(182 P.) and prepared and published data and articles [ In the light of all of the facts which have in the newspapers generally with reference been found by the trial court, and which are thereto; that various civic organizations took up and discussed the matter of the bond issue; that the newspapers published in said district, of which there were three dailies having a large circulation among the residents and electors of the district, began as early as May 1st, and continued until the day of the election, to print and publish almost daily many news articles and editorials of and concerning the proposed bond issue and the election to be held with reference to the same, all of which published articles referred to and called the attention of the voters to the date of such special election, and advised and urged the voters to register and vote at such election. And the court further found: "That by reason of the several meetings of the electors of said school district held as here in before set forth, and by reason of the articles and editorials published in the several newspapers in the city of Bellingham, in said school district, between May 1, 1919, and May 24, 1919, and widely and extensively circulated among the electors of said school district, all of the electors of said Bellingham school district No. 301 were advised of and had notice of the proposed special election to be held in said school district on May 24, 1919, for the purpose of determining whether said school district should issue bonds in the aggregate amount of $150,000 for the purposes as hereinbefore set forth, and that the electors of said school district, by reason of the said meetings and the said publication of the said articles in the several newspapers as hereinbefore set forth, had greater notice of the said election to be held on May 24, 1919, and the proposed issuance of bonds by said school district to be voted on at said election, than said electors would have had by the publication of any official notice of such election, and that no elector of said school district was denied the privilege of voting at such special election for want of notice of such special election, and that the result of said special election would not have been different had any other or different official notice of such election been published by the board of directors of said school district for any greater length of time than the official notice of such election published by and under the direction of the board of directors of such school district." not disputed, we are constrained to hold that this case falls squarely within the rule laid down in Rands v. Clarke County, 79 Wash. 152, 139 Pac. 1090. In that case the previous decisions of this court upon the subject of the giving of notice of an election, either general or special, were collated and discussed, and the rule was there approved and adopted which had been laid down as early as the case of Seymour v. Tacoma, 6 Wash. 427, 33 Pac. 1059, to the effect that the requirements of a statute, such as the one now under consideration, providing for the giving of notice of an election, are directory rather than mandatory, and notwithstanding a defective or improperly published notice the election will be held valid, unless the statute It itself declares that the election shall be vold HOLCOMB, C. J., and FULLERTON, MAIN, MACKINTOSH, BRIDGES, MOUNT, MITCHELL, and PARKER, JJ., concur. (107. Wash. 493) A negligent act, to be the proximate cause of the injury, must have been such that without it the injury would not have happened; it not being sufficient that it merely contributed to the injury. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Proximate Cause.] 2. MUNICIPAL CORPORATIONS 822(5)—USE OF SIDEWALK-ACTIONS FOR INJURIES-REQUESTED INSTRUCTION. In an action for injuries to a pedestrian resulting from collision of two automobiles, where the two drivers and a merchant who had piled boxes on the sidewalk at the street intersection were joined as defendants, and the evidence that the boxes contributed to the injury was unsatisfactory, it was error to refuse to give requested, instruction that the merchant would not be liable if the negligence of the drivers was sufficient to have produced the accident without the concurrence of the merchant's negligence. Department 1. 6 feet, extending along the curb continuously, except that there was a space left open at the corner for the passage of pedestrians along each street. Under these conditions, Wilson, approaching from the west, turned his machine into Western avenue (as to whether or not he cut the corner in so doing there is a dispute), and immediately came into collision with the Ford car driven by Stereos, which had been traveling 2% or 3 feet from the westerly or right-hand curb on Western avenue. In attempting to avoid the collision, or deflected by the collision, the Ford car driven by Stereos turned from its course and ran across to the southeast corner of the intersection, up onto the curb, and jammed respondent against the lamp post, fracturing his left leg so that it had to be amputated below the knee. Damages were claimed against Stereos (and wife) upon the ground that he was negligent and reckless in driving his car at a high, dangerous, and unlawful rate of speed; against Wilson (and wife) upon the ground that he was driving at an illegal and excessive rate of speed, and because he was cutting across the corner of the intersection, making a short, sharp turn, and unlawfully intersect Appeal from Superior Court, King County; ing the course of the Stereos car; and John B. Davidson, Judge. Action by J. B. Ross against Louis Stereos, Smith & Bloxom, and others. Judgment for the plaintiff against all defendants, and Smith & Bloxom appeal. Reversed