new duties, the master becomes at once | part denies to appellant its defense of aschargeable with the obligation of giving him sumption of risk. We are not advised as to instructions in any case where there is a real augmentation of the risks, owing to the fact that the servant has not sufficient experience or intelligence to enable him to safeguard himself." Labatt, Master & Servant. p. 541. "It is the duty of the master to supervise, direct, and control the operation and management of his business so that no injury shall ensue to his employés through his own carelessness or negligence in carrying it on, or else to furnish some person who will do so, and for whom he must stand sponsor." Thompson, Negligence, § 3805. the theory of the court in injecting the words objected to, and if this instruction stood alone it might not be sufficient for the guidance of the jury. Its meaning is not plain, but in other instructions, not in one but in a number, the law of assumption of risk is clearly set forth, so that upon the entire charge the jury could not have been misled. The verdict being consistent with the evidence, we had rather believe that the jury followed the true rule, emphasized as it was by the repeated utterances of the court, than that it was governed entirely by what That it is the ordinary and not the ex- seems to us to be a misprision on the part traordinary danger arising from the violation of the court. Hoseth v. Preston Mill Co., 49 of some rule of science or mechanics not Wash. 682, 96 Pac. 423. Objections are made likely to be appreciated by the man of ordi- to other instructions, but we think they state nary prudence, which binds the servant to the law when considered in connection with the law of assumption of risk, is the logic of other instructions, and are consistent with Cook v. Chehalis River Lumber Co., 48 the law of the case as we have found it to be. Wash. 619, 94 Pac. 189, where the court said: Lastly, it is contended that the city cannot "The rule undoubtedly is that a servant as- be held liable because it was acting in a sumes the risk of injury from dangers inci- governmental capacity, and not in the cadent to his employment which are apparent | pacity of a private corporation. While there to him and which the master does not un- is a diversity of opinion and a divided audertake to remedy as an inducement to keep thority upon this question, it seems to have the servant at work, or is under no duty of been settled by this state that the construcpositive law to discover and remedy. But tion and repair of highways is to be regarded this doctrine, it seems to us, has no applica- as a ministerial rather than a governmental tion to the case before us. Here, clearly, the function, and that the city is therefore andanger causing the injury was not one ordi-swerable for its negligence. Sutton v. Snonarily incident to the employment. On the contrary, if the respondent's evidence is to be believed, the injury was caused by the grossest kind of negligence on the part of the appellant's foreman who was in immediate charge of the work. He directed a thing to be done which the slightest investigation must have told him would be highly dangerous to both of the men who were engaged in work at the foot of the trestle. The tightening of the rope, in the position it was placed by his orders, must necessarily throw off the planking from the projecting timbers, and it was gross carelessness to do this with-governmental functions. In the performance out warning the men below of their danger. This danger was not therefore a danger incident to the employment. It was one caused by the negligent acts of the appellant's foreman, and one which he could have avoided by using even ordinary prudence." homish, 11 Wash. 24, 39 Pac. 273, 48 Am. St. Rep. 847; Prather v. Spokane, 29 Wash. 549, 70 Pac. 55, 59 L. R. A. 346, 92 Am. St. Rep. 923. In Cunningham v. Seattle, 40 Wash. 59, 42 Wash. 134, 82 Pac. 143, 84 Pac. €41, 4 L. R. A. (N. S.) 629, the case upon which appellant principally relies, the distinction between that case and the case at bar is noted by a quotation from Sutton v. Snohomish: "In the first place, we are of the opinion that the laying out, repairing, and controlling of streets by a chartered municipal corporation does not call forth the exercise of strictly of such duties, however imposed, the municipality acts primarily for the benefit of the inhabitants of the particular locality. In preserving the peace, caring for the poor, preventing the destruction of property by fire, and preserving the public health, it assumes duties which are said to be in their Many cases are cited by counsel on both sides, but, inasmuch as this case depends up-nature solely governmental (Jones on Neglion general and obvious rules of law, it would extend our opinion to an inordinate length to review them. Among other instructions complained of, the following is vigorously assailed: "The law also provides that the servant is held to assume the ordinary risks usually incident to his employment so far as they may fairly be presumed to be within his knowledge in the exercise of ordinary care, provided the master has used ordinary diligence to eliminate them." It is insisted that the italicised gence of Municipal Corporations, c. 4), and for the nonexercise or negligent exercise of which the corporation is not generally liable to individual citizens. But the duty to keep streets in repair is a municipal or ministerial duty, for a breach of which an action will lie in favor of a