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-correction of erroneous instruction.

(— Wash. — 247 Pac. 1.)

a

law of this state that the instructions must be considered as a whole; that, although portion thereof, if standing alone, may be technically erroneous and have a tendency to confuse and mislead the jury, yet it will not constitute prejudicial error, if, when taken in connection with other instructions given, the jury could not have been misled as to the principles of law applicable to the issues. Farnandis v. Seattle, 95 Wash. 587, 164 Pac. 225; Olmstead v. Olympia, 59 Wash. 147, 109 Pac. 602; Sudden & Christenson v. Morse, 55 Wash. 372, 104 Pac. 645; St. John v. Cascade Lumber & Shingle Co. 53 Wash. 193, 101 Pac. 833; Manhattan Bldg. Co. v. Seattle, 52 Wash. 226, 100 Pac. 330; Gray v. Washington Water Power Co. 30 Wash. 665, 71 Pac. 206."

Assignments of error on other instructions excepted to and the refusal of the court to give instructions requested by the appellant are without merit, we think, in consideration of others given which appear to have fully and correctly covered the case.

It is assigned as error that the motion of appellants for judgment notwithstanding the verdict should have been granted. There was a conflict in the evidence upon the issues made by the pleadings sufficient

Judgmentnon obstante Veredicto

when proper.

to take the case to the jury.

Finally it is claimed that the verdict as reduced by the trial judge is excessive, and that it should be still further reduced and acceptance required by the respondent or a new trial granted. Out of deference to the judgment and discretion of the trial courts, the practice has become settled in this state that it is within the discretion of New trial-powthe trial judge to re- er of court to quire an acceptance reduce verdict.

of a less amount than the verdict or a new trial will be granted. In the present kind of a case, by its very nature, the amount of damages cannot be fixed with mathematical certainty. Primarily the jury must be given considerable latitude in fixing the amount. Thereafter, as here, the trial judge in his judgment fixes an amount which alone stands in the way of the granting of a new trial. The fixing of such an amount by the trial judge has of itself the attribute of judgment and discretion which must be considered by an appellate court as such, and, unless we can see in the amount thus fixed in this case an abuse of discretion, it merits approval. We find none in this case. The amount is fairly within a reasonable range, and we are not disposed to disturb it. Affirmed.

Appeal-inter

ference with

award of dam

ages.

Tolman, Ch. J., and Main, Parker, Holcomb, and Askren, JJ., concur.

Petition for rehearing denied.

ANNOTATION.

Validity of statute or ordinance forbidding running of automobile so as to

inflict damage or injury.
[Automobiles and Motorcycles, § 4.]

The privilege of using public highways does not amount to an absolute and unqualified right, but is subject to regulation by the state acting under its police power as sovereign authority, looking to the protection of persons using the highway for travel. This power of regulation expands to meet changed conditions, and, with

the introduction of automobiles as a means of conveyance, the power advanced, and conferred ample authority to regulate their use. 2 R. C. L. 1171.

With the exception of the reported case (TICKNOR V. SEATTLE-RENTON STAGE LINE, ante, 252), however, no case has been found involving the va

lidity of a statute or ordinance which, without regard to care or negligence or the violation of specific regulations, undertakes to forbid the running of an automobile so as to inflict damage or injury, or, more specifically, so as to collide with other vehicles or with persons.

The question whether the occurrence of a collision or accident makes a prima facie case of negligence, and the question whether the violation of some specific regulation as to the condition or manner of driving an automobile amounts to negligence per se, are, of course, beyond the point.

It will be observed in the TICKNOR CASE that the court reiterates its holding in Horney v. Giering (1925) 132 Wash. 555, 231 Pac. 958, which is shown in the following quotation from the latter case: "Section 43 of the ordinance as quoted in the instruction provides among other things, that no person shall drive or operate any vehicle so as to collide with or strike against any person.' The appellant's automobile did strike against the respondent. It is the settled law in this state that a thing done in violation of a positive law is of itself negligence. Under the provisions of the ordinance referred to and the rule of law stated, the appellant, when his automobile struck the respondent, was guilty of negligence, no matter how careful the driver of the car may have been at the time. If that provision of the ordinance is sustained, it would take from the appellant the defense that his

driver was not negligent, and would leave in the case only the question as to whether the respondent was guilty of contributory negligence. The provision of the ordinance, if given effect, would make the operator of an automobile an insurer of the safety of pedestrians upon the street, aside from the question of contributory negli gence. It would also place the careful driver, as well as the negligent one, upon an equal footing. That provision of the ordinance fixes no standard by which negligence of the operator of the car can be determined. It arbitrarily says, when read in connection with the rule of law above referred to, that when a vehicle strikes against a person, the owner or operator of the vehicle is guilty of negligence. Such a provision in an ordinance we think is unreasonable and oppressive, and therefore void. In 19 R. C. L. 805 it is said: 'A municipal ordinance of a regulatory nature, in contravention of the natural rights of individuals, enacted under general charter powers, is not only required to be constitutional, but it must be reasonable as well; that is, the court before which it is brought must be able to see that it will tend to promote the public health, morals, safety, or welfare; that the means adopted are adapted to that end; and that it is impartial in operation, and not unduly oppressive upon individuals.' Other authorities might be cited to the same effect, but the rule is a general one, and it is not necessary to multiply citations in its support." G. R. B.

