Department 2. Appeal from Superior of the superior court above quoted from to Court, Gray's Harbor County; A. W. Frater, be excessive; the county officers ignoring Judge. Action by the Simpson Logging Company against Chehalis (now Gray's Harbor) County. From a judgment for plaintiff, defendant appeals. Affirmed. J. E. Stewart, of Aberdeen, O. M. Nelson, of Montesano, and A. Emerson Cross, of Aberdeen, for appellant. W. H. Abel, of Montesano, for respondent. PARKER, J. The plaintiff seeks reduction of taxes charged against certain of its timber lands in Gray's Harbor county, formerly Chehalis county, for the year 1913, and, having tendered to the county treasurer in payment of the taxes an amount which it contends is the full amount justly due therefor, seeks a judgment requiring the county treasurer to accept the amount so tendered in full payment of the taxes upon its lands for that year. Judgment being rendered by the superior court in favor of the plaintiff as prayed for, the defendant has appealed to this court. Judgment was rendered in favor of the logging company upon the pleadings, wherein admitted facts appear which we regard as controlling the respective rights of the parties, as follows: The logging company's lands being assessed in the spring of 1912 and conceiving itself to be aggrieved by the assessment so made, in February, 1913, it commenced an action in the superior court seeking a reduction of its taxes computed by the county officers upon that assessment, alleging as grounds therefor that the assessment was excessive, being arbitrarily and capriciously so made. That action resulted in judgment in favor of the logging company rendered by the superior court in August, 1913, wherein the superior court found and recited in the judgment, among other things, the following: "That the fair market value of said lands for purposes of taxation on March 1, 1912, was the amounts severally set opposite said described lands in column 4, and that the amount of tax justly chargeable against said several described tracts of land for the year 1912, based on said fair valuation of both land and timber, was the amounts severally set opposite of said described lands in column five thereof." that judgment in listing the logging company's lands in 1913. In the fall of 1913 the logging company appeared before the county board of equalization and requested that the assessment of its lands be reduced upon the tax records for that year in accordance with the judgment of the superior court, to the end that the taxes for that year be computed upon the true valuation of 1912 as determined by the judgment of the superior court. This the board refused to do, so the taxes of 1913 were computed upon the assessment made by the county officers in 1912, which the superior court had determined to be excessive, and found in its judgment the fair market value of the lands for the purpose of taxation in that year. No facts are pleaded showing that the county board of equalization changed the valuation of the logging company's lands from that fixed as the assessed valuation in 1912, because of the making of any improvements thereon, nor is it claimed that there is any such cause for change in the assessed valuation of the lands for the year 1913. Section 9101, Rem. & Bal. Code, touching the assessment of real property in even-numbered years and the grounds upon which such assessment may be increased or lowered in odd-numbered years, reads as follows: "All real property in this state subject to taxation shall be listed and assessed under the provisions of this chapter in the year nineteen hundred and biennially thereafter on every evennumbered year, with reference to its value on the first day of March preceding the assessment: * * Provided further, that real estate becoming subject to taxation since the last assessment, and improvements upon real estate made since the last assessment, shall be assessed and included in the assessment list and tax roll in every odd-numbered year: And provided further, that the destruction or removal of improvements since the last preceding assessment shall be duly noted by the county assessor, and the assessment and tax rolls herein provided made to conform to such changes: Provided further, that all real estate subject to taxation shall be listed by the assessor each year in the detailed and assessment list, and in each odd-numbered year the valuation of each tract for taxation shall be the same as the valuation thereof as equalized by the county board of equalization in the preceding year." The provisions of this section render it The reference in this quotation is to a plain that the assessments of real property tabulated statement embodied in the judg- made in even-numbered years remain the ment. This judgment was appealed from and assessments of such property in odd-numaffirmed by this court. 