party injured thereby. Denver v. Dunsníore, 7 Colo. 328 [3 Pac. 705]." Whether the reasoning employed to draw the distinctions between the Sutton Case and the case of Cunningham be good or bad, it is the established law in this state. and we are not disposed to question it in the absence of legislative direction. This conclusion makes it unnecessary for us to notice specifically other assignments of error; they being covered by the general propositions advanced. CROW, J. Ordinance No. 14,889 of the city of Seattle provided for the condemnation of private property to extend Blewett street, and for the levy of a special assessment to pay the compensation and damages awarded. On October 2, 1907, the city filed its petition The judgment of the lower court is af- in the superior court, praying that just comfirmed. pensation be made for property to be taken and damaged. Edith May Graham appeared RUDKIN, C. J., and GOSE, and FULLER- as owner of land a portion of which was to TON, JJ., concur. (59 Wash. 485) In re CITY OF SEATTLE. WOLVERTON v. CITY OF SEATTLE. (Supreme Court of Washington. Aug. 5, 1910.) 1. MUNICIPAL CORPORATIONS (§ 124*) NENT DOMAIN COMMISSIONERS-POWERS OFCONSTITUTIONALITY OF. Rem. & Bal. Code, § 7788, creating a board of eminent domain commissioners and providing for their "appointment," is not in violation of Const. art. 11, § 5, providing for the "election" in the several counties of boards of county commissioners, sheriffs, county clerks, etc., the eminent domain commissioners being city officials, and it not being intended that every officer of a municipal corporation should be chosen by "election." [Ed. Note.-For other cases, see Municipal Corporations, Dec. Dig. § 124.*] 2. CONSTITUTIONAL LAW (§ 48*) TION IN FAVOR OF VALIDITY OF Every intendment is in favor of construing a statute as being constitutional. 3. CONSTRUC- be taken. The jury by their verdict awarded her $3,257.50, for the land taken, and found that the remainder of her land was not damaged. Judgment was entered upon the ver dict, and on July 28, 1908, the city filed its supplemental petition for a special assessment to pay compensation to the various ownEMI-ers for their property taken and damaged. The matter was referred, by order of court, to the board of eminent domain commissioners of the city of Seattle to make an assessment in the manner provided by law. An assessment was prepared, which upon the hearing of exceptions thereto was set aside, and the matter was again referred to the commissioners for a new assessment, which was prepared, and in due course of procedure filed with the clerk. Pending these proceedings, Edith May Graham conveyed her interest in the tract not taken to Rebecca Wolverton, who on June 28, 1909, filed objections to an assessment of $300 thereon, which had been made by the commissioners. These objections were heard on July 7, 1909, and overruled by the superior court which confirmed From the order of conthe reassessment. firmation Rebecca Wolverton has appealed. Appellant first contends that the assessment roll was prepared by a board not authorized by law; that it is therefore void; and that the act (section 7788, Rem. & Bal. Code), creating the board of eminent domain commissioners and providing for their appointment, is in violation of section 5, art. 11, of the state Constitution, which requires their election. The section mentioned reads as follows: "The Legislature, by general and uniform laws, shall provide for the election in the several counties of boards of county commissioners, sheriffs, county clerks, treasurers, prosecuting attorneys, and other county, township, or precinct and district officers, as public convenience may require, and shall prescribe their duties and fix their term of office, It shall regulate the compensation of all such officers, in proportion to their duties, and for that purpose may classify the counties by population. [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. § 46; Dec. Dig. § 48.*] EMINENT DOMAIN (§ 243*)-CONDEMNATION PROCEEDINGS DAMAGES TO OTHER PROPERTY-SUBSEQUENT ASSESSMENt of. Where in certain condemnation proceedings for opening up a street the jury made an award for a part of property taken and found "no damages" for the other part, such finding, not necessarily implying that there either were or were not any benefits to the other part, did not estop the subsequent assessment of such part for benefits, and therefore, on the hearing attacking such assessment, testimony showing the introduction of evidence in the condemnation proceedings to prove damages to the other part in excess of benefits was properly excluded." [Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. §§ 627-629; Dec. Dig. § 243.*] 4. MUNICIPAL CORPORATIONS (§ 502*) — SPECIAL ASSESSMENTS-RIGHTS OF THE OWNER OF THE PROPERTY. On the hearing attacking an assessment for public improvements the plaintiff was entitled to show that her property assessed was not benefited by such improvements. [Ed. Note.-For other cases. see Municipal Corporations, Cent. Dig. § 1174; Dec. Dig. § 502.