be answered. However, the decision in Na- Jed defendants were proceeding on the left side tional Union v. Keefe, 172 Ill. App. 101, and Tramblay v. Supreme Council C. B. Legion, 90 App. Div. 39, 85 N. Y. Supp. 613, seem to be in harmony with our conclusion. The judgment is affirmed. HOLCOMB, C. J., and FULLERTON, MACKINTOSH, and BRIDGES, JJ., concur. (113 Wash. 351) MCCREEDY et ux. v. FOURNIER et al. (No. 15994.) (Supreme Court of Washington. Dec. 11, 1920.) 1. Appeal and error 930(1)-Verdict resolves conflicts in evidence in favor of successful party. Where abundantly supported by the evidence, a verdict will be deemed to resolve conflicts in favor of the successful party. 2. Highways 184 (2)-Testimony as to condition of highway after accident admissible. of the road, testimony relative to the position of the overturned automobiles after the accident was admissible; there being testimony as to tracks on the left side of the road leading to the place of accident, thence to the resting place of defendants' car, as well as to the torn-up condition of the ground. 6. Evidence 359 (3)-Photographs admissible where conditions were practically the same. Where there was testimony that conditions on a road were practically the same at the time of taking pictures as of the accident, photographs of the place of the accident were properly admitted. 7. Trial 352(4)-Special interrogatories requested on theory insurance company not shown to be in the case was partially liable properly rejected. Where no insurance company appeared and there was nothing in the evidence as to the insurance, special interrogatories, requested on the theory that the insurance company was dent, were properly rejected. liable for only part of the results of the acci 8. Appeal and error 216(1)—Failure of trial court to define agent no ground for objection in absence of request. In an action for damages resulting when defendants' automobile collided with plaintiffs' motorcar, testimony by a witness, that on the morning after the accident he noticed zigzag In an action based on an automobile collitracks of an automobile driven on the left side sion, where it was claimed that the defendant of the road leading up to the immediate scene driving the automobile was the agent of the of the accident, was admissible, where it was other defendant, it appearing the car was jointplaintiffs' contention that defendants were driv-ly owned, the failure of the court, which ining on the left side of the road, notwithstand-structed the jury, that if defendants were both ing defendants' claim that other cars might in the car, and that the one who was driving have passed in the meantime; the witness tes- was the agent of the other, then both were tifying that there had been a slight rain set- equally responsible, to define the word "agent,” tling the dust, and that he did not see any is no ground for objection, on appeal; the lanother tracks, but noticed those tracks leading guage of the instruction being essentially that to the place of the accident, where plaintiffs' found in Rem. Code 1915, § 5562-33, where car was on its side. there was no request for an instruction defining the term "agent." 3. Evidence528 (2)-Medical testimony as to probable result of injury admissible. In an action for personal injuries, where plaintiff suffered a serious accident to one eye, necessitating an operation, testimony of an eye specialist that in about 50 per cent. of the cases the eye would later become inflamed and cause a sympathetic affection of the other eye was admissible. 4. Appeal and error 882 (8)-Defendants cannot complain of admission of medical testimony where their expert testified to substantially same facts. In a personal injury action where plaintiff suffered a severe injury to his right eye necessitating an operation, the admission of testimony by plaintiff's expert that inflammation would in about 50 per cent. of the cases result, which would affect the left eye, was not objectionable, where the defendants' own expert testified to practically the same facts. 9. Damages 127-In determining amount, court should consider present conditions. In determining whether an award of damages for personal injuries largely of a permanent character is excessive, the courts must to some extent take into consideration presentday conditions and factors which differ from those prevailing a few years earlier. Department 2. Appeal from Superior Court, King County; Boyd J. Tallman, Judge. Action by Warren R. McCreedy and wife against George Fournier and another. From a judgment for plaintiffs, defendants appeal. Affirmed. James B. Murphy and Ward C. Kumm, both of Seattle, for appellants. Stanley J. Padden, of Seattle, for respond 5. Highways184 (2)-Testimony as to rela-ents. tive position of overturned automobiles admissible. In an action for damages resulting from an automobile collision, where plaintiffs contend MITCHELL, J. Warren R. McCreedy and his wife brought this action for damages on account of personal injuries to both and for (194 P.) injuries to their automobile, occurring in a collision alleged to have been caused by the negligent operation by the defendants, George Fournier and Stanley Fournier, of their own automobile on a county highway in King county. There was a jury trial resulting in a verdict of $10,000 in favor of the plaintiffs. From the judgment on the verdict, the defendants have appealed. [1] The collision occurred shortly after 7 o'clock on the morning of September 2, 1919. The road, running east and west, was a well-improved graveled highway, the traveled portion of which was variously estimated at 15 to 20 feet in width. Respondents were going east, appellants west. As is usual in such cases, there is a sharp conflict in the proof of the respective parties as to most of the essential facts and surroundings of and at the time of the colision. However, it appears from the bulk of the testimony on both sides there was a foggy condition of the weather at that time, and especially at the place the accident happened. It is the contention of the respondents that the collision occurred well over on their right-hand side of the road; that for some distance they had been traveling on the right| of the center of the road, at 10 or 12 miles an hour, until, on seeing the approaching car, they slowed down to about 5 miles per hour and turned about as far to the right as the roadway permitted, when the collision occurred; that both headlights of their car were burning; that the appellants were traveling on the wrong side of the road, at a speed in excess of 30 miles an hour, and were using no light of any kind. There is abundant evidence, much of it from wholly disinterested witnesses, to support these contentions, and, as the verdict was in favor of the respondents, we accept these as established facts. and observed the continuation of the tracks of the automobile from the immediate scene of the collision and where the ground had been torn up, along the road to a point at which respondents' testimony shows appellants' car stopped after the collision. Further, counsel overlooks the fact that the proof he refers to, the passing of several automobiles, came from the appellants' witnesses after the witness whose testimony is complained of had been completed. The evidence was clearly admissible; its weight was for the jury. [3] It is claimed the court committed error in admitting, over objections, the testimony of Dr. Hawley, as to the future disability of Mr. McCreedy, who was so severely injured in the danger zone of the right eye that an operation including the stitching of the eye on the surface was necessary. Dr. Hawley is an eye specialist and performed the operation, and while he and a specialist called by the appellants both testified that the operation was entirely successful, it clearly appears the usefulness of the eye is nearly destroyed, permanently. The testimony objected to was an opinion by Dr. Hawley as to the danger or reasonable probability of sympathetic inflammation, technically known as "ophthalmia," in the left eye, with the resultant necessity of removing the right eye. The objection urged is that it left the jury to give damages for consequences that were contingent, speculative, or merely possible. While Dr. Hawley admitted the trouble might never happen, he testified that it did occur in more than half of the cases. Among other things, he testified: "Q. What is the probable result of the condition that exists in the eye as to taking this eye out? A. Sympathetic inflammation may arise. Q. In the other eye? A. Will arise. Q. Sympathetic inflammation in the other eye, And again he said: "I think it very apt to happen." We think the evidence was proper to go to the jury under the rule in the case of Gallamore v. Olympia, 34 Wash. 379, 75 Pac. 978; Holt v. School District No. 71, 102 Wash. 442, 173 Pac. 335. [2] It is claimed there was error in allow-is that what you mean? A. Yes, sir.” ing the witness for the respondents to testify, over objections, that about 8 o'clock that morning he approached the scene of the accident from the east (the same direction the appellants traveled) and noticed swerving zigzag tracks of an automobile driven on the left-hand side of the road, and that the tracks led up to the immediate scene of the accident. The objection urged is that such vital testimony should not have been allowed, because there was proof of the passing of several other automobiles after the collision occurred and prior to the witness reaching the scene. But in his argument counsel overlooks the fact that the witness testified positively that there had been a small mist of rain and the dust had been settled; that he did not see any other tracks on the road that attracted his attention; that he noticed those tracks leading to the scene of the acci-jured such as this would be removed in 90 per dent; that he traced the tracks to where respondents' car was on its right side of the road around which the ground was torn up, [4] In addition, appellants are in no position to complain in this respect, for the testimony of their own expert is to practically the same effect. Dr. Swift, a recent army surgeon and eye specialist, called by the appellants, testified that he examined Mr. McCreedy twice after the operation and after the removal of the stitches; that Dr. Hawley took exceeding good care of the case and got a nice result; that it was a very dangerous wound of the eye; and that in the army an eye in cent. of the cases to prevent sympathetic inflammation, while in