Opinion Per MOUNT, J. [83 Wash. tracts in question were executed a few months later. These contracts recite that the mill companies may connect with the pipes of the water company and use a sufficient amount of water to run their mills for a period of forty-nine years. The evidence clearly shows, we think, that these contracts and deed were a part of one and the same transaction, and that one was the consideration for the other. The evidence also shows that it was the intention of all the parties at the time this deed and these contracts were made that the mill companies should reserve sufficient water for the use of their mills at all times during the period named. The mills to which the water was conveyed and the land upon which the water was used by the mill companies were not transferred to the water company. The deed conveyed simply a tract of land at the headgates of the creek where the water was taken, and a right of way to the town of Raymond. We are satisfied, upon the whole case, that the public service commission in making its last order vacating the first order was acting within its discretion; that there is nothing in the case to justify the conclusion that this discretion was abused; and we are satisfied, therefore, that the trial court was in error in setting aside the last order and reinstating the first order. What we have said above disposes of the case upon its merits, and there is no necessity to discuss other questions presented in the briefs. The judgment is therefore reversed, and the writ ordered dismissed. CROW, C. J., MAIN, FULLERTON, and ELLIS, JJ., concur. [No. 11215. En Banc. January 5, 1915.] JENNIE I. PIERCE, Plaintiff, v. SEATTLE ELECTRIC APPEAL-REHEARING - SCOPE MATTERS NOT PREVIOUSLY URGED. Where, pending an appeal, the supreme court, in another case, announced a new rule of practice whereby, when a new trial had been granted upon some specific ground, on appeal therefrom the respondent might sustain the order by urging all the grounds covered in his motion, the supreme court will, on granting a rehearing, give respondent the advantage of applying the new rule, although not urged in the briefs on appeal or on oral argument; it appearing that the new rule had not been announced when the briefs were prepared, and was not known to counsel when the cause was first argued, having been promulgated for but a short time. DAMAGES - PERSONAL INJURIES-EVIDENCE-EARNING CAPACITY— PROSPECTIVE PROFITS-ADMISSIBILITY. In an action for personal injuries sustained by a woman who was selling hair goods, evidence that she contemplated opening a place for the sale of hair goods, is competent on an issue as to her loss of earning capacity, as tending to show her ability to work and transact business, and is not objectionable as showing anticipated profits, where no specific statement was made as to amount of anticipated profits lost. IMPEACHMENT SCOPE. WITNESSES REDIRECT EXAMINATION Where, on laying the ground for the impeachment of a witness, the witness denied making any such statement as was imputed to her, it is not prejudicial error to refuse to allow the witness, on redirect at that time, to detail a conversation held at the time in question; especially where, after the direct impeachment of the witness, she was not called in rebuttal to give her version of the matter, and no excuse was given for failing to recall her. RELEASE-FRAUD - BURDEN OF PROOF INSTRUCTIONS. Where one of the defenses in a personal injury case was a release and discharge, alleged by plaintiff to be procured by fraud, a general instruction that the burden of proving the affirmative defenses was upon the defendant, is not misleading or error, where, as to this particular defense, the jury was instructed that the burden was upon the plaintiff to overcome the defendant's prima facie case by evidence that was "clear, strong, satisfactory, and convincing." 'Reported in 145 Pac. 228. [83 Wash. Opinion Per CROW, C. J. SAME FRAUD-MATTERS OF OPINION-QUESTION FOR JURY. Notwithstanding that statements of physicians to the effect that plaintiff would probably recover in a few weeks were matters of opinion, a finding that a release was induced by fraud is a question for the jury, where there was other evidence to the effect that plaintiff was further induced by statements that the release was only a receipt for the money paid, to be applied on account in event her injuries were permanent. Cross-appeals from a judgment of the superior court for King county, Smith, J., entered January 7, 1913, granting a new trial after the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a passenger in alighting from a street car. Reversed on plaintiff's appeal. Walter S. Fulton and Arthur E. Griffin, for plaintiff. James B. Howe and A. J. Falknor, for defendants. ON REHEARING. CROW, C. J.