80 Wash. 245, 141 bered years, except when such assessments Pac. 344. The taxes for the year 1912 were are changed for the causes specified in this paid and satisfied accordingly. Real property section, with which causes we have nothing not being assessed in odd-numbered years, to do in this case. Therefore whatever the (Rem. & Bal. Code, § 9101), there was no as- correct assessed valuation of the logging comsessment of the logging company's lands in pany's lands may have been for the year 1912 the year 1913, the taxes for which year are that would be the assessed valuation of the here in question. In listing the logging com- lands for the year 1913. It would seem to pany's lands for the year 1913 the county offi- follow as a matter of course that, when it is cers adopted the same valuation fixed by the judicially determined that the correct asassessment as made in the spring of 1912, sessed valuation of the logging company's which assessment was held by the judgment | lands for the year 1912 were certain amounts upon the respective tracts, those valuations necessarily became the assessed valuation of the lands for the year 1913. It therefore seems quite plain to us that the judgment of the superior court determining the assessed valuation of the logging company's lands for the year 1912 was, in effect, an adjudication of what the assessment of those lands would be for the year 1913 in the absence of changed conditions, to wit, the making, destruction, or removal of improvements calling for a different valuation for the year 1913. No such changed conditions affecting the valuation of the logging company's lands appearing in this case, we conclude that it is entitled to pay and satisfy taxes chargeable against its lands upon the same basis, so far as assessed valuation is concerned, as for the year 1912. Some contention is made that the trial court erred in rejecting the county's third amended answer. This answer, which is in the record before us, does not plead any facts showing cause for change in the valuation of the logging company's lands in the year 1913 from the valuation as determined by the superior court for the year 1912, nor does it show any attempt on the part of the board of equalization to make such change. The facts pleaded therein amount to nothing more than an attempt to relitigate the matters determined by the judgment of the superior court fixing the assessed valuation of the logging company's lands for the year 1912. Clearly this is no defense; that judgment being final upon that question. The judgment is affirmed. William A. Greene, C. L. Henry, and R. L. Blewett, all of Seattle, for appellant. Alfred H. Lundin and Erven H. Palmer, both of Seattle, for the State. HOLCOMB, J. Appellant was prosecuted and convicted in the superior court of the crime of seduction. It was charged that he did, on or about July 24, 1912, seduce and debauch one G. M., a female of previously chaste character. Two errors are alleged, only one of which we believe entitled to consideration. In his defense appellant called a young man as a witness for the purpose of proving that G. M., the prosecuting witness, was not of chaste character previous to July 24, 1912, and for the further purpose of contradicting the testimony of the prosecuting witness that, previous to the date laid in the information, she had never had sexual intercourse with any man other than the appellant after his seductive arts and promises; and of her brother, to the effect that he never saw any act of intercourse between the prosecuting witness and the witness in question during the months of July or August, 1912. Upon being placed on the witness stand and examined by appellant's counsel, the young man testified that, during the summer of 1912, until July 31st, he lived in the vicinity of the residence of the prosecuting witness on Vashon Island; that at some time while there living, he had "attempted to have sexual intercourse with her." He was then asked to tell the jury what he did. To this an objection was sustained, the trial judge remarking, "If he did not MORRIS, C. J., and HOLCOMB, BAUS- succeed, then it is immaterial." After some MAN, and MAIN, JJ., concur. (91 Wash. 665) STATE v. KELLOGG. colloquy, the jury were excused, and the state's attorney was permitted to ask the witness, "Did you or did you not have sexual intercourse with G. M. prior to September 3, 1912?" to which he answered, "I did not." (Supreme Court of Washington. June 28, 1916.) Counsel were informed that they would not 2. SEDUCTION 42-APPEAL AND ERRORREVIEW-REVERSIBLE ERROR. In a prosecution for seduction, where defendant's witness testified that he had "attempted to have sexual intercourse with the girl," the court's refusal to allow defendant to require him to testify as to what he did was reversible error. [Ed. Note.-For other cases, see Seduction, Cent. Dig. §§ 73-75; Dec. Dig. 42.] Morris, C. J., and Fullerton, J., dissenting. En Banc. Appeal from Superior Court, King County; Everett Smith, Judge. William H. Kellogg was convicted of seduction, and he appeals. Reversed, and remanded for new trial. be permitted to interrogate or cross-examine the witness further, as it would tend to degrade the young man, and because he was appellant's own witness, and that it was an attempt to impeach his own witness. Counsel for appellant offered to prove that the witness had made a statement to them tending to show that the act of the witness to which he referred was in fact such an act as comes within the legal definition of sexual intercourse, and that they were surprised by his testimony, and therefore entitled to cross-examine him as to his variant statements and to contradict him by proof of such statements. The offer was denied. The rule is now well settled in a majority of jurisdictions that, while a party producing a witness vouches for his character and general credibility, and may not, however greatly surprised by his testimony, impeach his character, nevertheless, when the party is surprised and prejudiced