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quired a fee to be paid covering the increased | so that it may reasonably regulate the length cost for paper, publishing and binding argu- of the arguments and the number that may inents proposed in favor of the bill. This is be submitted. This is necessary in the internot an unreasonable requirement, and no ests of the public revenues, as it is easy to provision of the Constitution is cited to us see that, if an unrestrained license was given which proclaims such provisions invalid. the citizen in this regard, the costs of submitThese provisions must therefore be held valid. | ting a measure might be made to exceed the We are of the opinion that the secretary possible revenues of the state. But this is of state complied with the law when he de- not the question at issue. The question at manded the cost of the paper and of print- issue is: Is it a due compliance with a coning and binding these arguments; for the stitutional provision, which requires publicstatute expressly so provides. ity to be given to an initiative measure with the arguments for and against the same, to give publicity to the measure without such CROW, C. J., and MORRIS and PARKER, arguments? I think it is not, and that the JJ., concur. majority are in error in deciding otherwise.

The writ is therefore denied.

FULLERTON, J. (dissenting). I am unable to concur in the foregoing opinion. In my judgment the construction there put upon the statute permits the submission of an initiative measure to the vote of the electors in a manner violative of the Constitution. It will be observed from the constitutional provision quoted that the requirement of the Constitution is that publicity be given to both the measure submitted and the arguments filed for and against the same, and that no distinction is made between the measure itself and the argument in this regard, but that both are treated as if of the same degree of importance. It will be observed further that the language of the Constitution is mandatory; that the requirement is that the Legislature shall provide methods of publicity of the measures and arguments submitted to the electors, leaving no discretion in that body as to whether or not it will comply with the requirement. From these provisions of the Constitution it seems to me to follow, as of course, that any act of the Legislature relating to giving publicity to an initiative measure which fails to provide for the giving of the same publicity to the arguments for and against the measure as it does to the measure itself is violative of the constitutional provision. As construed by the majority this is the effect of the act in question. It requires the giving of publicity to the measure itself, but leaves it optional with the proponents of the arguments whether or not publicity shall be given to them; that is, they are given publicity if the costs thereof are paid by the proponents; otherwise they are not. As I say, this is not, in my judgment, a compliance with the constitutional provision, as that instrument not only contemplates, but declares in terms, that publicity shall be given to the arguments for and against a measure, as well as to the measure itself.

I grant the proposition that the Legislature may make the payment by the proponents of a measure of all or of some part of the costs of submitting it to the electors a condition precedent to its submission, and I grant al

(80 Wash. 603) STATE . PAYSSE. (No. 11765.) (Supreme Court of Washington. July 27, 1914.)

1. LIBEL AND SLANDER (§ 159*)-OFFENSESSLANDER MALICE.

In a prosecution under Rem. & Bal. Code, § 2433, making it a misdemeanor for any person to maliciously charge a woman with unchastity, and declaring that every slander shall be deemed malicious unless justified, an instruction on the question of malice is unnecessary, where the defendant did not attempt to justify the slander but merely denied it.

[Ed. Note.-For other cases, see Libel and Slander, Cent. Dig. § 444; Dec. Dig. § 159.*] 2. LIBEL AND SLANDER (§ 156*)-OFFENSESCORROBORATION.

Under Rem. & Bal. Code, § 2433, making it a misdemeanor to charge any woman with unchastity, and section 2434 declaring that no conviction shall be had solely upon the testimony of the woman slandered, the injured female need not be corroborated as to mere matters of inducement showing that she was within the protection of the statute, where the other testimony showed the slander.

[Ed. Note.-For other cases, see Libel and Slander, Cent. Dig. §§ 437-441; Dec. Dig. § 156.*]

3. CRIMINAL LAW (§ 1130*)—APPEAL-DISCRETION OF APPELLATE COURT.

Upon an appeal from a conviction, the appellate court may in its discretion allow errors to be urged in a supplemental brief which were not mentioned or assigned in the principal brief.

|
[Ed. Note.-For other cases, see Criminal
Law, Cent. Dig. §§ 2956, 2965-2970, 3205;
Dec. Dig. § 1130.*]

4. CRIMINAL LAW (§ 1054*)-APPEAL-PRES-
ENTATION OF GROUNDS OF REVIEW IN
COURT BELOW-NECESSITY.

Unless excepted to below, accused cannot on appeal question the admission of evidence. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 2662-2664; Dec. Dig. § 1054.*]

Department 2. Appeal from Superior Court, King County; J. T. Ronald, Judge.

