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tify it.

The defect urged as fatal consists of the recital that "whereas an appeal is about to be taken to the Supreme Court," when, in fact, the appeal was taken to this It is contended that this does not identify the appeal, and that, therefore, the bond is no bond at all on this appeal.

It is true that it has been held that, where the recitals in the undertaking do not identify the particular appeal which it is intended to perfect, the undertaking is considered as totally void for any purpose, and not merely insufficient. Little v. Thatcher, 151 Cal. 559, 91 Pac. 321; Wadleigh v. Phelps, 147 Cal. 135, 81 Pac. 418; Estate of Heydenfeldt, 119 Cal. 346, 51 Pac. 543; Centerville, etc., Co. v. Bachtold, 109 Cal. 111, 41 Pac. 813; Home & Loan Ass'n v. Wilkins, 71 Cal. 626, 12 Pac. 799; Corcoran v. Desmond, 71 Cal. 101, 11 Pac. 815. In most of the above cases several appeals had been taken and but one bond given, which did not show which appeal it was intended to perfect. In Little v. Thatcher the bond identified a judgment as the subject-matter of the appeal, when, in fact, an order denying a motion for a new trial was the matter appealed from. In the case at bar the bond fully identifies the matter from which the appeal was taken. It was the judgment rendered in the case, and is completely identified by the recitals in the bond. Furthermore, it was a judgment from which an appeal could only be properly taken to this court; and, if the appeal should in form be taken to the Supreme Court the proceedings would still in law ultimately result in an appeal to this court; for in such case the Constitution provides for a transfer of the appeal to the proper court. Const. art. 6, § 4. It would still be the same appeal, and heard upon precisely the same record, and involve the same questions.

to further the determination of appeals upon their merits. The giving of the new bond before the hearing of the motion to dismiss amply protects the interests of the respondent.

As before indicated, this appeal is in its legal effect practically the same as if the notice of appeal had in fact been an appeal to the Supreme Court. Such an appeal would have effected an appeal to this court, because, as the judgment is one directly appealable only to this court, the Supreme Court, under the Constitution, would have transferred the appeal to this court. In either case, the appeal would be heard and determined by this court upon the same record, and the same question would be involved. In this regard the principle is analogous to that part of the decision in Wadleigh v. Phelps, supra, dealing with the appeals from the judgment and various nonappealable orders reviewable upon the appeal from the judgment. But one bond was given, and it was held that this supported the appeal from the judgment. Especially see concurring opinion by Mr. Justice Angellotti, 147 Cal. 142, 81 Pac. 418.

We do not think the facts of this case bring it within the rule of those cases where the subject-matter of the appeal is not identified by the bond; and in view of the remedial character of section 954, Code Civ. Proc., the doctrine of those cases should not be stretched to cover cases not fairly within them. In McAulay v. Tahoe Ice Co., 3 Cal. App. 642, 86 Pac. 912, cited by respondent, no new bond was filed or offered, and the question of the effect of giving a new and sufficient bond under section 954 did not arise.

The motion to dismiss the appeal should be denied, and it is so ordered.

We concur:
GAN, J.

COOPER, P. J.; KERRI

VAN DYKE v. SEATTLE ELECTRIC CO.
(Supreme Court of Washington. Nov. 16,
1909.)
APPEAL AND ERROR (§ 1004*)-REVIEW-VER-
DICT-EXCESSIVENESS.

Where plaintiff's evidence, showed a seri ous injury for which the verdict was hardly compensatory, while defendant's evidence showed that plaintiff was entitled to only nominal damages, the verdict affirmed by the trial court will not be set aside on appeal as excessive.

It is no objection to the sufficiency of this appeal as it now stands, with a good bond filed and approved before the hearing of this motion, to say that the sureties on the original undertaking would not be liable. That may be true, and the appeal supported by the new bond. It is the very purpose of section 954, Code Civ. Proc., to allow a sufficient bond to be given to supply the defects of an insufficient bond. Spreckels v. Spreckels, 114 Cal. 61, 45 Pac. 1022: Jarman v. Rea, 129 Cal. 157, 61 Pac. 790; Bay City Bldg. & Loan Ass'n v. Charles E. Broad, 128 Cal. 670, 61 Pac. 368. The entire law for the giving of any bond on appeal is statutory, and it is competent for the Legislature to regulate the matter as its wisdom may dictate. Spreckels v. Spreckels, supra. Section 954, Code Civ. Proc., allowing a new bond to be given when the original bond is insufficient, is remedial in its nature, and we think for that reason should James B. Howe and H. S. Elliott, for apreceive a liberal interpretation with a view pellant. Martin J. Lund, for respondent.

[Ed. Note.-For other cases, see Appeal and Error. Cent. Dig. §§ 3944-3947; Dec. Dig. § 1004.*]

Department 1. Appeal from Superior Court, King County; R. B. Albertson, Judge.

Action by John Van Dyke against the Seattle Electric Company. Judgment for plaintiff, and defendant appeals. Affirmed,

FULLERTON, J. The appellant owns and operates a street railway in the city of Seattle. The respondent while a passenger on one of its cars was injured, and brought this action to recover therefor. In the court below the jury returned a verdict in his favor for $3,700. The trial judge who heard the evidence refused to disturb the verdict, and judgment was entered in favor of the respondent for the sum named. The railway company appeals from the judgment, and assigns as error that the judgment is excessive. The respondent was injured by a collision between the car upon which he was riding and another car of the appellant company. He testified that the shock of the collision threw him forward from his seat to the floor; that in his fall he struck the corner of the seat in front of him, causing a slight abrasion of the skin at the point of contact, but otherwise there was no objective evidence of his injury; that after the collision he took a car and rode to the place where the car passed nearest his home, and walked the remainder of the way without assistance, a distance of four blocks; that during the night he was taken with severe pains in his side and back, preventing him from sleeping for the remainder of the night; that in the morning he went down to the heart of the city for the purpose of consulting the railway company's physician, again walking the distance from his home to the car line on the way down, and from the car line to his home on his return, without assistance or the aid of crutches; that after he reached home from his visit to the doctor he was obliged to take to his bed, from which he did. not rise until some three weeks thereafter, all the time suffering with severe pains in his side and back; that, when he left his bed, he was unable to walk without assistance or the use of crutches, and that this was his condition at the time of the trial. The respondent's family physician and two other physicians, called in consultation, testified that the respondent was suffering from an injury to his spine which could be caused and probably was caused by shock he received at the time of the accident; further testifying that such injuries were difficult to treat satisfactorily, and were usually more or less permanent. On the other hand, the appellant offered testimony tending to show that the defendant was shamming in a measure, that his injuries were neither permanent nor consequential; there being no se rious functional trouble of any character. The company's physician testified that his condition at no time departed from normal, and two physicians appointed by the court who examined him just before the trial testified that he had no serious trouble of any kind, and nothing that would be permanent or lasting.

the evidence, tends to show how hopelessly conflicting the evidence is, and how utterly impossible it is to reconcile the several statements of the witnesses on any common ground. If the respondent's evidence be true, he was severely injured, and the verdict, instead of being excessive, is hardly compensatory. On the other hand, if the appellant's version of his injury be correct, the verdict is grossly excessive, as the amount of the recovery should be but little more than nominal. Which of these conflicting versions is the correct one this court cannot discern from this record. The witnesses appear to be of equal repute, of equal intelligence, and, outside of the parties in interest, of equal disinterestedness. In such a case the advantage is all with the trier of fact who has the privilege of seeing the witnesses. He can observe their demeanor while on the stand, their manner of testifying, their frankness or lack of frankness; in fact, the many things that tend to discover truth that is hidden in the printed pages of the record. This advantage, it need not be added, was in this instance, with the jury and trial judge, and, since they have found with the respondent, we feel that we have no warrant to disturb their finding.

The judgment must be affirmed, and it is so ordered.

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Plaintiff, a head stone mason in charge of by the breaking of a defective derrick chain. a stone gang, was injured by the fall of a stone When chains needed repairs, or new ones were required, they were obtained from the blacksmith, frequently under plaintiff's direction, and at other times on motion of members of the crew. Plaintiff, on the day before the accident, in the absence of the general foreman, complained to H., the timekeeper and bookkeeper in character of the chain, and was told to go on charge of ordinary supplies, of the defective with the work, and that H. would see that it was fixed. H. had no authority as to tools and appliances used. Both H. and plaintiff had authority to employ men. Held, that H. was not the vice principal, and that his promise to repair did not excuse plaintiff on assuming the risk of using the chain in its defective condition. Servant, Cent. Dig. § 640; Dec. Dig. § 221.*

[Ed. Note. For other cases, see Master and

For other definitions, see Words and Phrases, vol. 8, pp. 7313-7316, 7827.]

Fullerton, J., dissenting.

Department 1. Appeal from from Superior Court, King County; Boyd J. Tallman, Judge.

Action by Henry Wolk against Grant

The foregoing, while but a brief outline of Smith and others, doing business as "Grant

Smith & Co." Judgment for plaintiff, and defendants appeal. Reversed and remanded. Robertson, Miller & Rosenhaupt, for appellants. Roberts, Battle, Hurlbert & Ten-bacco, overalls, etc.; that he had no part at nant, for respondent.