by the unexpected testimony in respect to material facts, the par- [position and emotion, not to the correctness of That was the purpose of the offered testi- not establish the fact that the witness did mony, and it should have been admitted or have such intercourse, nor could it properly the variant statements relating thereto. The be considered by the jury for that purpose. ty calling him may interrogate him as to former variant statements (7) Enc. Evidence, 25, 27), and impeach in a proper case by proof of variant statements (same, 28-31). And this court has said: "The better rule undoubtedly is that a party who has been surprised at the unfavorable testimony of a witness he has called in his own behalf may ask such witness whether he has not made contradictory statements at other times and places, and, if the witness denies it, show by other evidence that he has made such state**" State Bank v. Spokane, etc., R. & Nav. Co., 53 Wash. 528, 102 Pac. 414. ments. In the first place, the witness having testified that at the time in question he had "attempted to have sexual intercourse with the girl," appellant had an undoubted right, under all the rules of evidence, to ask him what he did. That was only asking for the detailed facts. If, then, his testimony was surprising and unfavorable to appellant, and at variance with previous statements made by him in regard thereto, appellant has the right to show, by him if possible, such contradictory statements, which, however, the witness would have the right to explain. If he denied having made any such variant statements or of having any recollection thereof, under the now well-settled rule appellant had the right, by preliminary questions, to "lay the proper foundation" for introducing contradictory evidence by interrogating him as to the time, place, and circumstances, and the substance of such contradictory statements. All of the testimony would then be for the jury to weigh. In 2 Wigmore on Evidence it is said: "Section 896. The rule has been long established, and is in its general validity never to-day questioned, that the party on whose behalf a witness appears cannot himself impeach that witness in certain ways." ** * "Section 902. Prior Self-Contradiction. * Does, then, the principle of the rule forbidding the impeachment of one's own witness extend its prohibition to this sort of evidence? An honest witness could readily explain how he came to make the former statement; a dishonest one would not be deterred from returning to truth by such a trifling obstacle. On correct principles, then, the use of self-contradictory statements is not forbidden. "Section 903.*** There ought to be no hesitation upon the propriety of this evidence. It is receivable on three distinct considerations: (1) The principle of the rule is directed against character evidence, and fails entirely to touch the present sort. (2) The dangers supposed to accompany its use are too speculative and trifling to merit consideration. (3) The exclusion of the evidence would be unjust: (1) In depriving the party of the opportunity of exhibiting the truth; and (2) in leaving him the prey of a hostile witness. The only real danger that is to be apprehended is that the contradictory statement may be taken by the jury as substantive testimony in the place of the statement on the stand; but this, though a violation of the hearsay rule (post, section 1018) is not a serious enough disadvantage to outweigh the above considerations, and can always be guarded against by proper instructions." "Section 909. ** * The guaranty of credi bility (if there is one at all) must relate to the witness' general personal trustworthiness of dis specific statements of fact; since the latter, as is universally conceded (ante, section 907) may al ways be shown to be untrue." * "Section 1018. Since ** it is 'the repugnancy of his evidence' that discredits him, obviously the prior self-contradiction is not used assertively; i. e., we are not asked to believe his prior statement as testimony, as we do not have to choose between the two. short, the prior statement is not hearsay, because it is not used assertively, i. e., not testi * * UI... monially. * It follows, therefore, that the use of prior self-contradictions to discredit is not obnoxious to the hearsay rule. It follows, conversely, that prior self-contradictions, when admitted, are not to be treated as assertions having any substantive or independent testimonial value; they are to be employed merely as involving a repugnancy or inconsistency; otherwise they would in truth be obnoxious to the hearsay rule." [1] The previous chastity of the prosecuting witness was one of the important essentials of the case. It is true that another male witness testified to an act of intercourse with the prosecuting witness previous to her alleged seduction by appellant. The jury may, however, have utterly disbelieved this witness, and may have believed, in whole or in part, the testimony of the witness whose rejected testimony is now under consideration, or the evidence of his former variant statements, as to either of which they should have been the sole judges. Upon an issue of chastity it is competent and material to prove previous acts of lewdness or unchastity. 