and remanded as to the appellant. Peters & Powell, of Seattle, for appellant. Henry W. Pennock and James R. Gates, both of Seattle, for respondent. TOLMAN, J. Respondent brought this action to recover for personal injuries sustained by him, alleging and proving substantially the following facts: At the time of the accident, which occurred at the intersection of Madison street and Western avenue, in the city of Seattle, respondent stood on the sidewalk at the southeast corner of the intersection of the streets mentioned, engaged in conversation with friends. A Ford automobile, owned and driven by defendant Stereos, came down Western avenue from the north, at a speed estimated all the way from 12 to 35 miles per hour. At the same time an Overland car, owned and driven by defendant Wilson, came up Madison street from the waterfront, going at a speed of from 12 to 20 miles per hour. At the northwest corner of the intersection of these streets were the premises occupied by appellant, wherein it carried on a commission business, handling produce of various sorts. On the sidewalk, both on the Western avenue and Madison street fronts, were piled boxes and crates of fruits and vegetables, to a height of 4 to against appellant "that the collision between the automobile driven by the defendant Louis Stereos and that driven by the defendant Benjamin Wilson, and the consequent injury to plaintiff, were the natural and probable result of the act of the defendant Smith & Bloxom in maintaining an encroachment on said streets whereby the driv ers of vehicles approaching each other in the manner aforesaid were deprived of the usual view to be obtained across the sidewalk space; that the unlawful and negligent obstruction of the view by defendant in the manner aforesaid accentuated the negligence of the defendants Louis Stereos and Benjamin Wilson and contributed directly to and caused the injury to plaintiff." From a verdict and judgment thereon against each and all of the defendants, appellant Smith & Bloxom alone appeals. It is first urged that there was no substantial evidence to the effect that the boxes piled in front of appellant's premises had anything to do with the cause of the accident. We have carefully examined the evidence, and while it is by no means clear or satisfactory, yet defendant Stereos did testify that the boxes obstructed his view, and the question thus became one of fact for the jury. Were the principles of law applicable clear. ly given to the jury in the instructions of the court? The court instructed: "While there can be but one recovery of damages for an injury, the law holds all those whose negligent acts directly contributed or united in causing the injury liable both jointly and severally to the person injured. I instruct For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (182 P.) you that, if you shall find from a fair preponderance of the evidence that the plaintiff was injured as a proximate result of the concurrent or combined negligence of two or more of the defendants, and that the defendants whose acts of negligence so concurred or combined, in the exercise of ordinary care and prudence, should have foreseen that an injury would naturally and probably have resulted from their negli gence, then all defendants so contributing to plaintiff's injury are jointly and severally liable." This instruction, we think, fairly states the law, as far as it goes. But in a case such as this, where three defendants were charged with concurring negligent acts, each charged to be the proximate cause of the injury, and where each appeared separately and engaged in defending himself by attempting to show negligence on the part of the other, was this enough? Appellant requested instructions in part as follows: "In the present case, if you should find that the premises of the defendant Smith & Bloxom were kept in a manner so as to be an unlawful obstruction to the view of the defendants driving their automobiles at these street intersections, and yet you should find that the manner in which the defendants operated their automobiles or either of them was such in itself as to be sufficient to produce this collision and injury to the plaintiff, without the concurrence of any obstruction on the defendant Smith & Bloxom's premises, then I charge you that you could not hold Smith & Bloxom liable in this case, because their negligence, if any, would not have been the proximate or efficient cause." [1] The act, to be the proximate cause of the injury, must have been such that without it the injury would not have happened. 29 Cyc. 459. "The defendant may have been negligent and the plaintiff may have suffered injury, and a causal connection between the two may have been proved; but obviously this is not enough, for there are other causes which have contributed to produce the loss or damage. The essential point in law is that the connection must be proved to be necessary; the negligence must be a cause but for which the injury would not have been suffered." 