MORRIS, J. The appellants were engaged in building a sea wall between Seattle and Everett, for the Great Northern Railway Company, and respondent was in charge of one of the derricks that were used in lifting the stone and placing it in its proper place in the wall. On the day of respondent's injury, a chain used in wrapping the rock broke, letting the rock fall, and respondent was injured. The respondent first noticed that this chain was defective on the day previous to the accident, and the theory of the respondent is that on that day he called the attention of one Helliesen, who he alleges was the superintendent of appellants, to this defective chain, and that Hellieson agreed and promised to repair it or replace it with a new one, and, relying upon this promise, he continued at work until his injury, believing at the time of the injury that the defect had been repaired. The appellants denied any negligence, and set up assumption of risk and contributory negligence. Upon the trial plaintiff recovered, and the case is brought here with numerous assignments of The court's failure to sustain appellants' challenge to the sufficiency of the evidence and motion for judgment will be the only one we will consider.

Helliesen was only a timekeeper and book-
keeper; that in addition he had charge of the
supplies and furnished the men with to-
all in the doing of the work, nor any au-
thority as to the manner of its construction,
nor of the tools and appliances used; that,
in the absence of Armstrong, these matters
were in charge of the stone mason who act-
ed as boss or foreman over each derrick
crew. Armstrong says that Helliesen was
authorized by him to order any tools or
supplies needed by the derrickmen, which
were not at hand, but this was done because
he was the bookkeeper or clerk; that he had
no independent authority to do this except
as he was authorized by him upon the re-
quest of the derrickmen. It also appeared
that, in the absence of Armstrong, he had
been authorized to hire men when needed.
Respondent had the same authority. He re-
ceived $80 a month, while respondent was
paid $5 a day. The testimony of the other
members of the derrick crew was:
stone mason was the boss of each crew, and
when chains needed repair, or new
were required, they obtained them from the
blacksmith; that frequently respondent di-
rected them to do so; that at other times
they did so on their own motion.

It is apparent from the entire record that Helliesen was not a superintendent or foreman of the appellant, nor did he occupy any such relation to appellant as to make him a vice principal. He was nothing more than It appears from the evidence that the gen- a clerk in charge of the accounts and superal foreman in charge of the work was Mr. plies. He had nothing to do with either the Armstrong, and that in charge of each der- doing of the work, or the selection of aprick was a stone mason, whose duty it was pliances, which rested entirely under the dito select the stone, convey it by means of the rection of Armstrong, and in his absence derrick to the wall, and see that it was prop- respondent as foreman or head man of his erly placed therein. In this work he was as- derrick crew was his own boss. This court sisted by several men who were under his has gone as far as any court in defining directions. Respondent was the stone mason "vice principals"; but in each case the vice in charge of one of these derricks. His rela- principal was doing the work or performing tion to the work can best be described by the duty imposed by law upon the master, his own testimony. He says Armstrong was under the authority and direction of the the general foreman, but that he (respondent) master. Helliesen, who denied the conversawas supposed to look after the wall, that he tion with respondent, is not shown to have never was instructed there was any other had any such authority, nor to have been foreman, and that in the absence of Arm- given any such direction. He had nothing strong there was no one to give him orders. to do with the manner of conducting the He had general supervision over his der- work. He gave no directions. He selected rick crew. At the time of the accident, none of the appliances used; nor was he in Armstrong was not at the work, and respond- any way related to the work as to either ent says that, when he discovered the de- time, place, material, tools, direction, or any fective chain the day before the accident, he other relation generally assumed by the masspoke to Helliesen and told him he could not ter or his vice principal. The wages paid use that chain because some of the links the two men-$80 a month. to Helliesen and were worn and dangerous to use, that Hellie- $5 a day to respondent-is a circumstance, sen told him he could not give him another perhaps slight, but showing to some extent chain, but that he would get that one fixed, the relative positions occupied by them in and to "go ahead and work." He says, when this work. While, as between the conflicting asked who Helliesen was, that he was the statements of respondent and Helliesen as man who took Armstrong's place when to Helliesen's alleged promise to repair the Armstrong was absent. "He was timekeeper chain or supply a new one, we cannot decide, and foreman, the way I called him." All it being a contested question of fact to be

determine whether there is any evidence to warrant a finding that Helliesen was a vice principal or was clothed with any authority to bind the appellants upon his promise to repair, so as to bring the case within the rule contended for by respondent. We can find no such evidence. On the other hand, there does not appear to be any dispute but that the men in this crew took it upon themselves to procure their own chains from the blacksmith when needed, or to use coldshuts which had been provided by appellants for temporary use, and that they were at times directed to do so by respondent. Before the appellants could be charged with the acts of Helliesen, it must appear that he was acting within the scope of his authority, that he was doing something they had clothed him with apparent authority and direction to do, and there is no evidence in this case that he had any authority or direction at all over the appliances used in the work. The fact that respondent testified Helliesen was a foreman and gave directions did not furnish any evidence to submit that question to the jury, as such testimony was a mere conclusion of the respondent. Helliesen's authority on the work and the extent to which he could bind appellants must be determined from the relation he bore to the work, what was done by him, what was said by him, which was apparently authorized or acquiesced in by appellants, and not by the name or character that respondent might give him in his testimony. Agency, when it has become a triable issue, must be proved, as any other fact is proved. It is not proved by evidence that the person dealing with him thought he was an agent, or called him an agent, or that he assumed the authority of an agent.

Hence, assuming there was a promise to repair, it was not made by the master, nor any vice principal, nor could it bind the master. There is no dispute but that respondent had charge of the derrick and its crew, nor that the men, whenever they wanted a tool or a chain repaired, took it down to the blacksmith, or made use of one of the coldshuts. They did not require any authority or permission from any one to do this. The claims broke frequently, and the men as frequently had them repaired, and, except the testimony of respondent, the only evidence of any direction given the men was such as was given by respondent. Being of such a frequent occurrence, all the men knowing it, danger from a broken chain was one of the open dangers and ordinary risks of the work, and the rule of assumption of risk would apply, unless there was something to bring the case within some recognized exception, which the evidence in this case does not disclose. If there was any evidence that appellants had assigned the duty of inspecting chains and repairing them, or replacing them

with new ones, to Helliesen, then, while so engaged, whatever may have been his general employment, or by whatever rank or title his position was known, he would have been the representative of appellants. It is not a question of rank among the different employés; but it is a question of the character of the act, and the servant or employé who is delegated by the master to perform a duty which the law imposes upon the master is, in the performance of such duty, the alter ego of the master, and his act is the master's act. There is no such case before us, and the law cannot supply what the facts omit.

The court below should have sustained appellants' challenge to the evidence, and granted the motion for judgment. Its refusal to do so was error.

The judgment is reversed, and the cause remanded, with directions to dismiss.

RUDKIN, C. J., and CHADWICK and GOSE, JJ., concur.

FULLERTON, J. (dissenting). In my opinion there was error in the record requiring a new trial; but I am unable to concur in the conclusion that the evidence was insufficient to justify a verdict for the plaintiff. I therefore dissent.

HALLIDIE MACHINERY CO. v. HAYDENCOEUR D'ALENE IRR. CO. et al. (Supreme Court of Washington. Nov. 16, 1909.)

1. COSTS (§ 260*)-DISMISSAL OF APPEALDAMAGES FOR DELAY-RECORD.

Under Ballinger's Ann. Codes & St. § 6522 (Pierce's Code, § 1070), authorizing the Supreme Court to award damages when satisfied that an appeal has been taken for delay only, damages will not be granted on the dismissal of an appeal, where the only record filed was the motion to dismiss, and an affidavit showing that the appeal was perfected June 12, 1909, and that no subsequent steps had been taken by the appellants, the only injury to the appellees being lapse of time and annoyance incident to every appeal.

[Ed. Note.-For other cases, see Costs, Cent. Dig. §§ 983-993; Dec. Dig. § 260.*] 2. COSTS (§ 232*)-DISMISSAL OF APPEAL. On the dismissal of an appeal for want of prosecution, the court only allows the statutory costs, including the statutory attorney's fee.

[Ed. Note.-For other cases, see Costs, Cent. Dig. § 879; Dec. Dig. § 232.*]

3. COSTS (§ 247*)-DISMISSAL OF APPEALSPECIAL ALLOWANCE.

On dismissal of an appeal for want of prosecution, the court will not grant a special allowance for attendance on the motion to dismiss.

[Ed. Note.-For other cases, see Costs, Cent. Dig. § 958; Dec. Dig. § 247.*1

Department 1. Appeal from Superior Court, Spokane County.

Action by the Hallidie Machinery Com

pany against the Hayden-Coeur d'Alene Ir-sessment roll for street improvements to the rigation Company and others. Judgment for plaintiff, and defendants appeal. On motion to dismiss and for damages. Motion granted, without damages.

county treasurer, the complaint, which alleged that plaintiffs were the owners of the land adjacent and abutting on the improved street, was not objectionable for uncertainty as to description of their property; the complaint being an attack upon the assessment proceedings as a

B. B. Adams, for appellants. Post, Avery whole, and not as a lien upon a specified tract. & Higgins, for respondent.

PER CURIAM. Motion to dismiss the appeal, for affirmance of the judgment, and for damages upon the ground that the appeal has not been diligently prosecuted and was taken merely for delay.

The appellants confess the motion to dismiss and affirm, but resist the motion for damages. The only record before us is the motion and an affidavit showing the appeal was perfected June 12, 1909, and that no subsequent steps have been taken by appellants. The affidavit also sets forth that respondent has obligated itself to pay an at

[Ed. Note.-For other cases, see Municipal Corporations, Dec. Dig. § 513.*]

2. MUNICIPAL
2. MUNICIPAL CORPORATIONS (§
(§ 444*)
STREETS-ASSESSMENT FOR LOCAL IMPROVE-

MENTS.

Where no time or place was fixed for equalizing an assessment roll for street improvements, and the city council did not equalize the as241, § 40, and the roll included large sums which sessment as required by Laws 1907, p. 648, c. were not a part of the cost of improvements, and, while the initiatory steps to the improvement were taken both by resolution and ordinance, the ordinance was never published as required by Laws 1907, p. 663, c. 241, § 58, the proceedings were so irregular as to avoid the assessment so made.

[Ed. Note.-For other cases, see Municipal

torney fee of $100 on this appeal, that $40 Corporations, Dec. Dig. § 444.*]
must necessarily be expended in attendance
upon the court for the purpose of this mo-
tion, and that appellant has been damaged in
the sum of $200 by the annoyance, inconven-
ience, and delay of the appeal. Doubtless
every appeal is a matter of annoyance, in-
convenience, and delay to the prevailing par-
ty. The provision of the statute (Ballinger's
Ann. Codes & St. § 6522 [Pierce's Code,
1070]), authorizing this court to award dam-
ages when satisfied by the record that the
appeal was taken for delay only, presupposes
by its terms that the delay will be manifested
by the record itself. We have here no rec-
ord except the motion and affidavit. We
cannot assume, the only present fact being
no steps subsequent to the giving of notice
of appeal and filing bond, that the appeal
was taken for delay merely. Many reasons
might exist why further proceedings were not
had. We think therefore the record must

Department 1. Appeal from Superior
Court, Chehalis County; Mason Irwin, Judge.

Action by the Coats Shingle Company and the Polson Shingle Company, corporations, against the City of Hoquiam and J. A. Fairburn, treasurer of said city, to enjoin the collection of an assessment for street improvements. From a judgment for plaintiffs, defendants appealed. Affirmed.

Sidney Moor Heath and James P. H. Callahan, for appellants. C. W. Hodgdon and Morgan & Brewer, for respondents.

FULLERTON, J. The respondents brought this action against the city of Hoquiam to enjoin the collection of an assessment for a enjoin the collection of an assessment for a upon their property by that city. They statstreet improvement attempted to be imposed ed their cause of action as follows:

"Come now the plaintiffs above named, and

disclose something other than lapse of time for cause of action against the defendants al

and the annoyance incident to every appeal. It has not been the practice of this court upon dismissal of appeals to allow other than the statutory costs, which include an attorney's fee. We are not disposed to increase the fee so provided in the statute. Neither do we care to adopt a practice of Neither do we care to adopt a practice of granting a special allowance for attendance

upon the court.

The motion to dismiss and affirm is grant

ed; that for damages is denied.

lege:

"(1) That the Coats Shingle Company is under and by virtue of the laws of the state a corporation duly organized and existing of Washington, having its principal place of business in the city of Hoquiam, Chehalis county, Wash., and that it has paid its annual license fee due to the state of Washington for the year ending June 30, 1909, and that the Polson Shingle Company is a cor

poration duly organized and existing under and by virtue of the laws of the state of Washington, having its principal place of business at Hoquiam, in said county and

COATS SHINGLE CO. et al. v. CITY OF state, and that it has paid its annual license

HOQUIAM et al.

(Supreme Court of Washington. Nov. 16, 1909.)

1. MUNICIPAL CORPORATIONS ($513*) - IмPROVEMENTS INJUNCTION - COMPLAINT SUFFICIENCY.

fee due to the state of Washington for the year ending June 30, 1909.

"(2) That the city of Hoquiam is, and at all times herein mentioned was, a municipal corporation of the state of Washington, to In an action by abutting property owners wit, a city of the second class, duly organto enjoin a municipality from certifying an as-ized and existing under and by virtue of the

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