Mattie T. Paysse was convicted of a misdemeanor in justice court and appealed to the superior court. From a second conviction, she again appeals. Affirmed.

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

142 PACIFIC REPORTER

FULLERTON, J. The appellant was convicted in a justice court of King county of the statutory misdemeanor defined in section 2433 of the Code (Rem. & Bal.) She appealed from the judgment of conviction to the superior court of King county, where she was again tried and again convicted of the same offense, and sentenced to pay a fine of $50. From the last-mentioned conviction, she appeals to this

It is there proGill, Hoyt & Frye, of Seattle, for appel- | concluding sentence of the section of the lant. John F. Murphy and S. H. Steele, both statute defining the offense. vided that every slander mentioned in the of Seattle, for the State. statute shall be deemed to be malicious unless justified, and shall be justified when the language charged as slanderous, false, or defamatory is true and fair, and was spoken with good motives and for justifiable ends. Here there was no justification or attempted justification of the speaking of the slanderous words, either in the evidence on part of the state or of that on part of the defendant. The state, after introducing its preliminary proofs, introduced evidence tending to show the speaking of the slanderous words. The appellant contented herself with a denial that she had spoken them. In such a case the question of malice is not involved. It The court therefore was is presumed from the mere speaking of the slanderous words.

court.

The appeal was taken and perfected in this court by counsel who represented her on the trial in the superior court. They have filed a brief assigning error only on the giving of certain instructions and on the refusal of the court to give a certain requested instruction. After the appeal had been perfected and the brief filed, the appellant employed new counsel to represent her, causing them to be substituted in the place and stead of her original counsel. Her new counsel have filed a supplemental brief and additional assignments of error, assigning that the court erred in the admission of certain testimony. The questions suggested for reversal we will notice in order.

not required nor justified in instructing that the jury must find, as a matter of fact, that the slanderous words were spoken maliciously.

[2] The appellant requested the court to charge the jury that all of the facts charged in the complaint must be corroborated by the The court testimony of a person other than the female alleged to have been slandered. declined to so charge, and its refusal so to

[1] The statutes upon which the appellant do constitutes the second error assigned. The was convicted read as follows:

statute, it will be observed, is somewhat gen

viction shall be had upon the testimony of the woman slandered, unsupported by other evidence, but does not define the nature or The general character of the supporting evidence, or the extent to which it shall go.

"Sec. 2433. Every person who, in the pres-eral in its language; it provides that no conence or hearing of any person other than the female slandered, whether she be present or not, shall maliciously speak of or concerning any female of the age of twelve years or upward, not a common prostitute, any false or defamatory words or language which shall injure or impair the reputation of any such female for virtue or chastity or which shall expose her to hatred, contempt or ridicule, shall be guilty of a misdeEvery slander herein mentioned shall be deemed to be malicious unless justified, and shall be justified when the language charged as slanderous, false or defamatory is true and fair, and was spoken with good motives and for justifiable ends."

meanor.

"Sec. 2434. No conviction shall be had under the provisions of the preceding section of this act, upon the testimony of the woman slandered unsupported by other evidence."

In its charge to the jury, the court, after defining the issue between the state and the appellant, charged them in substance that the only question for them to consider was whether or not the appellant had spoken of and concerning the prosecuting witness the slanderous words substantially as they were set out in the complaint; that, if they so found, they would find the accused guilty, and, if they did not so find, they would find her not guilty. It is objected to the instruction that it omits the element of malice which the statute makes an ingredient of the offense; the argument being that the jury could not find the defendant guilty unless they found not only that the accused spoke of and concerning the prosecuting witness the slanderous words, but that they must also find that she spoke them maliciously. But we think the argument overlooks the

rule applicable to supporting or corroborative
evidence is that it is sufficient if it extends
to those facts which constitute the gravaman
of the offense; those facts which tend to
connect the defendant with the commission
of the offense. Evidence of the female going
to matters of inducement, and matters of
description designating the qualifications
which the female slandered must possess at
the time of the commission of the offense in
order to enable her to invoke the protection
of the statute, need not be supported or
corroborated. State v. Aton, 67 Wash. 485,
121 Pac. 980; Kenyon v. People, 26 N. Y.
203, 84 Am. Dec. 177; Harvey v. Territory
of Oklahoma, 11 Okl. 156, 65 Pac. 837; Wil-
liams v. State, 59 Tex. Cr. R. 347, 128 S. W.
1120; State v. Meister, 60 Or. 469, 120 Pac.
406.

In Kenyon v. People, supra, this language was used:

"The statute provides 'that no conviction shall be had on the testimony of the female seduced, unsupported by other evidence.' It was claimed could be had unless the prosecutrix was supby the defendant's counsel that no conviction ported by other evidence, not only as to the promise and illicit intercourse, but also as to ous chaste character. The judge, however, in the facts of her being unmarried and her previsubstance instructed the jury that no corroboration or support was necessary as to her being

unmarried or as to her chastity. On the point | well taken. It is a principal applicable to of her being 'unmarried,' she was abundantly criminal as well as civil cases that objecsupported by other evidence; but, as to her previous chastity, there was no affirmative testi- tions to evidence or matters or proceedings mony, as there could not well be, except her occurring at the trial, not going to the jurisown. But the judge was right in his construc- diction of the court, must be presented to tion of the statute. It does not contemplate and ruled upon by the trial court before they that the female shall be supported or corroborated upon every material fact alleged. It is can be made available upon appeal. As was enough if the support extends to those facts said by the court in State v. Tamler & Polly, which go to prove the offense charged. Νο 19 Or. 531, 25 Pac. 72, 9 L. R. A. 853: corroboration or support is necessary to the points which merely indicate the person to be protected by the statute, viz., that she was an unmarried female and of previous chaste character. It was only necessary that she should be supported by direct evidence or proof of circumstances, as to the facts constituting the crime. These were the promise and the intercourse."

"As this is an appellate tribunal, constituted to revise and correct the errors committed by the trial court, it is only when that court has acted, and the act is claimed to be error and disclosed by the record, that such error becomes the subject of our power and duties."

Pac. 489.

The judgment is affirmed.

CROW, C. J., and MOUNT, PARKER, and MORRIS, JJ., concur.

See, also, State v. Craemer, 12 Wash. 217, 40 Pac. 944; State v. Hyde, 22 Wash. 551, 61 In the case before us the prosecuting wit-Pac. 719; State v. Melvern, 32 Wash. 7, 72 ness testified to no fact tending to connect the appellant with the commission of the offense charged against her. Her testimony went no further than to show that she was a person entitled to the protection of the statute. She testified that she was a woman over the age of 12 years and was not a common prostitute. The testimony tending to connect the appellant with the commission of the offense was given in evidence by the persons to whom and in whose presence the slanderous words were spoken. Under the rule above cited, the prosecuting witness did not have to be supported or corroborated by other evidence upon the facts to which she

testified, and hence the instruction, if given in the form requested, would have been misleading and confusing. The evidence presented did not call for an instruction on the question of supporting evidence, and there was no error in the refusal of the court to instruct upon that question.

[3] The errors assigned and discussed in the second or supplemental brief relate to evidence of slanderous words spoken of and concerning the prosecuting witness, of the same nature as those charged in the complaint, to other persons at different times and places from those charged in the complaint. This evidence was introduced in rebuttal for the purpose of impeaching the appellant, after she had specifically denied speaking the slanderous words. The state objects to the consideration of these assignments in the court on two grounds: First, because the assignments come too late, having been made after the appeal had been taken and perfected on other grounds, and after the time for taking a second appeal had expired; and second, because no objection was taken to the introduction of the evidence in the court below. The first part of the objection is not well taken. The appeal from the judgment below was properly perfected in this court, and it is within the discretion of the court to allow errors to be urged before it in a supplemental brief, although not mentioned or assigned in the principal brief on the appeal.