*] Departinent 2. Appeal from Superior Court, King County; Arthur E. Griffin, Judge. Petition by Rebecca Wolverton against the City of Seattle attacking an assessment. Judgment for respondent, and petitioner appeals. Affirmed. Carkeek & McDonald, for appellant. Scott Calhoun and Howard A. Hanson, for respondent. And it shall provide for the strict accountability of such officers for all fees which may be collected by them, and for all public moneys which may be paid to them, or officially come into their possession." It is manifest that this section has no application. The board of eminent domain commissioners are city officials. In re Westlake Avenue, 40 Wash. 144, 82 Pac. 279. They are not officials of any county, town- tioner admitted that the remainder of said ship, precinct, or district, all of which po- original tract would be damaged were it not litical organizations may be clearly distin- for the fact that the special benefits accruing guished from municipal corporations, such as from the improvement to the part of the land cities or towns, created by law, and author- not taken would equal and just offset the ized to conduct a local self-government hav-damages sustained by it, and that therefore, ing a mayor, common council, and other of said remainder of said original lot would not ficials. It was not the intention of the fram- be damaged. And I further offer to prove ers of the Constitution, nor of the people who by this witness that his honor Judge Arthur adopted it, to require the election of each E. Griffin, the judge presiding at said trial, and every officer of a municipal corporation. | instructed the jury that the damages found Courts will not declare an act of the Legisla- in respect to the remainder of said proposed ture invalid when it is claimed to be in conflict with the Constitution, unless such conflict be clear and unquestioned. Every intendment must be given force in favor of the constitutionality of the law. We find no conflict here. lot should be over and above any special benefit arising from said improvement." To this offer an objection was also sustained, and an exception allowed. Appellant insists that the trial court erred in rejecting this offer, and contends that in a condemnation proceeding, when a municipal corporation attempts to assess benefits upon the residue of a lot, a part of which has been taken for a street, it is proper to show by parol evidence, that at the condemnation trial, the benefits accruing to the residue, were offset against the damages done thereto, and that if in fact the jury offset the benefits against the damages, and found that the one was just equal to the other, the city has already received full compensation for the benefits conferred, and should be estopped from making any special assessment. This court in Smith v. Seattle, 41 Wash. 60, 82 Pac. 1098, and Schuchard v. Seattle, 51 Wash. 41, 97 Pac. 1106, in substance held that, when an actual award of damages to property not taken has been made in a condemnation suit, and the jury in arriving at such award had under instructions offset all legal and special benefits arising from the proposed improve On the hearing of appellant's objections to the reassessment, she called one of the eminent domain commissioners, who testified that the board did not make any inquiry as to evidence presented on the condemnation trial, but that they assessed according to special benefits all property, as to which the jury had returned a verdict of no damages, and that in his opinion the assessment of $300 on appellant's property was not more than it would be specially benefited, nor more than its proportionate share of the cost of the improvement. Appellant then called the court stenographer who had reported the condemnation trial, and asked: "I'll ask you to state whether or not the parties, Edith May Graham and the petitioner, the city of Seattle, did not at that trial agree on all the issues between them, except the question of damages to the remainder of the original tract; that is, the tract now in controversy, and that was the only question contested and sub-ment, an assessment against the damaged mitted to the jury." An objection being sustained to this question, appellant through her attorney then made the following offer: "I now offer to prove by this witness that on June 4, 1908, a trial was had before a jury in this cause on the original petition filed herein for the condemnation of the parcel of land of which the property assessed in this roll is the remainder not taken in said proceeding. That by a stipulation entered into in open court on said trial, between Edith May Graham, then owner of said property, the grantor of objector, Rebecca Wolverton, and the petitioner, the city of Seattle, the only issue contested and submitted to the jury was the question of whether or not the remainder of said lots was damaged in excess of the benefits by the improvement proposed herein, and if not, the extent of such damage. That the said Edith May Graham introduced evidence to the jury that the property herein assessed, being the part of the original not taken, was damaged in the sum of $500 by reason of the taking of the part condemned, over and above any local or special benefit arising from such proposed improvement. That the witnesses for the city and all the evidence introduced by said peti property for the same improvement cannot be sustained. Those cases have no application here, the jury having awarded no damages. After calling attention to the fact that our eminent domain act was taken from that of Illinois, appellant cites Leopold v. City of Chicago, 150 Ill. 568, 37 N. E. 892, and insists that it should be followed by us. In that case the Illinois court did hold that evidence such as appellant offered to introduce was. competent and admissible. But in the later case of Chicago v. Mecartney, 216 Ill. 377, 75 N. E. 117, the same court, in commenting on the Leopold Case, said: "As to the case just cited, it may be said that the legal principles stated in the opinion are correct and in accordance with previous decisions, although the conclusion drawn from them is perhaps a non sequitur which should not be followed." The conclusion was that the evidence should have been admitted. If the trial judge had admitted the evidence offered in this action, it could not be determined therefrom that the jury in the condemnation proceeding actually found that the damages to the land not taken amounted to just $500; that the bene fits from the improvement were exactly $500, tiff's right and an injury thereof, are no bar to a suit in equity to restrain such obstruction, unless it appear, either by the record or by extrinsic evidence, that the defendant did not prevail in that action for want of proof that he had violated the plaintiff's right." So here, with the offered evidence and proof admitted, it would be impossible, in the absence of special findings, to determine from such evidence and from the general verdict of no damages in the condemnation proceed and that by offsetting the one against theification of defense denying both the plainother they reached their verdict of no damages. In other words, the evidence would not exclude the theory or probability that, in weighing the evidence, the jury may have rejected as unworthy of belief all evidence introduced to show damages, and may not have found any damages whatever against which they would be called upon to offset benefits. With the evidence admitted as offered it would have been impossible for the trial judge to positively reach the conclusion that the jury did find damages, or that it did off-ing that the jury actually found the land set benefits. Appellant's only purpose in of- taken had been damaged, and in addition fering the evidence was to create an estoppel, thereto that, having so found, they offset all and prevent the city from making any assess- benefits against such damages. Appellant erment whatever, but there could be no such es- roneously assumes the respondent's position toppel unless the jury did actually find dam- to be that because the jury found no damages and did actually offset against such ages, they must necessarily have found benedamages all benefits to the property not tak-fits. On the contrary, its only position is en. The final verdict may have been reached that the verdict found no damages, and that by rejecting all evidence of damages and no finding either of benefits or no benefits was without offsetting benefits, or the benefits necessarily made. In the absence of special might have exceeded the damages by a very findings, it cannot be now determined whethconsiderable sum. In Soderberg v. Armstronger the jury actually offset benefits against (C. C.) 116 Fed. 709, the plaintiff sought to damages. Benefits have since been found by enjoin the defendants from extracting ore the board of eminent domain commissioners, from a mining claim. The defendants plead- as the basis of an assessment. The appeled in bar a former suit for substantially the lant, upon the hearing of her objections, was same purpose. between them and plaintiff's entitled to show, if such was the fact, that no assignor, in which they, the defendants, de- benefits had resulted to her property from the nied ownership of the mine by plaintiff's as-improvement, but she could not make that signor, also denied that they had extracted any ore, and alleged that on a jury trial and the evidence then introduced, a verdict was returned and a judgment was entered in their favor. In holding that the judgment thus pleaded did not constitute an estoppel, the * It clearly appears from the pleadings therein that defendants might have obtained a verdict in their favor upon two different and independent grounds: One that complainant was neither the owner of nor entitled to the possession of the mining ground in controversy; the other, if the defendants failed to sustain this proposition, that they had never extracted any ore from any part of the ground. The extrinsic evidence adduced by the defendants shows that both of these questions were properly submitted to the jury; but this fact does not show that both questions were decided by the jury. The judgment was rendered upon the verdict of the jury. Who can tell from the record upon which point the jury decided the case? In McDowell v. Langdon, 3 Gray [Mass.] 513 -a case in principle on all fours with this case it was held that a verdict and judgment is affirmed. ment for the defendant in an action at law for obstructing the flow of water to the plaintiff's mill, on a plea of not guilty, and a spec court said: showing in the manner attempted, or by proceeding upon the theory that the general verdict of the jury, aided by a repetition of the evidence admitted on the condemnation trial would establish her contentions. In Chicago V. Mecartney, supra, the Supreme Court of Illinois further said: "If the jury in a condemnation proceeding award damages for property not taken the judgment is conclusive against a subsequent proceeding to assess it for benefits, because the judgment is conclusive that there are damages and not benefits; but where a jury simply find that there are no damages, the verdict and judgment are not and cannot be conclusive that there are no benefits. The fact that property is greatly benefited and doubled in value by an imthat it is not damaged, but perfectly consistprovement is not inconsistent with a verdict ent with it. It would seem to be an absurdity to say that the finding of a jury that the aged was also a finding that it was not benefited-a question which the jury could not legally consider." property of defendant in error was not dam We find no error in the record. The judg RUDKIN, C. J., and PARKER, DUNBAR, and MOUNT, JJ., concur. (59 Wash. 554) MILLER et al. v. CAUGHREN et al. (Supreme Court of Washington. Aug. 8, 1910.) 