civilian life his estimate of the reasonable probability of sympa Stillously refused to submit three requested forms of special verdicts, finding separately the respective amounts awarded as damages by reason of injuries to Mr. McCreedy, to his wife, and to their automobile, in the event the general verdict should be for the respondents. The avowed purpose of making the requests, as stated by counsel for appellants, in the absence of the jury, was that certain of the items only were covered by insurance and that thetic inflammation was 50 per cent. * * "Mr. Padden: And lose both eyes? A. And lose both eyes. Q. What would be necessary in that case, Doctor, to prevent the loss of both eyes? A. You couldn't. You have to take the eye out, but you wouldn't prevent it. Q. The injured eye? A. The injured eye would have to come out, but that might not prevent it. "Mr. Murphey: I think that is all." No objections to the instructions to the jury upon this point are presented by the appellants. error. "The defense was made on behalf of the insurance company as well as on behalf of the defendants in this action, representing both." But no insurance company appeared in the action, nor is there a word of evidence with regard to insurance. There was no error in refusing to submit the interrogatories to the jury. [8] The appellants are brothers and admitted they jointly owned the car they were using at the time of the accident. For months they had used it jointly going to and from their work, some times one and at other times the other driving it. They divided equally the expense of the upkeep and operation of the car, first paid for by either. [5] The respondents' witnesses were al- It appears that George Fournier was driving lowed to testify relative to the positions of at the time of the accident. There is evithe two overturned automobiles after the ac- dence, though disputed, that Stanley Fournier cident. It is claimed this was prejudicial was on the front seat with his brother. StanUnder the pleadings, there were isley procured and supplied the car with the sues as to the speed of the cars and whether or not the collision occurred on the side of the roadway. Much of respondents' testimony showed considerable disturbance of the surface of the road at the place of the collision, and that their automobile was overturned practically at the spot on its right side of the road, and that the zigzag tracks of an approaching auto on its wrong side of the road led directly to the point of the accident from whence the tracks of that car led off to the resting place of appellants' car. For these reasons, and for others from which legitimate inferences might well be drawn, the evidence was proper for the jury's consideration. gasoline it was using at that time, and he testified that on the trip he directed George to turn on the spotlight, and just before the accident inquired of his brother the reading of the speedometer. Among other things, the jury was instructed: of the collision were both riding in said au"If you find that the defendants at the time tomobile, and at the time of the collision, or immediately prior thereto, the Dodge automobile was being driven by one of the defendants, and that the other defendant exercised some control over the manner in which the automobile was being driven, or if you find that the other defendant who was driving the automobile was the agent of the other defendant, then the defendant who was driving the automobile and the other defendant were [6] It is claimed that photographs of the place at which the collision occurred were and are equally responsible, if you find that the improperly admitted in evidence. The photo-acts of the driver of the defendants' automobile graphs were made some time after the acwere the proximate cause of the collision." cident happened, and it is argued there had been changes in the surface of the road in the meantime. But counsel overlooks the fact that respondents' witnesses, one of whom was present at the time the photographs were taken, testified that the road and its surroundings were essentially the same at both dates; while the testimony as to a change in the roadway came later on in the trial from appellants' witnesses and amounted to nothing more than that there had been a scraping of the gravel on the road after the collision and after some rainfall. It is claimed on behalf of Stanley Fournier that the instruction is faulty in failing to define that which constitutes agency. There is no contention that the matter of agency is not involved in the case, but only that the court should have told the jury the meaning of the word "agent." The contention is too technical. We have no doubt that the jury clearly understood the meaning of the word for the purposes of the case. The language used is essentially that found in the statute Rem. Code 5562-33. The in[7] It is contended the trial court errone-struction complained of was given in Writing,' (194 P.) and, if a more specific instruction upon the subject was desired, it should have been requested, to be in a position to assign error. Zolawenski v. Aberdeen, 72 Wash. 95, 129 Pac. 1090. No such request was made. [9] On behalf of each appellant error is charged in the denial of his motion for a new trial. This raises no distinctive question of law or fact that we have not already disposed of, other than that the evidence is not sufficient to support the verdict and judgment, and that the verdict is excessive. There was abundant evidence to satisfy the jury in finding for the respondents, while the amount allowed them, under the facts in this case (which in this respect we need not set out), is amply warranted. In determining whether the verdict for personal injuries largely of a permanent character is excessive, we must, to some extent, take into consideration factors and standards greatly differing from those prevailing only a few years ago. Noyes v. Des Moines Club (Iowa) 170 N. W. 461, 3 A. L. R. 610, note. Judgment affirmed. 1 criminal charge of obtaining it from her by Whether a contractor constructing a dwelling on the cost plus basis, obtaining money from the owner by falsely representing that it was to be paid on brickwork done, was guilty of grand larceny under Rem. Code 1915, $ 2601, depended on whether he intended to deprive the owner of it and appropriate it to his own use without benefit to the owner, although the owner owed him more than the amount falsely obtained. 5. False pretenses 52-Accused held not entitled to charge on provision in larceny statute as to right of bailee, etc., to retain fees. In a prosecution where defendant contrac tor, working on cost plus basis, was charged the amount that he had paid to a third perwith obtaining money by falsely representing son for work done, held that defendant was not entitled to instructions that it would not be larceny for any bailee, etc., to retain his reasonable collection fee or charges; accused not HOLCOMB, C. J., and MOUNT, MAIN, and pretending to receive any part of the amount TOLMAN, JJ., concur. (113 Wash. 391) STATE v. COOK. (No. 15982.) (Supreme Court of Washington. Dec. 13, 1920.) I. False pretenses 26-Information held to sufficiently show relationship whereby accused obtained money. An information charging that accused represented that there was money due him on account of expense incurred for work and labor performed by another in the laying of bricks in a certain dweling house, etc., held to sufficiently show the relationship between accused and the complaining witness by virtue of which accused had a right to demand and receive from her a sum paid to the third person; accused by false representations obtaining more than he paid the third person. 2. False pretenses 26—Information not required to negative fact that prosecuting witness owed money to accused. An information, alleging that accused obtained money from prosecuting witness by false pretenses, was not required to negative the owing by the prosecuting witness to accused of an amount in excess of that which he obtained by false representations. 3. False pretenses 38-Interest of wife in community property sufficient to support charge of obtaining it from her. Wife's interest in community property, consisting of a bank account in the name of herself and husband, against which each was authorized to check, was such as to support a obtained from the owner in a trust capacity, but under such circumstances to lead her to believe that he was receiving it for the purpose of reimbursing himself in the exact amount he had paid to the third person. 6. Criminal law 957(2)-Verdict cannot be impeached by statements of jurors. A verdict could not be impeached by affidavits of jurors that they believed accused was not guilty, and that a statement in the jury room influenced their minds in rendering a verdict of guilty, and that there were certain extraneous matters brought into the trial and charges made which were not explained or proven, which had effect upon their minds. Department 1. Appeal from Superior Court, King County; Calvin S. Hall, Judge. Chester A. Cook was convicted of grand larceny, and he appeals. Affirmed. R. W. Huntoon and Tucker & Hyland, all of Seattle, for appellant. Fred C. Brown and John A. Frater, both of Seattle, for the State. PARKER, J. The defendant, Cook, was in the superior court for King county, found by a jury guilty of the crime of grand larceny, committed by false representations, upon an information charging as follows: "He, said Chester A. Cook, in the county of King, state of Washington, on the 30th day of September, A. D. 1918, did then and there willfully, unlawfully, falsely, designedly, fraudulently, and feloniously pretend and represent to one Lizzie E. Wiles that there was due and owing to said Chester A. Cook, by said Lizzie E. Wiles, for and on account of expense incur For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes The defendant Jones "did falsely pretend to one John T. Carr that he, the said Washington Jones, was one Walter Kirby, by means of which said false pretense the said Washington Jones did then and there, unlawfully, knowingly, and designedly, fraudulently obtain from the said John T. Carr, 16 $5 bills of the currency of the United States. The indictment wholly failed to state the relationship of the parties, or any possible reason for the payment of the money by the prosecuting witness to the defendant, other than the fact that the defendant pretended to be John T. Carr. Holding that the indictment was defective, the Chief Justice, speaking for the court, said: red for work and labor performed by one W. Langelaar and helper in the laying of bricks upon and in that certain dwelling house of said Lizzie E. Wiles located at No. 2439 Warren street, in the city of Seattle, said county and state, then and there being constructed by said Chester A. Cook for and on behalf of said Lizzie E. Wiles, the sum of $103.10, and the said Lizzie E. Wiles, then and there believing the false pretenses and representations so made by said Chester A. Cook, and relying thereon, and being then and there deceived thereby, was then and there induced by reason thereof to deliver, and did then and there deliver, to said Chester A. Cook the sum of $103.10, in lawful money of the United States, the property of said Lizzie E. Wiles, whereas in truth and in fact, there was then and there due and owing to said Chester A. Cook on ac- "The indictment should have set forth what count of expense incurred for work and labor relations were established between Kirby and performed by one W. Langelaar and helper in Carr, by virtue of which Kirby had a right to the laying of bricks upon and in that certain demand and receive from Carr the money or dwelling house of said Lizzie E. Wiles located other thing belonging to him which was in the at No. 2439 Warren street, in the city of Seat-possession of Carr, and e converso the duty tle, said county and state, then and there be- of Carr arising from such relations to deliver ing constructed by said Chester A. Cook for the money or other thing to Kirby, or if there and on behalf of said Lizzie E. Wiles, only the was no business relations between them, then sum of $73.10, and no more, and said Chester some special reason why Kirby could have proA. Cook did then and there willfully, unlaw-cured from Carr the amount alleged." fully, fraudulently, and feloniously receive and obtain the sum of $30, in lawful money of the United States, the property of said Lizzie E. Wiles, by means of said false and fraudulent pretenses and representations, with intent then and there to deprive and defraud said Lizzie E. Wiles thereof; whereas, in truth and in fact, said pretenses and representations, then and there so made by said Chester A. Cook to said Lizzie E. Wiles, were in all respects utterly false and untrue, all as he, said Chester A. Cook, then and there well knew." From a judgment and sentence rendered by the superior court against the defendant upon the verdict of the jury, he has appealed to this court. [1, 2] We think the information before us is not subject to such criticism. Its charging language, it seems to us, sufficiently shows the relationship between appellant and Mrs. Wiles by virtue of which appellant had a right to demand and receive from her a sum equal to that which he had actually paid to Langelaar for the brickwork done by him in the construction of the house at the instance of appellant, who was building the house for Mrs. Wiles. It is also argued that the information is defective, in that it fails to negative the owing by Mrs. Wiles to appellant of the $30 which he is charged with obtaining from her by the alleged false representation. If this It is first contended by counsel for appel- can become a defense under any circumlant that the trial court erred in overruling stances (which we do not now decide), it is their challenge to the sufficiency of the infor- we think, one which is not required to be mation, made at the commencement of the negatived by the allegations of the informatrial in the form of an objection to the intro- tion, since there is no exception or proviso in duction of any evidence by the prosecution the section of the statute defining the crime upon the ground that the information fails to charged in terms mentioning any such de state facts constituting a crime. It is argued, fense as a limitation upon the words defining in substance, as we understand counsel, that the crime. We conclude that the information the information is fatally defective, in that it sufficiently charges facts constituting a crime. fails to sufficiently state the terms of the [3] It is contended that the trial court erred building contract between appellant and Mrs. in refusing an instruction directing the jury Wiles, so as to show what opportunity, under to return a verdict in favor of appellant. The the terms of the contract, appellant would evidence shows that the contract for the have to induce payment to him of money by building of the house was between the comMrs. Wiles by his making fraudulent represen-munity, consisting of Mr. and Mrs. Wiles, tations to her as to what sums were due him on account of money paid out by him in the prose cution of the work. The case of Jones v. State, 22 Fla. 532, cited and relied upon by counsel for appellant, is illustrative of the principle invoked, and comes as near lending support to their contention as any authority cited by them. In that case it was charged and appellant, the property being their community property; that the contract was that appellant should build the house, furnishing the material and work, and as compensation therefor receive from the Wileses, the actual cost of the material and work to him, and 10 per cent. additional; that payments were made from time to time as the work progress |