[4] But perhaps this question is not very material, since we find the second ground

(80 Wash. 673) SINNES v. DAGGETT et al. (No. 11937.) (Supreme Court of Washington. July 30, 1914.)

1. MASTER AND SERVANT (§ 250, New, vol.
16 Key-No. Series)-AWARD BY INDUSTRIAL
INSURANCE COMMISSIONERS-JURY QUESTION
-MATTERS OF LAW.

1911, C. 74) § 5, subd. "b," defines permanent
The Workmen's Compensation Act (Laws
total disability as the loss of both legs, both
arms, one leg and one arm, etc., while subdivi-
sion "f" defines permanent partial disability as
the loss of one foot, one leg, or one or more
fingers. Appellant's complaint on his appeal
from the award of the commissioners alleged
a permanent injury, consisting of the loss of
several fingers. Held, that the question wheth-
disability or a permanent partial disability was,
er appellant's disability was a permanent total
under the statute, one for the court, and he
was not entitled to jury trial thereon.
2. MASTER AND SERVANT ($ 250, New, vol.
16 Key-No. Series)-INJURIES TO SERVANT-
WORKMEN'S COMPENSATION ACT.

Act

Under Workmen's Compensation (Laws 1911, c. 74). § 5, subd. "f," providing that for any permanent partial disability a workman shall receive compensation in a lump sum in an amount to be decided upon by the Industrial Insurance Department, but not in any case to exceed the sum of $1,500, and that the loss of one major arm at or above the elbow shall be deemed the maximum permanent partial disaing awarded in the proportion which the disbility, compensation for any other disability beability bears to the maximum, the amount of an award for permanent partial disability rests in the discretion of the department.

3. MASTER AND SERVANT (§ 25034, New, vol. 16 Key-No. Series)-INJURIES TO SERVANTWORKMEN'S COMPENSATION ACT.

Under Workmen's Compensation Act (Laws 1911, c. 74) § 20, providing that any employer or workman aggrieved by a decision of the Industrial Insurance Department may have it reviewed by a proceeding in the nature of an appeal, but that matters resting in the discretion of the department shall not be subject to review, an award of $1,200 in favor of a servant who suffered a permanent partial disability, in the loss of several fingers, cannot, on appeal by the servant, be set aside as arbitrary,

as the maximum amount authorized by statute for any partial disability including the loss of one arm, or leg, is only $1,500.

4. MASTER AND SERVANT (§ 250, New, vol. 16 Key-No. Series)-AWARD BY INDUSTRIAL INSURANCE COMMISSIONERS INTERLOCUTORY ORDERS.

APPEAL

--

On appeal from an award by the Industrial Insurance Department, where the presiding judge at the first hearing made an interlocutory order awarding appellant a jury trial, it was not error for the judge presiding at the final hearing to rescind that order; such orders being subject to change and correction.

Department 2. Appeal from Superior Court, King County; Boyd J. Tallman, Judge.

Claim by Thomas Sinnes for compensation for personal injuries. From an award by Floyd L. Daggett and others, as Commissioners of the Industrial Insurance Department, the claimant appealed to the superior court, and from a judgment affirming the award, he again appeals. Affirmed.

Arctander & Jacobsen, of Seattle, for appellant. W. V. Tanner and John M. Wilson, both of Olympia, for respondents.

PARKER, J. This is an appeal from a judgment of the superior court for King county, disposing of an appeal to that court from an award made to appellant by the industrial insurance commissioners for injuries received by him while engaged in a hazardous occupation.

In his complaint, filed in the superior court upon his appeal from the award of the commissioners, appellant alleges:

"That at all times herein mentioned the abovenamed claimant and appellant was employed by the said Moore Logging Company and worked for it in its said logging camp as a common workman, or, more particularly, in the capacity of a 'chaser.' That such employment and work were extrahazardous in character, as defined by that certain act relating to compensation for injured workmen commonly known as the Workmen's Compensation Act and being chapter 74 of the Session Laws of the state of Washington for the year 1911. That, while claimant and appellant was so engaged and working in said place in said capacity and employment, he was, by reason of negligence attributable to the said logging company, severely and permanently injured and permanently and totally disabled, the injuries so sustained being more particularly as follows, to wit: That the first finger of his right hand has been cut off immediately above the last joint; that the three other fingers of said hand have all been cut off at and below the last joint; that the first finger of the left hand has been cut off shortly below the first joint, and the three other fingers have been entirely lost; that whatever stumps remain of the fingers on his two hands as aforesaid are, and will forever remain, stiff and entirely useless.