1. APPEAL AND ERROR (§ 1022*)-FINDINGS OF REFEREE-REVIEW. A referee's finding, based on conflicting evidence, sustained by the trial court, will not be disturbed on appeal. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4015-4018; Dec. Dig. § 1022.*] 2. JOINT ADVENTURES (§ 4*)-AUTHORITY OF PARTNER. Where plaintiffs and defendants, two independent partnerships, jointly built and operated a steamboat to carry freight and passengers for defendants and their subcontractors, plaintiffs and defendants agreeing to share equally in the profits and losses of the boat venture, but no fixed freight rate was agreed on at the time, a member of defendants' firm, who had charge of its freight department, had authority subsequently to agree with the manager of the boat that the rate should be $6 a ton. upon at that time. Subsequently the member of the appellant company who had charge of the freight department agreed with the manager of the boat to make the charge $6 per ton for freight carried, and this rate was well known, and was acted upon after that time. It is clear that the officer of the appellant company having charge of its freight department would have authority to agree with the carrier upon the freight rate to be charged, where none had been definitely fixed. The judgment must therefore be affirmed. (Supreme Court of Washington. Aug. 6, 1910.) [Ed. Note. For other cases, see Joint Ad-1. INSANE PERSONS (§ 32*)-INCOMPETENTSventures, Dec. Dig. § 4.*] Department 2. Appeal from Superior Court, Spokane County; W. A. Huneke, Judge. Action by Charles S. Miller and others against J. A. Caughren and others. Judgment for plaintiffs, and defendants appeal. Affirmed. GUARDIANS JURISDICTION. The superior courts have inherent jurisdic tion to protect the estates of nonresident incompetent persons; the power to appoint guardians lying in the sovereignty of the state, and the procedure only being statutory. [Ed. Note.-For other cases, see Insane Persons, Cent. Dig. § 47; Dec. Dig. § 32.*] 2. INSANE PERSONS (§ 70*)-—INCOMPETENTS— GUARDIANS JURISDICTION. Const. art. 4. § 6, giving the superior court Robertson, Miller & Rosenhaupt, for appel- original jurisdiction of all matters of probate lants. P. C. Shine, for respondents. and of all special cases and proceedings not otherwise provided for, includes power over the estate of an incompetent when properly brought before the court. MOUNT, J. The respondents and the appellants in this case were two independent partnerships. The latter partnership was engaged in business as general railroad contractors, constructing a line of railroad along the Columbia river. In 1906 these two partnerships in common built and operated a steamboat on the Columbia and Snake rivers, for the purpose of carrying freight and passengers for the appellants and their subcontractors. It was agreed that the two copartnerships should share equally the profits and losses of the steamboat venture. This action arose upon a final accounting between the parties. This appeal is from a final judgment upon the accounting. [Ed. Note. For other cases, see Insane Persons, Cent. Dig. §§ 115, 117; Dec. Dig. § 70.*] 3. INSANE PERSONS (§ 32*)-INCOMPETENTS— GUARDIAN'S APPOINTMENT. for the filing of a petition for the appointment Under Laws 1909, c. 118, § 1, providing of a guardian for the property of an incompetent person, and section 4 providing that when the incompetent resides out of the state and has property therein requiring the care of a guardian, service by publication may be had, a guardian may be appointed for the estate of a nonresident incompetent. [Ed. Note.-For other cases, see Insane Persons, Cent. Dig. § 47; Dec. Dig. § 32.*] 4. INSANE PERSONS (8 34*)-INCOMPETENTS— GUARDIANS. Under such statute a nonresident may be appointed guardian for the estate of an incompetent. [Ed. Note.-For other cases, see Insane Per sons, Cent. Dig. § 49; Dec. Dig. § 34.*] 5. INSANE PERSONS (§ 34*)-GUARDIANS. The general rule is that in the absence of a statute the court may appoint any proper person, whether resident or nonresident, as guardian of the estate of an incompetent; his in theory always before the court. bond answering for his presence, and he being The only question presented is whether the charge for freight carried for subcontractors of the appellants should be $5 per ton or $6 per ton. The referee, to whom the case tried, found that the agreement was for $6 per ton. The trial court sustained that finding. The evidence upon this question is in conflict, and we shall not disturb the finding. Appellants argue that the articles of copartnership provided for $5 per ton for freight, and also argue that one of the members of the appellant partnership could not change that article without the assent of the other partners. It is true there was some talk at the time the members agreed to build and operate the boat that freight could be carried at $5 per ton, but there was no fixed rate for freight agreed For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes For opinion on petition for rehearing, see 110 Pac. 626. [Ed. Note.-For other cases, see Insane Per sons, Cent. Dig. § 49; Dec. Dig. § 34.*] Department 1. Appeal from Superior |