1 Sedgwick, Damages (9th Ed.) 199. This principle is clearly recognized in Hellan v. Supply Laundry Co., 94 Wash. 683, 163 Pac. 9, where it is said: "Respondent further argues that the accident would not have happened had Corkum stopped his car, or had he been running at a lawful rate of speed. This may be conceded. But it is equally true that, notwithstanding his failure to stop and notwithstanding his excessive speed, no accident would have happened had respondent's truck been stopped, or had it been running at a lawful rate of speed, or had it even kept to the right side of the intersection and the right side of the street.” When it is borne in mind that the Hellan Case was proceeding to trial against one defendant only, and no question of instructions was involved, but only the question of whether or not the court could determine as a matter of law whose negligence was the proximate cause of the injury, it will be seen that there is nothing in that case out of harmony with the rule hereinabove stated, and that the case as a whole supports the rule. This rule was also clearly recognized in Bullis v. Ball, 98 Wash. 342, 167 Pac. 942, where this court approved an instruction which told the jury that it must find that the accident would not have happened without the act complained of, before it could find such act to be the proximate cause. Nor do we think this court has ever denied the rule where, as here, it would be applicable. We have carefully examined all of the cases cited by respondent and find nothing which seems to militate against the rule, except, possibly, some language in the case of Jaquith v. Worden, 73 Wash. 349, 132 Pac. 33, 48 L. R. A. (N. S.) 827. When the facts in that case are examined, it clearly appears that the "but for which" doctrine would not be there applicable to the extent that it is here, because there the acts of each of the defendants combined to cause the accident, and without the act of negligence of each no accident could have occurred. In discussing the requested instruction thought to be based upon the "but for which" rule, which the trial court had refused to give, the court there said: "We think there was no error in this respect. Assuming the negligence of the Murphys, it is obvious that the concurring negligence of all the parties caused the injury. The standing machine was harmless until it was struck by the machine of these appellants. When these agencies met, the one active, the other passive, a new condition was created, which culminated in the respondent's injury." But whether or not the court then had in mind the "but for which" doctrine, it approved in that same case an instruction given on behalf of appellant Murphy in the following language: "If you believe from a fair preponderance of the evidence that the accident and injury to the plaintiff occurred by reason of negligence on the part of the defendant Wade, and that the defendant Edward D. Murphy was also negligent, either by his own act or by the act of the defendant Floyd B. Murphy, done or performed with his authority, expressed or implied, and that but for the negligent act of the defendants Murphy the accident would not have occurred,, then and in that event you should find a verdict against all of the defendants." (The italics we have supplied for this occasion.) This doctrine is generally recognized in other states. Strojny v. Griffin Wheel Co., 116 Ill. App. 550; Johnson v. Northwestern Tel. Exch. Co., 48 Minn. 433, 51 N. W. 225; 29 Cyc. 489, and eases there cited. [2] The nature of the negligence charged as against appellant as compared with the negligence charged against the other defendants, the uncertain and unsatisfactory nature of the testimony tending to show that the act of appellant in piling boxes upon the sidewalk entered into the matter at all, and the conflicting interests of the several defendants, all tend to make this peculiarly a case in which the attention of the jury should have been directly and squarely called to the rule of law which we have been discussing; and proper instructions upon that subject having been requested, it was error to refuse to give them. The judgment, as to the appellant only, is reversed, and the cause remanded for a new trial. HOLCOMB, C. J., and MACKINTOSH, MAIN, and MITCHELL, JJ., concur. (107 Wash. 688) STATE v. EMONDS. (No. 15236.) (Supreme Court of Washington. July 29, 1919.) W. G. Emonds was convicted of issuing a prescription for intoxicating liquor after he had been twice convicted of unlawfully issuing such prescriptions, and he appeals. Affirmed. both of Seattle, for appellant. Fred C. Brown and T. H. Patterson, both of Seattle, for the State. licensed physician, was charged by the inMAIN, J. The defendant, a regularly formation with the crime of issuing a prescription for intoxicating liquor after he had been twice convicted of unlawfully issuing such prescriptions. The trial resulted in a verdict of guilty. From the judgment enter ed on the verdict the appeal is prosecuted. Section 8 of initiative measure No. 3, Laws of 1915, p. 6, among other things, provides that it shall be unlawful for a physician, after he has been convicted a second time of a violation of any of the provisions of the act, to thereafter write any prescription for the furnishing, delivery, or sale of intoxicating liquor. Prior to being charged in this case the appellant had been convicted three times of issuing prescriptions for intoxicating liquor 1. CONSTITUTIONAL LAW 38-VALIDITY OF when he had no good reason to believe that STATUTE. A court cannot declare a legislative act invalid unless it offends some constitutional provision. 2. INTOXICATING LIQUORS 15-ILLEGAL I8- 3. CRIMINAL LAW 822(1)-INSTRUCTIONS- A conviction will not be reversed by reason of an incorrect statement of law in an instruction, where it is plain that the jury could not have been misled thereby, viewing the instructions as a whole. the persons to whom such prescriptions were issued were actually sick and that the liquor was required as a medicine. The appellant first claims that the legislative power of the state, whether by initiative measure or an act passed by the Legislature, could not deprive a regularly licensed physi cian of the right or privilege of prescribing intoxicating liquor as a medicine, if he be lieved the patient's condition required it. It is admitted that for such offenses as that with which the appellant is here charged it would have been proper to have deprived him of the right to practice medicine entirely. [1, 2] No constitutional provision is called to our attention which it is claimed the law here assailed violates. No authority has been presented which holds that the court may declare a legislative act invalid when it does not offend against some constitutional provision. The limitations upon the legislative power must be found, if at all, in constitutional enactments, and not in the judgment or discretion of the courts. The law complained of was a valid exercise of legislative power. [3] The appellant also objects to an instruction given by the trial court in submitting the cause to the jury, wherein it was said that, if the accused had been twice convicted under the statutes relating to intoxicating liquor, it would be unlawful for him to issue prescriptions. The objection to this Appeal from Superior Court, King County; instruction is that it did not limit his right to A. W. Frater, Judge. issue a prescription for intoxicating liquor For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (182 P.) but was broad enough to include any prescription. J. P. Ball and Wm. T. C. Ball, both of Seattle, for appellants. Daniel T. Cross, of Ephrata, and Jones & Riddell, of Seattle, for respondents. MACKINTOSH, J. The respondents, Zittel and Holzkamp, and appellant Meyer, by an oral agreement, purchased lands in Grant county for their joint account. The respond While the instruction is not a correct statement of the law it nevertheless was not prejudicial. In other instructions the jury were specifically and directly told that before the accused could be convicted in this action it was necessary that the evidence should show that he had issued a prescription for intoxicating liquor after having been twice con-ents were to furnish the money to make the victed of violation of the law relating to the issuance of prescriptions for intoxicating liquor. initial payments and take title to the property, and Meyer was, within one year thereafter, to pay to them the portion of the purchase price corresponding to such interest as he might desire in the lands. Meyer was to negotiate the purchase of the property, and under this agreement various tracts were acquired. Through sundry and divers manip The instructions as a whole stated the law correctly, and the error complained of does not constitute reversible error. It is plain that the jury could not have been misled by the erroneous general statement of the law which is criticized. State v. Carter, 15 Wash.ulations, Meyer had transferred to respond121, 45 Pac. 745; State v. Shea, 78 Wash. 342, 139 Pac. 203. [4] Upon the trial, evidence was admitted showing that prior to this charge the defendant had been three times convicted of violating the prohibition law. It is claimed that, since the statute makes it unlawful for a physician to issue a prescription for intoxicating liquor after having been twice convicted of unlawfully issuing such prescriptions, it was error to permit proof of more than that number. There is no merit in this contention. The state was not required to cease the introduction of proof when it had offered sufficient evidence to carry the case to the jury and sustain a conviction. The judgment is affirmed. MITCHELL and TOLMAN, JJ., concur. (107 Wash. 585) ents a portion of the property and retained title to a portion in himself. It is unnecessary to follow the tortuous trail that Meyer pursued; it is sufficient to say that they resulted in securing 440 acres of property, the real purchase price of which was $7,400, but which cost the respondents $6,250 in cash, of which Meyer retained $2,250 for himself, and in addition a note of one of the respondents in the sum of $200, and mortgages aggregating $9,850 upon the 300 acres of land which were transferred to the respondents and mortgages for $3,400, being the balance of the purchase price. In other words, the ven ture as it now stands shows the respondents to have invested $6,250 in cash, to owe $10,050 to Meyer and $3,400 to the original owners of the property, and they have title to 300 acres; Meyer has title to 140 acres and has $2,250 in cash, and has owing him by the respondents $10,050. Two actions were begun by the respondents to clear up this situation, and two actions were also begun by the holders of mortgages given to Meyer's representatives for the purpose of foreclosure. These various ac ZITTEL et al. v. MEYER et al. (No. 15276.) | tions were consolidated and are here as one. (Supreme Court of Washington. July 14, 1919.) FRAUDS, STATUTE OF 119(1)-OPERATION The fraud of an agent employed to purchase real estate for his principal may not be avoided by the plea that his agency was not evidenced in writing. Department 1. The contention of the appellants is that, all the arrangements between the parties having been oral, the statute of frauds prevents the impressing of any trust upon the property in the hands of Meyer or his dummy representatives. In Stewart v. Preston, 77, Wash. 559, 137 Pac. 993, we committed ourselves to the salutary rule that the fraud of an agent who was orally employed to purchase real estate for his principal may not be avoided by the plea that his agency was Appeal from Superior Court, Grant Coun. not evidenced in writing. ty; Sam B. Hill, Judge. Actions by Jacob Zittel and another against Edward F. Meyer and others, consolidated with actions by others. From an adverse decree Meyer and others appeal. Affirmed. See, also, 180 Pac. 921. The court prepared and signed voluminous findings and conclusions based upon what is the great preponderance of the evidence, and has made straight the crooked places in these transactions as nearly as is possible under all the circumstances, and we are satisfied that these findings and conclusions and the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |