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consequently entitles it to a reversal in this court with instructions to enter a judgment in its favor. But while it is true this court has held that an instruction, even if erroneous or wrongfully given, is binding and conclusive upon the jury, and ground for reversal if the jury refuse to heed it (Pepperall v. City Park Transit Co.. 15 Wash. 176, 45 Pac. 743, 46 Pac. 407; State v. McGilvery, 20 Wash. 240, 55 Pac. 115; Dyer v. Middle Kittitas Irr. Dist., 40 Wash. 238, S2 Pac. 301), we think this question is not presented in this record. The question was not raised, as we have shown, by the motion for nonsuit, since the court was bound to deny that motion if it found that the evidence justified a recovery on another theory than that outlined in the complaint, and it is not raised by this instruction, since the appellant not only did not except to it, but expressly requested that it be given, and consequently is now estopped from asserting that there was no evidence in the record on which to base it.

condition for, the uses the invitation authorized him to make of them, which duty it failed to perform. It is true the appellant extended no express invitation to the respondent to enter upon its premises, but it contracted with Richardson to so enter, and by its contract gave him express authority to employ the respondent. But, in the absence of such express authority, the rule is that the servant of an independent contractor engaged in work for the contractor on the premises of the proprietor is deemed to be thereon by invitation of the proprietor, and the proprietor owes him the same duty to provide for his safety that it owes to the contractor himself, namely, that he will maintain the premises in a reasonably safe condition for the uses the contractor or servant is entitled to make of them, and will not expose him to hidden dangers of which he is not aware, but which are known to the employer. Thompson on Negligence. $$ 680. 968. 979: John Spry Lumber Co. v. Duggan. 80 Ill. App. 394: Bennett v. Railroad Co., 102 U. S. 577. 26 L. Ed. 235. So in this case. if the respondent's version of the occurrences is to be believed, the appellant owed the respondent the duty of either covering or guarding the tank into which he fell, or giv-ployer or an independent contractor is often ing him timely warning of its existence, and, failing in this, it rendered itself liable for the injuries received by him.

The appellant argues, however, in this connection, that the complaint proceeds upon the theory that the respondent was in the employ of the appellant. and that, unless the respondent proved that fact, the appellant was entitled to have its motion for judgment or for a directed verdict granted. But the motions of the appellant were nothing more than challenges to the sufficiency of the evidence, and the rule is that the challenge must be denied if the evidence itself makes a case against the challenging party, whether the case made falls strictly within the pleadings or not. To hold otherwise would be to deny the plaintiff the benefit of the statutes relating to amendments. It may be that in this case, owing to its somewhat peculiar circumstance, the appellant would have been entitled to have the respondent elect on which of these divergent principles he intended to rely, and compelled him to amend his complaint if he elected to rely on the principle that he was on the premises as an invitee of the appellant; but, as no such request was made, the respondent cannot be held to be in default because he did not amend.

The appellant insists, also, that since the court at its request charged the jury to the effect that they could not find for the respondent unless they found that he was an employé of the appellant at the time of the accident, and since, as it contends further. there was no evidence before the jury that he was such an employé, such charge became the law of the case, and entitled it to a verdict and judgment in the trial court, and

But, if we were to concede that the question was properly before us, we would hesitate to declare the verdict against the evidence. Whether a person employed to do a specific piece of work is a servant of his em

a question difficult of solution, and frequently depends upon the answer given to the question: What is the proper conclusion to be drawn from the facts proven? Where the proper conclusion is doubtful, or where different minds may legitimately draw different conclusions from the facts proven, the question whether such person is a servant of the hirer or an independent contractor is for the jury, and the trial court is in duty bound to submit the question to them. It seems to us that this record presents such a state of facts. Without going into an analysis of the evidence, we think the jury may well have found that Richardson was a mere employé of the appellant. and authorized by it to employ the respondent on its behalf. This being true, there is no error in the court's charge, even under the appellant's conception of the state of the record.

On the question of the excessiveness of the verdict, we think the appellant has cause to complain. While the respondent was badly burned and suffered severely for a time therefrom, we think it not of such a permanent character as to warrant the amount awarded him. The judgment should not exceed $1,700.