decision is erroneous, and does not give to the said claimant and appellant the full measure of what he is entitled to under the facts and the

law. That said award is inadequate both as to permanent partial disability as well as to permanent total disability; that said decision is not a proper application of the provisions of the said compensation act, and contrary to the facts."

When the cause came on for hearing in the superior court, counsel for the commissioners objected to a trial by a jury, which had been previously demanded by counsel for appellant, and moved for a dismissal of the appeal upon the ground, in substance, that no question of fact was involved therein triable in the superior court, and that the facts alleged in the appellant's complaint did commissioners in making the award to apnot show any error of law committed by the pellant. The cause was disposed of by the court upon this ground in favor of the commissioners, leaving their award to appellant

undisturbed.

[1-3] Counsel for appellant contend that he is entitled to an award as for "permanent total disability," and that the commissioners erred in making his award, as they did, for "permanent partial disability" only. It is true appellant alleges in his complaint that he was "permanently and totally disabled," but, when we look to his allegations specifically describing his injuries, we find that they consist only of the loss of his fingers, or, rather, portions thereof. This, by the express language of the compensation law, as we read it, amounts only to "permanent partial disability." Subdivision "b" of section 5, p. 358, Laws of 1911, reads:

"(b) Permanent total disability means the loss of both legs or both arms, or one leg and one arm, total loss of eyesight, paralysis or other condition permanently incapacitating the workman from performing any work at any gainful occupation" (followed by specifications of compensation to be paid under varying conditions).

Subdivision "f" of the same section reads: "Permanent partial disability means the loss of either one foot, one leg, one hand, one arm, one eye, one or more fingers, one or more toes, any dislocation where ligaments are severed, or any other injury known in surgery to be permanent partial disability. For any permanent partial disability resulting from an injury, the workman shall receive compensation in a lump sum in an amount equal to the extent of the injury, to be decided in the first instance by the department, but not in any case to exceed the sum of $1,500.00. The loss of one major arm at or above the elbow shall be deemed the maximum permanent partial disability. Compensation for any other permanent partial disability shall be in the proportion which the extent of such disability shall bear to the said maximum."

* That thereafter the said claimant and appellant duly filed with the said Industrial We italicize the words of the law especialInsurance Department his application for com- ly applicable here. Reading these two provipensation for said injuries under the said Work- sions together, it seems clear to us that it men's Compensation Act, and in all respects must be determined, as a matter of law, complied with its provisions in regard thereto. That on the 20th day of September, 1913, the from the allegations of appellant's complaint, said respondents rendered their decision on said that his injuries consisted only of "permaapplication for compensation, awarding to the nent partial disability," since they consisted said claimant $45 for time loss of one month and one-half, and the further sum of $1,200.00 of the loss of portions of his fingers. It is

We conclude that the judgment of the superior court must be affirmed. It is so ordered.

Even if trial by jury were a matter of right | Gove, 26 Wash. 452, 67 Pac. 256, and Philips upon questious of fact in an appeal from an v. Langlow, 55 Wash. 385, 104 Pac. 610. award made by the commissioners, as it is not, by the express provisions of section 20 of the law, the question here presented would still be one of law, determinable by the court, and not by a jury. We are of the opinion that the trial court correctly affirmed the decision of the commissioners, holding that appellant's injuries constituted "permanent partial disability" only.

It is contended that the commissioners in any event erred in not awarding appellant the maximum of $1,500 prescribed by the permanent partial disability provision above quoted. Section 20 of the act reads:

"Any employer, workman, beneficiary, or person feeling aggrieved at any decision of the department affecting his interests under this act may have the same reviewed by a proceeding for that purpose, in the nature of an appeal, initiated in the superior court of the county of his residence in so far as such decision rests upon questions of fact, or of the proper application of the provisions of this act, it being the intent that matters resting in the discretion of the department shall not be subject to review."

Manifestly the amount of the award was within the discretion of the commissioners, limited only by the prescribed maximum of $1,500. Clearly the court would not be warranted in disturbing the decision of the commissioners upon a question of this nature, unless, possibly, their decision might be reviewed by the courts upon such a question were they charged with capricious or arbitrary action in fixing the amount of their award. No such claim is made against the commissioners upon this appeal. To what extent their decisions might be reviewed and controlled by the courts for such a cause we are not called upon to determine at this time. Manifestly an award so near the maximum amount as this award is does not evidence, within itself, arbitrary or capricious action on the part of the commission

ers.

[4] Some time prior to the final hearing in the superior court appellant filed a written demand for a jury trial. Objections were filed thereto by counsel for the commissioners. At that time the then presiding judge overruled the objections of counsel for the commissioners; thus, in effect, awarding appellant a jury trial. Another judge of the same court presided at the final hearing, and, as we have seen, his ruling and decision at that time, in effect, overruled the holding as to appellant's right to a jury trial previously made. Some contention is now made that

the first ruling was conclusive and binding,

and should have controlled at the final hearing. We do not think so. Such interlocutory rulings are subject to change and correction before the final disposition of a cause in which they are made, and the fact that such rulings have been made by another judge of the court is of no consequence. Shephard v.

CROW, C. J., and MOUNT, FULLERTON, and MORRIS, JJ., concur.

(80 Wash. 609) KLINE BROS. & CO. v. NORTH COAST FIRE INS. CO. (No. 11816.) (Supreme Court of Washington. July 27, 1914.)

1. JUDGMENT (§§ 495, 497*)-PRESUMPTIONS.

In the absence of evidence to the contrary, there is a presumption that a judgment of court of general jurisdiction is regular, and the recitals in such a judgment are prima facie evidence of the facts therein stated; hence one claiming that the judgment is void for want of service has the burden of proving that fact.

[Ed. Note.--For other cases, see Judgment, Cent. Dig. §§ 5492, 933, 934, 937, 938; Dec. Dig. §§ 495, 497.*1

2. CORPORATIONS (§ 665*)—FOREign Corpora

TIONS ACTIONS-"CONTRACT."

Defendant, a Washington corporation, engaged in writing surplus line insurance in eastern states, authorized a New York corporaauthorized to issue and deliver policies in New tion to solicit insurance for it, the agent being York. Plaintiff, a Florida corporation, negotiated with defendant's New York agent a surplus policy upon goods located in Florida; the premium being paid and the policy delivered in New York. Held, that the policy was a New York contract, within Code Civ. Proc. N. Y. { 1780, authorizing a foreign corporation to mainforeign corporation for the breach of a contain in that state an action against another tract made within the state.

[Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 2571, 2573, 2595-2600; Dec. Dig. § 665.*

For other definitions, see Words and Phrases, vol. 2, pp. 1513-1534; vol. 8, pp. 7615, 7616.] 3. JUDGMENT (§ 942*)-ACTIONS UPON-Bur. DEN OF PROOF.

Where a judgment by a court of general jurisdiction of a foreign state recited that defendant entered an appearance, defendant has the burden of showing that the attorney who entered its appearance acted without authority.

[Ed. Note.-For other cases, see Judgment, Cent. Dig. § 1781; Dec. Dig. § 942.*] 4. JUDGMENT (§ 930*)-FOREIGN JUDGMENTSACQUIESCENCE-ESTOPPEL.

Where defendant, a Washington_insurance company, when sued upon a New York contract, did not repudiate the act of an attorney employed by its New York agent in entering its thereafter defeat the judgment on the ground appearance, it acquiesced therein and could not that it was not served with process and that the appearance was unauthorized.

[Ed. Note. For other cases, see Judgment, Cent. Dig. § 1760; Dec. Dig. § 930.*]

Department 2. Appeal from Superior Court, King County; Kenneth Mackintosh, Judge.

Action by Kline Bros. & Co. against the North Coast Fire Insurance Company. From a judgment for plaintiff, defendant appeals. Affirmed.

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

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