WILLIAM E. MORELAND

V.

CREDIT GUIDE PUBLISHING COMPANY.

Massachusetts Supreme Judicial Court — May 26, 1926.

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152 N. E. 62.)

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Master and servant, § 52- termination of contract — justification. The accidental destruction of records used by a corporation to furnish information to inquirers and subscribers to its Credit Guide, which se riously impairs temporarily the profitable conduct of the business, does not justify the cancelation of a contract for services of one whose duties

(Mass., 152 N. E. 62.)

in part involve use of such records, where it continues to publish the Credit Guide and the employee's usefulness does not depend entirely on the use of the destroyed records.

[See annotation on this question beginning on page 258.]

EXCEPTIONS by defendant to rulings of the Superior Court for Suffolk County (Raymond, J.) made during the trial of an action brought to recover for alleged breach of contract of employment, which resulted in a verdict for plaintiff. Overruled.

The facts are stated in the opinion Messrs. H. A. Eyges and C. J. Miller for defendant.

Mr. R. B. Owen for plaintiff.

Wait, J., delivered the opinion of the court:

Succinctly stated, the question in this case is whether the fortuitous and blameless destruction of records of credits, upon the existence of which the orderly conduct of a business depended, is an excuse for failure to continue the employment of an agent whose usefulness and value to the employer were contingent in large part upon daily use of such records.

of the court.

The defendant is a corporation engaged in the publication of a credit guide, and in furnishing to nquirers and subscribers information in regard to business credits. It maintained offices in many places throughout the United States of America, with a chief office in New York. At the New York office it had accumulated since it began business in 1915 more than 3,000,000 cards upon which was entered matter in regard to the credit of persons and concerns which it used in supplying information to inquirers who applied to it at New York or at its other offices. In October, 1921, it made a contract of employment with the plaintiff by which it employed him as "manager as representative of the sales force for and in behalf of the corporation in and for the state of Massachusetts, with a central office to be located at Boston, Massachusetts, for a term of three (3) years," was to "devote his undivided time and he and attention to the interest of the Corporation in the procurement of

47 A.L.R.-17.

members or subscribers and in the management of salesmen or agents." His compensation was to be $5,000 per year, with a commission in addition upon terms not important to this decision.

The contract did not define his activities further. In fact he collected information and sold, by himself or agents employed by him, the information in which the corporation dealt. He built up a card collection of some 400 or 500 reports at Boston, but he used the information stored in New York for the larger part of his work. The corporation contemplated the collection of files at Boston, but it had done little toward that end.

On May 30, 1922, the records at New York were destroyed by fire, and the ability of the corporation to supply supply information was thereby greatly curtailed. The plaintiff and other agents were summoned to New York and shown conditions there.

The plaintiff testified it was not possible to resume business at once. The corporation considered resumption, but, in July, decided to go on only with the publication and sale of its credit guide. It offered to retain the plaintiff in connection with this, but he declined. On July 30, 1922, he brought this action for breach of the written agreement of employment.

The defendant asks that we sustain its exceptions to an instruction that the destruction of the records and its attendant crippling of the business "did not render impossible the performance of the contract in such a way as to relieve the defendant of liability for damages for the

breach of the contract in suit here," and to the refusal to give the following requests:

"If the jury finds that there was a written contract of employment between the defendant and the plaintiff, and that the defendant's business was of such a nature that it depended for its continued operation and functioning upon the continued existence of its property, to wit, the written records, reports, data, investigations, etc., and that on or about June 1, 1922, the said property of the defendant, to wit, its written records, reports, data, investigations, and information were either wholly or substantially destroyed without fault or negligence on the part of the defendant, and that the business ceased and could not continue in operation by reason of the destruction of said property, then the contract between the plaintiff and the defendant terminated and came to an end, because of an implied condition in the said contract between the parties, that the business with the state of things present and existing at the time the contract was entered into, should substantially continue until the time of the expiration of the contract, according to the terms thereof."

"If the jury finds that it was impossible for the defendant to further function or carry on its business, then the contract of employment became impossible of performance by the defendant, and the defendant is therefore excused from liability thereon."

Without attempting to discuss generally the law in regard to the effect of impossibility of performance of a contract as a defense, or what constitutes impossibility of

performance, it is sufficient to decide that upon the facts here disclosed nothing more is shown than a serious impairment temporarily of the profitable conduct of the defendant's business. The material destroyed had been accumulated, apparently, in the course of a few years and could be replaced by following the method in which it had been originally obtained. Its use by the plaintiff, though of great impor tance, did not constitute his entire work for the defendant. The substantial contract did not need for its foundation the assumption of the existence of this particular collection of records. Krell v. Henry [1903] 2 K. B. 740, 749-C. A.

No case has been called to our at tention which goes so far as to sustain the defendant's contention. It does not fall within the class of cases which Butterfield v. Byron, 153 Mass. 517, 12 L.R.A. 571, 25 Am. St. Rep. 654, 27 N. E. 667. dealt with as establishing termination to a contract by impossibility of performance. of performance. The instruction given was correct,

Master and serv

tion of contract

and the requests ant-termina were denied proper- justification. ly. John Soley & Šons v. Jones, 208 Mass. 561, 95 N. E. 94; Rowe v. Peabody, 207 Mass. 226, 93 N. E. 604; Madden v. Jacobs, 52 La. Ann. 2107, 50 L.R.A. 827, 28 So. 225; Nicol v. Fitch, 115 Mich. 15, 69 Ám. St. Rep. 542, 72 N. W 988; Turner v. Goldsmith [1891] 1 Q. B. 544-C. A.; Herne Bay S. B. Co. v. Button [1903] 2 K. B. 683C. A.; Krell v. Henry [1903] 2 K. B. 740-C. A.; Taylor v. Caldwell, 3 Best & S. 826, 122 Eng. Reprint, 309, 6 Eng. Rul. Cas. 603. Exceptions overruled.

ANNOTATION.

Change in personnel or conditions of business as justification for termina. tion of contract of employment. [Master and Servant, § 52.]

Earlier cases on this question will be found in the annotation in 34 A.L.R. 817.

The general rule laid down in the

annotation in 34 A.L.R. 820, that, since the death of a partner dissolves a partnership, a contract of employment is terminated by the death of a partner

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so that the employee cannot recover damages for his discharge by other partners, was applied in Shumate v. Sohon (1926) App. D. C. ALR., 12 F. (2d) 825, where it was held that the act of a viving partner in selling the partnership business without provision for the continued employment of one in the employment of the partnership furnished the employee no cause of action against the surviving partner for breach of contract of employment. The court admitted, however, that there was a conflict of authority on this question, stating that (as pointed out in 34 A.L.R. 821) some cases have held that a contract of employment with a partnership is not terminated by the death of one part

cer.

The reported case (MORELAND V. CREDIT GUIDE PUB. Co. ante, 256) holds that the accidental destruction by fire of records used by a corporation to furnish information to its inquirers and subscribers to its Credit Guide, which seriously impairs temporarily the profitable conduct of the business, does not justify the cancelation of a contract for the services of one whose duties in part involve the Use of such records, where it continues to publish its Credit Guide, and the employee's usefulness does not depend entirely on the use of the destroyed records.

It has been held that an employer, by selling his business during the term of a contract to hire a truck and its driver to haul lumber for one year, as the business of the hirer warrants, violates no express or implied term of the contract of employment, and consequently gives the employee no right of action for damages as for a breach

of the contract. Langenberg v. Guy (1926) — Cal. App. —, 247 Pac. 621. The court said, quite irrespective of whether the contract might or might not be regarded as akin to those contracts of sale where the buyer's agreement is to take such articles as the exigencies of his business may require, there were considerations pointing unerringly to the conclusion that the employer did not impliedly obligate himself not to sell his business during the period of employment; that he did not bind himself to furnish the employee with any particular amount of lumber for hauling, nor agree to compensate him except for goods hauled as when warranted by the business. "Respondent therefore assumed certain risks which were every whit as fatal to his right to haul lumber throughout the year as the sale of appellant's business would be. Those other risks were left altogether uncovered by the contract. They are risks against which it cannot be said that there was any protection by implication. For example, since appellant was obligated to employ the truck and its driver only so far as his 'business warrants,' it is clear that if, during any part of the year, the prices of lumber had declined to a point where the business could not be carried on with profit, he could have closed his establishment and could have held his lumber for better prices, even though respondent may have been left for the better part of the year without any lumber to haul. Or appellant might have had labor troubles with his workers, such as strikes, which would have made it inexpedient for him to endeavor to move any lumber during the greater part of the year." G. S. G.

FRANCIS H. HANNAN

V.

WILLIAM HANDY, Appt.

Connecticut Supreme Court of Errors - July 3, 1926.

Mechanics' liens, § 9ł

owner.

(104 Conn. 653, 134 Atl. 71.)

-one contracting for sale of completed house as

1. Where an owner of real estate contracts to sell it to another and build

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