-A rehearing has been granted in this case, but a restatement of the issues and facts is unnecessary. The questions considered on the former hearing were (1) whether the facts were sufficient to sustain the verdict, and (2) whether the verdict, if allowed to stand, should be reduced. Our decision was against defendant's contention on both of these propositions. Pierce v. Seattle Elec. Co., 78 Wash. 167, 138 Pac. 666. To these rulings we now adhere. The plaintiff has appealed from an order granting a new trial, and the defendant has appealed from an order denying its motion for judgment notwithstanding the verdict. Both parties having appealed, we will avoid confusion by alluding to them as plaintiff and defendant. The questions to be decided at this time are, (1) whether we will consider additional assignments of error now presented for the first time by the defendant in support of its motion for a new trial, and (2) if so, whether such additional assignments disclose error of law sufficient to necessitate a new trial. Jan. 1915] Opinion Per CROW, C. J. While the appeal in this case was pending, this court in Rochester v. Seattle, Renton & Southern R. Co., 75 Wash. 559, 135 Pac. 209, announced a new rule of practice, holding that, where a new trial had been granted upon some specific ground, and the adverse party had appealed, the respondent might sustain the order by urging all the grounds covered by his motion; so that he would not thereafter be put to the necessity of further proceedings in the court below, or another appeal upon the same record. We there said: "The correct rule of practice is now announced to be that, where, upon the consideration of a motion for new trial, the trial court enters an order granting a motion upon a specific ground or for a specific reason stated, and the adverse party appeals, the party seeking to sustain the order may urge in this court all the grounds which were covered by his motion, and is not limited to the specific ground or reason upon which the trial court based the order. A second appeal will not be entertained. However, to apply this rule to the present case would be unjust, since the practice here followed is in accordance with the previous holdings of this court. We will therefore consider this case upon its merits." Our decision in that case was handed down on October 2, 1913. This case was first heard in this court on November 6, 1913, and was decided on February 16, 1914. Plaintiff insists that defendant should not be permitted to present additional assignments, as it had notice of the change in our rule of practice in ample time to act under it before or at the time of the original argument, or while the case was being considered by this court; that, having failed to do so, and having allowed an opinion to be filed, it cannot raise new questions by petition for rehearing or upon rehearing. Defendant proceeded in strict accord with the settled practice as it existed prior to the decision in the Rochester case. Counsel for the defendant frankly say that the decision had not been called to their attention at the time this case was first argued. Opinion Per CROW, C. J. [83 Wash. We are not disposed to make technical application of any rule which does not touch the substantive law of a case, especially where it has been so recently announced and there is no showing of bad faith. To bind a litigant in a given case where the court, in the same case, overlooked the fact that its changed practice might apply, might operate as a denial of justice. We would arbitrarily cut off a right which an appellant had at the time his appeal was taken. It is no answer to say that defendant did not urge its right in its former brief, or by a supplemental brief. It was not bound to do so, and is entitled to be heard now unless we are prepared to hold that it is fatal to a litigant to assume that the court will decide in its favor upon the question that is before the court. This would be to say that appeals are not prosecuted with an earnest belief that the court will decide in favor of the appellant. There may be some such appeals. If so, they are the exception and not the rule. The object of all lawsuits is to arrive at the ultimate truth and do justice. Rules are made to promote justice, not to defeat it. Nor do we think that the right to be heard should be denied under the many decisions cited, holding that the court will not consider matters urged for the first time on petition for rehearing. To so hold, would be to say that the other grounds of the motion for a new trial should have been argued in the defendant's brief, when, under the rule as it existed at the time the brief was prepared, we would not have considered them. Plaintiff's objection to hearing the additional assignments of error now predicated upon the grounds of the motion for a new trial not considered or impliedly overruled by the court below, is overruled. Plaintiff, as a witness in her own behalf, was interrogated and testified, in part, as follows: "Q. What business were you in in Colorado? A. I had a hair dressing establishment. Q. For how long a time did you conduct a hair dressing establishment? A. About four years. Mr. Falknor: I object to that as immaterial. By |