that the question of excessive verdict was not "presented" or "pointed out" inasmuch as it was not argued in the opening brief. Even if the question were not argued, that would not prevent appellant from having it reviewed. Neither the statute nor any rule of court requires an argument to be made. That is not the essential, legal method by which an error is "pointed out" or an issue "presented." It is the func tion of the "assignments of error" to "point out" the errors relied on. The only ruling as to the amount of the verdict charged as error against the trial court was its order denying the motion for a new trial, which is "pointed out" in the "assignments of error," and thereby brought to this court's attention. Whether or not it should have been argued was entirely optional with appellant. The "assignments of error" presented the issue as by the statute and rule of court re

quired. This court then had jurisdiction to Ideal with it. As a matter of fact, however, the question of excessive. verdict was argued by appellant's counsel. In the motion for new trial, certain rulings of the trial court were assigned as a basis for a new trial. Some of these were alleged upon appeal to have been very prejudicial to appellant, and, if they were erroneous, must have had a strong tendency toward inducing the jury to return an excessive verdict. Some of these and other matters were argued by appellant in its brief at much length. On page 18 of its opening brief this language appears: "The testimony could serve no other purpose than that of misleading and confusing the jury and establishing a false standard for estimating respondent's damages." It will be seen that this argument bore directly upon the question of damages. At pages 22 and 26 of said brief appellant said: "We submit that it was grossly improper to permit this cross-examination. The plain purpose of it, and doubtless its effect, was to put the witness before the jury as a person who had violated a positive statute, as well as the ethics of his profession, by giving testimony in the case. * * To say that such a course was not prejudicial would be to ignore human experience and the dictates of common sense." These observations were made relative to the cross-examination of a physician who was a witness for appellant. It is plain that, if appellant's contention was sound, the error complained of must have tended to arouse passion and prejudice on the part of the jury and to have placed before them improper evidence bearing very materially upon the amount of the verdict.

After devoting 50 pages of its brief to discussing the various errors assigned (most of which bore directly and solely upon matters affecting the amount of the verdict) the appellant said: "For the foregoing reasons the court erred in overruling appellant's motion for a new trial." In other words, appellant submitted this assignment upon the arguments already made. We are cited to no authority requiring anything further. We believe there is none. In a case of this character little argument is necessary on the question of the amount of recovery. The court must examine the evidence. When this is done and the other questions are argued, but little help is gained from extended argument as to the amount. It is entirely different from a case where argument is essential to an understanding of one or more of the errors "pointed out" in the assignments of error. In any event, there is no statute or rule making argument a prerequisite to jurisdiction over an issue presented by the assignments of error. Where the assignments of error merely go to a question of procedure, or bear solely upon a right to any recovery whatever, and there is no separate assignment as to the amount of recovery, respondent's contention might possibly be upheld. But