7 Enc. Evidence, 51; Davis v. State, 36 Tex. Cr. R. 548, 38 S. W. 174. Nor was the testimony of the witness referred to, so far as it went, negative testimony so as to preclude contradiction. It was positive evidence of a negative. Direct testimony that an event did not occur, or that a matter is not true, is positive and not negative. This witness was the actor himself. 9 Ency. of Evidence, 865; Frizell v. Cole, 42 111. 362. Where a witness swears that a particular act occurred at a specified time and place, or that particular language was spoken by a person to whom he refers, this is affirmative evidence. But if another witness were at the same place at the same time, and were to swear that he did not observe the act or hear the language of which the other speaks, this would be called "negative evidence." If. however, the latter witness were to state that his attention was fully attracted to what occurred and what was said, and that the act of which the other spoke did not occur, or that the language was not used by the person to whom it was attributed, this would be fully as affirmative as the other. Frizell v. Cole, supra, [2] If the circumstances would tend to show an attempted act of sexual intercourse by the witness with the female, with her consent, and any penetration, however slight, but interrupted or frustrated, it would tend to establish her previous unchastity, even though a completed act of intercourse was not had. exclusion thereof was prejudicial. We cannot tell how much weight or credibility it may have had with the jury. We are agreed that this exclusion of evidence by the court constituted prejudicial error and necessitates a reversal, although otherwise the evidence shown by the record was ample to warrant the conviction. Judgment reversed and cause remanded for new trial. MOUNT and BAUSMAN, JJ., concur. ELLIS, J. The witness should have been required to answer the question as to what he did. That question at least was not impeaching in its character. The answer might have had a tendency to show a consenting mind and disposition on the part of the prosecuting witness. The question was proper, and called for an answer possibly material on the question whether the consent to improper relations with appellant was under a promise of marriage. Prior lewd conduct is always material in such a case. I concur in result. MAIN and CHADWICK, JJ., concur in the result for the reasons stated by Judge ELLIS. MORRIS, C. J. (dissenting). The majority opinion is based upon a misconception of the law as applied to the involved situation. I subscribe to the rule relied upon to sustain the opinion: That a party who is surprised | at the prejudicial testimony of his own witness may, after laying the proper foundation, impeach the witness. Such rule has no application here, however, because the witness sought to be impeached had given no testimony prejudicial to the appellant. The lack of prejudicial testimony has ingrafted an exception upon the rule permitting the impeachment of one's own witness by variant prior statements, which is as firmly established as the rule itself. If the jury believed these contradictory prior statements had been made, it would not establish the fact of the previous intercourse. The only purpose served by the impeaching testimony would be to enable the defendant to get the naked declaration of the witness before the jury. Viewed in every light, this would be pure hearsay. Its character as such cannot be disguised by calling it an impeachment. People v. Wallace, 89 Cal. 158, 26 Рас. 650. The majority opinion is in direct conflict with State v. Simmons, 52 Wash. 132, 100 Pac. 269, and State v. Catsampas, 62 Wash. 70, 112 Pac. 1116. In the first of these cases it is said, in ruling upon this particular point: ** "Had the witness testified to some affirmative fact prejudicial to the appellant, the ruling complained of would perhaps be erroneous. But the witness testified to a mere negative, and had he been ever so successfully impeached, the only effect would be to destroy testimony which was in itself worthless." In the second case it is said: "The object of the testimony not being to affect the credibility of a witness concerning any affirmative statement by him which would be prejudicial to the state's interest, the only effect it could have would be to get before the jury the alleged statement of a discredited witness." That such is the established rule is supported by the weight of authority. 40 Сус. 2696; Culpepper v. State, 4 Okl. Cr. 103, 111 Pac. 679, 31 L. R. A. (N. S.) 1166, 140 Am. St. Rep. 668; Langford v. Jones, 18 Or. 307, 22 Pac. 1064; People v. Jacobs, 49 Cal. 384; Mercer v. State, 41 Fla. 279, 26 South. 317; Hull v. State, 93 Ind. 128; Champ v. Commonwealth, 2 Metc. (Ky.) 17, 74 Am. Dec. 388; Saylor v. Commonwealth (Ky.) 33 S. W. 185; State v. Reed, 60 Me. 550; People v. Mitchell, 94 Cal. 556, 29 Pac. 1106; In re Kennedy, 104 Cal. 429, 38 Рас. 93. In citing Wigmore on Evidence and Ency. of Evidence, the majority opinion cites only the rule, but fails to observe the exception based upon the negative and nonprejudicial character of the testimony sought to be impeached. The exception is noted in both texts. 