If. therefore, the respondent will remit from the judgment within 30 days after the remittitur reaches the trial court the sum of $1.000, the judgment will stand affirmed as to the remainder ($1.700) and costs taxed in that court. If, however, he fails to so remit within the 30 days, the judgment will be reversed and a new trial awarded. The appellant will recover costs in this court.

HADLEY. C. J., and CROW and RUDKIN, JJ.; concur.

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CROW, J. On or about March 6, 1905, the defendants E. F. Beck and Mary A. Beck, his wife, who had recently purchased block 72, Burke's Second addition to Seattle, for $3,000, entered into a written contract with the plaintiff, B. L. Muir, which, in substance, provided that the property should be subdivided into lots, to be sold by the plaintiff, Muir, at not less than agreed minimum prices; that abstracts of title were to be furnished by the defendants Beck and wife at a cost of not more than $5 per lot; that the expense of subdivision, surveying, platting, and clearing, not to exceed $45, should also be paid by Beck and wife; that the plaintiff, Muir, was to receive a commission of 5 per cent. on all sales made by him; that, if within six months plaintiff had sold lots for cash and on time to the total value of $5,500 over and above his commission, then all lots remaining unsold were to be conveyed to him by the defendants Beck and wife as additional compensation for his services. The plaintiff, claiming to have sold the required number of lots, commenced this action to compel the defendants to convey to him all lots not sold, and for an accounting for the proceeds of certain lots which he alleged the defendants had wrongfully sold after the expiration of the six months and after the plaintiff's completion of the contract. The trial court made findings, and entered a decree in favor of the plaintiff. The defendants have appealed.

Several assignments of error are made, but the appellant's principal contention is that sufficient lots were not sold within the six months to net them $5,500 over and above respondent's commission. The trial court found that such sales had been made. After considering all the evidence and making careful computations based thereon, we conclude that this finding is correct. The substantial dispute between the parties was whether a certain sale of three lots made by the respondent, Muir, to one Choput, was for $1,300 as contended by respondent, or only $1,150, as.

contended by appellant. The court correctly found it to have been for $1,300. In fact, the appellant E. F. Beck admitted that he had executed a contract of sale, and afterwards a deed, to Choput expressing $1,300 consideration. The cost of grading $45, and the cost of abstracts $96, being a total of $141, should have been paid by appellants, but were, in fact, paid by respondent. Respondent is therefore entitled to a credit therefor against the $5,500. This would leave $5,351 as the net sum due appellants under the contract for sales made within the six months. Appellant's testimony caused the trial court to interrupt him on two or three occasions, and correctly suggest that his statements resolved the issues of fact in favor of respondent. Thereupon appellant would always urge some mistake or misunderstanding. He was granted time to make final computations, and, after doing so testified, without making any detailed statement, that he had received in money and time contracts, for all sales made by respondent, within the six months, the total sum of $5,270; but he never admitted having received the extra $150 on the Choput sale, which he did in fact receive. If this $150, the $45 for grading, and $96 for abstracts be added to the $5,270 admitted by him, there would be a total of $5,561 to be charged against him on sales made by respondent within six months from the date of the contract, which more than constituted performance by respondent.

Other assignments of error are made, such as wrongful exclusion of evidence, incorrect amount of recovery, and improper form of judgment, all of which, after careful consideration, we conclude are without merit. Substantial justice has been done by the final decree entered, which is accordingly affirmed.

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

(47 Wash. 96)

STERN v. DANIEL. (Supreme Court of Washington. Sept. 6, 1907.) 1. EVIDENCE-LETTERS.

In an action for attorney's services, letters written by defendant to plaintiff which showed that defendant was engaged in leasing buildings for immoral purposes were admissible, though they reflected on defendant's business character, to show that plaintiff rendered services to defendant in the way of advice and consultation in regard thereto, for which plaintiff was entitled to recover.

2. WITNESSES-PRIVILEGED COMMUNICATIONS. Such letters, though privileged as between either plaintiff or defendant and third parties, were not so as between themselves.

Appeal from Superior Court, Spokane County; Miles Poindexter, Judge.

Action by Samuel R. Stern against R. T. Daniel. From a judgment for plaintiff, defendant appeals. Affirmed.

See 88 Pac, 1116.

A. E. Barnes and Geo. A. Latimer, for appellant. Horace Kimball and Samuel R. Stern, for respondent.

MOUNT, J. Respondent brought this action to recover from appellant for the value of services rendered as an attorney and counselor for appellant between July 1, 1903, and January 1, 1906, and also for disbursements alleged to have been made for appellant on account of certain cases then pending in court. The trial was to a jury, and resulted in a verdict in favor of respondent in the sum of $1,000. The court denied a motion for a new trial, and entered a judgment on the verdict in favor of respondent in the sum of $1,000. The defendant appeals.

The complaint alleged the value of the serv ices to be the sum of $2,305, and the amount of disbursements to be $795.32, making a total of $3,100.32. On this total the complaint alleged payments by the respondent amounting to $1,422.25. The answer admitted the employment of the respondent by the appellant, but denied that the services performed by the respondent were of the value alleged in the complaint, and admitted the payment of $1,422.25, which it is alleged fully paid respondent for his services and disbursements. The answer also alleged three affirmative defenses, substantially as follows: (1) That respondent needlessly expended the sum of $496.92 in the defense of Wright v. Daniel, which the respondent should have known was a useless waste of money; (2) that in the case of Wright v. Daniel, owing to the unskillful manner in which respondent defended said case, it became necessary for appellant to employ other counsel at an expense of $350, to assist respondent therein; (3) that, in the case known as the "Pattee Case," appellant was also required to employ other counsel at an expense of $400, on account of the unskillfulness of respondent. Because there was no evidence to support these three affirmative defenses, they were each taken from the consideration of the jury. It is claimed by the appellant that the court erred in not granting a new trial, because (1) of insufficiency of the evidence to justify the verdict; (2) the jury was prejudiced against the appellant; (3) the fees were excessive upon their face, and because certain exhibits were erroneously allowed in evidence. A cursory reading of the plaintiff's testimony discloses that there is ample evidence to justify the verdict, if the jury believed it, which they evidently did, and we find nothing in the amount of the verdict to justify the contention that the jury were prejudiced against the appellant.

The complaint prayed for a balance of $1,678. There was evidence to support the judg ment for this amount. But the jury found for but $1,000, which was, in our opinion, a conservative finding. There was evidence in the case which may have had a tendency of prejudice against the appellant. For example,

letters which were written to respondent by the appellant were introduced in evidence. These letters showed that appellant was engaged in leasing buildings for immoral purposes. But these letters were admissible to show that respondent had rendered services to the appellant in the way of advice and consultation in regard thereto, for which respondent was entitled to recover. The mere fact that these letters reflected upon the business or character of appellant was not sufficient reason for excluding them. If they were prejudicial on this account, that prejudice is not manifest in the verdict rendered. It is also claimed that these letters were privileged, and that the court erroneously admitted them. They would have been privileged, no doubt, as between either of the parties to this suit and third parties; but as between the attorney and client the rule of privilege will not be enforced where the client charges mismanagement of his cause by the attorney, as was the case here, and where it would be a manifest injustice to allow the client to take advantage of the rule of privilege to the prejudice of his attorney.

or when it would be carried to the extent of depriving the attorney of the means of obtaining or defending his own rights. 23 Am. & Eng. Enc. of Law (2d Ed.) p. 79; Mitchell v. Bromberger, 2 Nev. 345, 90 Am. Dec. 550. It was therefore not error to allow these letters in evidence.

It is also argued that the court erred in permitting certain hypothetical questions proposed to attorneys as witnesses upon the question of the amount of reasonable fees. The questions as finally permitted were, we think, in accordance with the plaintiff's evidence and supported by it, and therefore were not erroneous.

We find no reversible error in the record. The judgment must therefore be affirmed.

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

(47 Wash. 112) GRANT et al. v. SPOKANE TRACTION CO. (Supreme Court of Washington. Sept. 6, 1907.) 1. TRIAL FINDINGS INCONSISTENT WITH GENERAL VERDICT.

A complaint in an action for personal injuries by a passenger against a street railway company alleged that while the car was motionless, and plaintiff was alighting therefrom, and about the time she placed one foot on the pavement, the other being on the step of the car, the car was negligently started. The jury in a plaintiff was standing with both feet on the special verdict found that, when the car started, steps of the car. Held, that the special verdict did not negative the general verdict that the car was started while plaintiff was alighting, which was the gist of the negligence charged. [Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, § 857.]

2. SAME-CONSTRUCTION OF SPECIAL VERDICT. Where a special verdict is susceptible of two constructions, one of which will support the

general verdict and the other will not, that construction will be given to the special verdict which will support the general verdict.

[Ed. Note. For cases in point, see Cent. Dig. vol. 46, Trial, § 872.]

3. WITNESSES-CROSS-EXAMINATION.

Where, in an action for personal injuries. by a passenger against a street railway company, it appeared on the direct examination of plaintiff's husband that he was commonly called "doctor," and that, when the conductor asked him his name, he handed him a handbill, containing his name, picture, location of his office, and advertisement of his methods of treatment, cross-examination was properly permitted as to whether he was a licensed practitioner, whether he prescribed for his wife, and the handbill was properly admitted in evidence, the jury being entitled to know who the witness was and the character of his business.

[Ed. Note. For cases in point, see Cent. Dig. vol. 50, Witnesses, §§ 1106-1108.]

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

Action by Nellie M. Grant and another against the Spokane Traction Company. From a judgment for plaintiff, both parties appeal. Affirmed.

Graves, Kizer & Graves. for appellant. Danson & Williams, for respondents.

MOUNT, J. Action for personal injuries. The plaintiff Nellie M. Grant was injured while alighting from a street car operated by defendant. The cause was tried to a jury. A general verdict for $1,700 was returned in plaintiffs' favor. Special interrogatories were submitted to the jury at defendant's request, and were answered by the jury as follows: "(1) Was the plaintiff Nellie M. Grant standing with both feet on the steps of the car when it started? Ans. Yes. (2) If so, did she attempt to get off, or did her husband, B. M. Grant, pull her off after the car had started, and while it was in motion? Ans. She attempted to get off, and was assisted by her husband. (3) Was the plaintiff Nellie M. Grant standing with one foot on the step and one foot on the pavement and in the act of getting off when the car started? Ans. No." Thereafter the defendant moved the court for a judgment notwithstanding the general verdict, and the plaintiffs moved for a new trial. Both motions were denied, and a judgment entered upon the general verdict. Both parties to this action have appealed.

ceeded by invitation of said defendant to alight from said car while it was motionless, and while so in the act of alighting from said car, and at or about the time said plaintiff placed one foot upon the street. while the other foot was upon the step of said car, said defendant carelessly and negligently started said car, and dragged said plaintiff Nellie M. Grant for a short distance, finally throwing her violently to the ground." thereby injuring her. Plaintiffs' evidence substantially conformed to these allegations; but the jury found by the special findings above quoted that at the time the car started the plaintiff Mrs. Grant was standing with both feet on the steps of the car, and one foot was not on the steps and the other on the pavement. Defendant contends upon these special findings that the jury found against the case alleged in the complaint, but permitted recovery upon another state of facts. A number of cases are cited to the effect that a plaintiff cannot allege one state of facts and recover upon another, and this contention thus broadly stated is no doubt the rule (Albin v. Seattle Electric Company, 40 Wash. 51, 82 Pac. 145); but the negligence alleged here is that the car was motionless, and that the defendant carelessly started the car while plaintiff was in the act of alighting therefrom, "and at or about the time said plaintiff had placed one foot upon the street, while the other foot was upon the steps of said car." This last clause served to fix the time and position of the plaintiff

either exactly, but only at or about a certain time. The gist of the negligence was in starting the car while plaintiff was in the act of alighting. If plaintiff was in the act of alighting when the car started, and was injured thereby, without fault on her part, she was entitled to recover. We understand that defendant concedes this to be the rule. It might be extremely difficult for any one to know to a certainty whether both feet were on the steps, or one was without support, in space, between the step and the pavement, or one was on the step and the other on the pavement upon an occasion like the one in question, where the car was started while the passenger was in the act of alighting. The details which fix the exact moment or position of a person under such circumstances as existed in this case are usually arrived at by a process of reasoning rather than by memory, so that a person may easily be mistaken as to the exact position at a fixed time. No doubt in this case the starting of the car, the plaintiff standing with both feet upon the steps and with one foot on the step of the car, while the other was in space, and one foot upon the step while the other was upon the pavement, all occurred simultaneously, or so nearly simultaneously that the differ

The defendant contends that the special findings are inconsistent with the general verdict, and therefore control it, and plaintiff's contend that the court erred in permitting certain cross-examination of the plaintiff B. M. Grant while he was a witness in behalf of plaintiffs. The complainant alleged that "the defendant's said car was stopped by said defendant for the purpose of permitting plaintiff Nellie M. Grant and other passengers to alight from said car, and thereupon plaintiff Nellie M. Grant pro-ence in time was imperceptible.

As sug

gested above, the statement of one of these positions by the pleader was for the purpose of fixing the time at which the car was started. If the car was started at either one of the times, the negligence was the same, because all of the acts necessarily took place almost simultaneously while the plaintiff was in the act of alighting. The careless starting of the car while plaintiff was in the act of alighting was the negligence both alleged and proved. We are of the opinion that the finding of the jury that the plaintiff was standing with both feet on the steps of the car when it started did not negative the general verdict to the effect that the car was started while plaintiff was in the act of alighting from the car, and therefore does not change the cause of action. There was no finding that the plaintiff was not in the act of alighting from the car when it was started. The most that can be claimed for the special findings is that they are susceptible of that construction. "Where a special verdict is susceptible of two constructions, one of which will support the general verdict and the other will not, that construction will be given the special verdict which will support the general verdict." McCorkle v. Maliory, 30 Wash. 632, 71 Pac. 186. We think the court did not err in refusing to render judgment for defendant notwithstanding the general verdict.

When the plaintiff B. M. Grant was a witness, it developed upon his direct examination that he was commonly called "doctor." He also testified that, when his wife was injured, the conductor of the car asked him his name, and, in reply thereto, the witness handed the conductor a small handbill, containing his name, picture, location of his office, and an advertisement of his methods of treatment. On cross-examination counsel for defendant was permitted to ask the witness if he was a licensed practitioner, and if he had prescribed for his wife; and counsel for defendant was also permitted to introduce the handbill above mentioned in evidence, and question the witness concerning the same. We see no impropriety in this cross-examination. The jury were entitled to know who the witness was and the character of his business. Plaintiff contends that the object of the examination was to prejudice the witness before the jury; but we find nothing either in the examination or in the substance of the evidence in the record to justify a reversal upon this ground alone. There was certainly no abuse of discretion on the part of the trial court in respect to the cross-examination of this witness.

The judgment is therefore affirmed, without costs to either party.

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

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Whether an employé injured while operating a ripsaw was guilty of contributory negligence held, under the evidence, for the jury.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 1089-1142.] 2. SAME ASSUMPTION OF RISK QUESTION FOR JURY.

Whether an employé injured while operating a ripsaw, in consequence of his hand coming in contact therewith, on a co-employé jerking away the lumber attempted to be sawed, assumed the risk, held, under the evidence, for the jury.

[Ed. Note. For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 1068-1088.] 3. SAME-NEGLIGENCE OF MASTER-QUESTION FOR JURY.

In an action by an employé for injuries received, held, that the question of the negligence of the employer in placing the co-employé, who was 16 years of age and inexperienced, at work at the place, or in neglecting to properly instruct his co-employé how to do the work, or in failing to warn both the employé and the coemployé of the incidental danger, was for the jury.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 1044-1050.]

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

Action by James D. Cox, a minor, by Mrs. Kate Alden, guardian ad litem, against the Capitol Box Company. From a judgment for plaintiff, defendant appeals. Affirmed. R. S. Eskridge and Philip Tindall, for appellant. Govnor Teats, for respondent.

HADLEY, C. J. This is an action to recover damages for personal injuries. There was testimony to support the following facts: The defendant is a manufacturer of boxes, and among other things it makes grape boxes from veneer. In the process of making the grape boxes, it cuts two ventilators in each end of the veneer with a ripsaw. The ve neer is cut into strips from 16 to 18 inches in length, and of proper width for making into boxes. Several hundred of these strips are then tied into a bundle, and, with the strips standing on end, the bundle is from 16 to 18 inches high and of equal or greater length across the table. After they are tied up, the bundles are taken to a ripsaw table for the purpose of cutting the ventilators. The guide of the ripsaw table is placed at the proper distance from the saw, and, while the bundle stands upon the ends of the strips, it is pushed by the operator across the saw, which cuts the ventilators. All guards are removed from the saw, and it is left fully exposed; this being necessary in order to cut the slits for ventilating purposes. The saw is exposed above the table about an inch and a half or two inches, which is the depth of the slits cut in the veneer. Two persons are required to handle the bundles

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