2 Wigmore on Evidence, § 904, subd. 83; section 1043, Ency. of Evidence, 31. The purpose of impeaching testimony is to destroy the weight of adverse testimony. When there is no adverse testimony there is nothing to destroy. The witness had testified that he did not have sexual intercourse with the prosecuting witness. He also denied that the attempted intercourse consisted of acts which counsel for appellant incorporated into his questions, and which it was claimed the witness had communicated to counsel. It is claimed this testimony was a surprise to the defendant, and an offer is made to prove variant prior statements. These variant statements, if admitted, would by Chief Justice MORRIS. State Bank v. Spokane R. & N. Co., 53 Wash. 528, 102 Pac. 414, also cited, is not applicable, for it refers to a situation where it was permitted to impeach affirmative or prejudicial matter. For these reasons the ruling complained of was correct, and should be affirmed. I therefore dissent. FULLERTON, J. I concur in what is said 2. DAMAGES 132(1)-EXCESSIVE DAMAGESPERSONAL INJURY. In an action for personal injuries, evidence of loosening or misplacement of the sacroiliac joint and permanent injuries to plaintiff held to support a verdict for $2,000. [Ed. Note. For other cases, see Damages, Cent. Dig. § 372; Dec. Dig. 132(1).] 3. COSTS243 ON APPEAL - TO ABIDE EVENT. Where appellant secures a reversal on first appeal, but on second appeal the case is affirmed, appellant is entitled to costs on first appeal under Rem. & Bal. Code, § 1744, providing for costs on appeal to the prevailing party, and to his costs on the first trial. [Ed. Note. For other cases, see Costs, Cent. Dig. §§ 938, 939, 946; Dec. Dig. 243.] Department 1. Appeal from Superior Court, King County; J. T. Ronald, Judge. Action by Luisa Briglio and her husband against Holt & Jeffery, a corporation. Judgment for plaintiffs, and defendant appeals. Affirmed.. Preston & Thorgrimson, of Seattle, for appellant. Andrew R. Black and Ralph Simon, both of Seattle, for respondents. CHADWICK, J. We shall refer to the par [2] At the former trial the jury returned a verdict for the plaintiff in the sum of $2,000. It is alleged now, as it was on the former appeal, that the verdict is excessive, and, while there is much evidence that lends support to the insistence of counsel that respondent Luisa Briglio is a malingerer and is shamming her hurts, there is testimony to sustain the finding of the jury that she is permanently injured and in greater degree than appeared at the former trial. While the court reduced the verdict after the form er trial, it did not do so in this case. The extent of respondent's injury depends upon opinion evidence. The jury was free to believe it, and we cannot say that the verdict is large enough to warrant us in holding that it reflects passion and prejudice of the jury as a matter of law. [3] The court below allowed the costs of the former trial in the superior court and the costs of the former appeal in this court as an offset against the verdict, and entered a judgment in favor of respondent for the difference. Respondent has taken a crossappeal, contending that, inasmuch as she prevailed finally, she is entitled to recover all costs heretofore expended in the action. Appellant is entitled to its costs on the former appeal. This is covered by statute (Rem. & Bal. Code, § 1744). We think, too, that it is entitled to recover its costs ex pended in the former trial. Costs follow as an incident to a judgment. The effect of our holding on the appeal was to vacate the former judgment, and hold it for naught. The only judgment in which respondent has any interest is the present judgment, which we affirm, and she is entitled only to such costs as are incident to that judg ty Luisa Briglio as the respondent. The familiar with the case testified that long association and continued observation warranted, the belief that the injury which Mrs. Briglio had sustained was due to the loosening or misplacement of the sacroiliac joint. [1] It is assigned as error that the court charged the jury that appellant was bound to use "every reasonable effort for the prevention of injury." The instruction is substantially the same as that approved by the court in Abrams v. Seattle, 60 Wash. 356, 111 Рас. 168, 140 Am. St. Rep. 916. If the instruction were otherwise subject to criticism, it would not be so in this case. Appellants were employing the force of blasting powder or dynamite in the prosecution of their work. The degree of care which the law puts upon them is commensurate with the danger to those who are within range of their operations. From this viewpoint the instruction is sustained by the reasoning of the court in the case of Freebury v. Chicago, M. & P. S. R. Co., 77 Wash. 464, 137 Pac. 1044. MORRIS, C. J., and MOUNT, FULLERTON, and ELLIS, JJ., concur. (91 Wash. 634) HILL : CALKINS et al. (No. 13159.) In an action under the statute of claim and delivery to recover property because of breach of against the purchaser of the property at a tax sale, plaintiff did not have to attack the validity of the tax, or tender its payment as a condition precedent to a recovery, his claim being that his property was distrained and sold for another person's taxes, but could sue the purchaser directly as for a wrongful taking, and, when the tax sale was relied upon to defeat recovery, allege and show that the property was not subject to the lien of the tax or to distraint thereunder; Rem. & Bal. Code, §§ 955, 956, making a tender a condition precedent to enjoin tax collection or for the recovery of any property sold for taxes, and providing that the complainant must state and set forth full particulars of the tax alleged to be illegal and point out the the terms of a contract of conditional sale For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |