which he presented, was put upon inquiry as to the same facts. Defendant at the trial testified that he was not in the picture show house on the 17th of February, but that he was at work on a ranch. This contention of his would at once suggest the finding of other evidence in the nature of alibi proof and would ordinarily lead to an inquiry by his counsel as to what persons the defendant had been with, seen, or talked to at the important time. It cannot be said, we think, that the evidence claimed to have been newly discovered was such as could not have been procured with reasonable diligence at the trial. No abuse of discretion is therefore shown in denial of the motion. The judgment and order are affirmed. We concur: CONREY, P. J.; SHAW, J. (38 Cal. App. 8) 1. TRIAL 343-REVIEW IMPLIED FIND INGS. 8. NEW TRIAL 75(4) DISCRETION OF In action for negligence, where there was verdict of $1 for plaintiff, it will be assumed, on appeal from order denying plaintiff's motion for new trial of issue as to extent of damage sustained, in absence from record of evidence on question of defendant's negligence, that court considered that evidence did not prove defendant negligent. Appeal from Superior Court, Los Angeles County; Louis W. Myers, Judge. Action by Charles E. Donnatin against the Union Hardware & Metal Company. Verdict for plaintiff, and from an order denying a motion to set aside part of the verdict fixing damage at $1 and to grant a new trial of the issue as to damage sustained, plaintiff appeals. Affirmed. Horace S. Wilson and Frank G. Tyrrell, both of Los Angeles, and W. W. Middlecoff, of Visalia, for appellant. John Murray Marshall and James S. Bennett, both of Los Angeles, for respondent. In action for negligence, where defendant claimed contributory negligence, verdict of $1 for plaintiff implied findings adverse to defendant upon the issue as to its own negligence and plaintiff's alleged contributory negligence. 2. APPEAL AND ERROR 878 (2)-REVIEW-gent operation of an automobile, sued to reQUESTIONS REVIEWABLE. In action for negligence, where defendant claimed contributory negligence, verdict of $1 for plaintiff implied findings adverse to defendant upon the issue as to its own negligence and plaintiff's contributory negligence, which by its failure to appeal or ask for new' trial must be deemed a final determination of such issues upon plaintiff's appeal from order denying motion to vacate verdict in so far as it fixed damage at $1. 3. NEW TRIAL 75(4)-Grounds INADE QUACY OF DAMAGES. In personal injury action, inadequacy of damages awarded by jury may constitute ground for the granting of a new trial of the case on its merits. -9 SHAW, J. Plaintiff, alleging that he was injured as the result of defendant's negli cover damages for such injuries. The answer of defendant denied that it was guilty of negligence, alleged contributory negligence on the part of plaintiff, and denied that he suffered damage in any sum whatsoever. Upon the issues so joined the case was tried before a jury, which rendered a verdict in favor of plaintiff, wherein his damage was assessed at $1, and judgment was entered in accordance therewith. In due time, and pursuant to notice given, plaintiff moved the court to set aside and vacate that part of the verdict only wherein Error as to DISCON- the jury fixed the amount of his damage at $1 and grant him a new trial of the issue as to the damage sustained as the result of defendant's negligence, which motion was based upon the ground that the sum so fixed was grossly inadequate and that the evidence was insufficient to justify the verdict 4. NEW TRIAL 5. NEW TRIAL 6-DISCRETION Of Court. Application for new trial is addressed to in so far as it was found that plaintiff's dam sound discretion of trial court. 6. APPEAL AND ERROR 977(1)—REVIEW DISCRETION OF COURT. age was $1 and no more. The motion was made upon the minutes of the court, and all the evidence touching the issue as to damage only, omitting therefrom evidence as to other issues, is embodied in a statement thereof settled and allowed by the court and presented in support of the appeal prosecuted by plaintiff from the order of court denying the motion so made by plaintiff. [1, 2] The verdict of the jury in favor of plaintiff implied findings adverse to the de fendant upon the issue as to its own negligence and plaintiff's alleged contributory negligence. By its failure to appeal or ask for a new trial, these implied findings, if fairly made, must be deemed a final determination of such issues as fully as though defendant, after filing its answer, had stipulated to the facts so found. As to the amount of plaintiff's damage, the finding was likewise adverse to defendant, but plaintiff, being dissatisfied therewith, asks that as to this finding, or part of the verdict, it be set aside and a new trial granted as to such issue. taining the opinion that defendant was not guilty of the negligence charged nevertheless agreed to surrender their views in consideration of other jurors consenting to the trifling award made. As shown by the evidence, there was no contest as to the extent of plaintiff's injuries; hence the real subject of the trial was the question of defendant's alleged negligence, as to which there was no justifiable verdict. Nevertheless the verdict rendered against defendant was so insignificant in amount that, had it moved for a new trial, [3, 4] Assuming, as found by the jury, that no action by any court, other than a denial defendant was legally liable therefor, the of such motion, is conceivable. Hence it award of $1 made to plaintiff as damage for would work a grave injustice upon defendthe injury sustained is, upon the evidence ant to force it to a new trial of the issue as presented, grossly inadequate, and there is to damages only, with the issue as to liabilno room for controversy as to the fact that ity, upon which no verdict other than in inadequacy of damage in a suit of this char- name had been rendered, forever closed acter may constitute ground for the granting against any inquiry. "An examination of of a new trial of the case on its merits. It all the evidence relating to the injury and may likewise be conceded, upon numerous its cause and the conduct of the plaintiff, as authorities in this and other jurisdictions (see Duff v. Duff, 101 Cal. 4, 35 Pac. 437; San Diego Land, etc., Co. v. Neale, 78 Cal. 64, 20 Pac. 372, 3 L. R. A. 83; Lake v. Bender, 18 Nev. 361, 4 Pac. 711, 7 Pac. 74; Simmons v. Fish, 210 Mass. 563, 97 N. E. 102, Ann. Cas. 1912D, 588; Doody v. Boston & M. R. R. Co., 77 N. H. 161, 89 Atl. 487, Ann. Cas. 1914C, 846), that where there has been an erroneous trial of a litigated issue, which is disconnected and separable from other issues, in the trial of which it is made to appear there was no error, a new trial may be granted as to the specific issue affected by the error committed. "The guiding principle is that, although a verdict ought not to stand which is tainted with illegality, there ought to be but one fair trial upon any issue, and that parties ought not to be compelled to try anew a question once disposed of by a decision against which no illegality can be shown." Simmons v. Fish, supra. well as of defendant's agents, might show [7-9] Every intendment must be indulged We concur: CONREY, P. J.; JAMES, J. (103 Wash. 489) STATE v. HOOD. (No. 14711.) (Supreme Court of Washington. Sept. 16, 1918.) [5, 6] An application for a new trial in any case, however, is addressed to the sound discretion of the trial court, and its action thereon will not be disturbed by an appellate court, unless an abuse of such discretion is affirmatively shown. In the instant case the amount of $1 awarded plaintiff as damages for the injuries sustained, if the facts were such as to render defendant legally liable therefor, is, upon the evidence presented, so grossly absurd that it furnishes convincing proof that in order to reach an agreement 1. WITNESSES the verdict was the result of unwarranted concessions of convictions made by each of two opposing factions of the jury, one of which conscientiously believed that defend. ant should prevail in the action, and the other equally conscientious in the opinion that plaintiff should recover damages commensurate with the injuries sustained. It is apparent, we think, that those jurors enter 405(1)—IMPEACHMENT-COL LATERAL MATTERS. A party is bound by the testimony of an adverse witness upon a collateral question. 2. WITNESSES 414(1) - CORROBORATION— COMPETENCY. In prosecution for murder, where principal witness testified that two suitcases belonging to murdered woman were taken by witness and accused to accused's room and shown to woman with whom accused was living, and that one suitcase was removed by such woman the following Where confessed accomplice testified that he and accused had taken murdered woman's suitcases to accused's room, evidence discovered after trial that accomplice had, about 3 o'clock on morning of murder, inquired number of accused's room, did not go to issue of fact or tend to disprove story told by principal witnesses, where accused and woman with whom he lived testified that accomplice had brought suitcases to the room during the night prior to 3 o'clock. 5. CRIMINAL LAW 1037(1)—APPEAL-PRESERVATION OF ERROR-MISCONDUCT OF PROSECUTOR. Alleged misconduct of prosecutor during his argument will not be considered on appeal, where no objection thereto was made at the time, and no opportunity given court to correct the error by admonition, discipline, or by admonishing jury. CHADWICK, J. Appellant was convicted of the murder of one Margaret Braun. The murder occurred on Sunday night, November 11, 1916. At the time the woman was murdered certain of her property was carried away in two suitcases. The principal witness for the state was James Weston, who, by his confession, makes himself an accessory to the crime. His testimony is that after the murder the suitcases were carried by appellant and himself to the appellant's room in the Granite Block. The appellant, who at the time and for some time prior thereto had been living with a woman by the name of Vivian Tozier, testified that after they had gone to the room of the appellant they examined the property, and that the Tozier woman said that the plunder was worthless, and insisted that the suitcases be removed from the rooms; that Weston took one of the suitcases and left it in a café, the other being removed on the next night by the Tozier woman, who left it in a stairway near the Tourist Hotel, where the murder was committed. The appellant and the woman testified that she was not out of the apartments occupied by them between Sunday afternoon and the following Wednesday morning. This made a direct conflict in the testimony between the appellant and the woman on the one side and Weston on the other. She was asked on cross-examination if as a matter of fact she was not at her barber shop at the hour of 1:15 on Monday morning, November 12th, where she remained five minutes or more, and that either in going or returning therefrom she had not been spoken to by a police She denied officer by the name of Whalen. that this was so. The police officer was called in rebuttal. He testified that he saw her on Monday morning on the street; that he saw her go into her barber shop; that she was followed at some distance by two men; that when they saw him they stood over on the curb line and looked into the shop at her and looked at him; that the time was about a quarter after 1 o'clock; that after she left the shop she went past him, saying, "Did you speak to me, officer, when you went by?" That he replied, "No, I did not speak to you." She said, "Well, I thought you did." He said, "If I had of spoken to you, you would have heard me." He further testified that she then went back to the shop, but before doing so said, "There was some men wanted me to get them some booze, but I did not do it." That she passed on down the street; that one of the men, to whom he had referred, whistled to her, then called her, and she walked across the street and talked to him for a few minutes, after which the three of them went on to the Buckley Café. [1] Counsel for appellant objected to this testimony upon the ground that it was an attempt to impeach the witness upon a colThis is the first error aslateral matter. signed. That a party is bound by the testimony of an adverse witness upon a collateral question is well established. Schuman, 89 Wash. 9, 153 Pac. 1084, Ann. Cas. 1918A, 633. State v. While counsel suggests the rule, they misconceive the nature and character of the testimony offered to impeach the witness. It was neither collateral nor irrelevant. It went to the subject-matter of the inquiry. The disposition of the suitcases was a material circumstance and most essential to the establishment of the identity of the murderers. If the witness had testified that she was an unmarried woman the state would have been bound by her answer, for that fact would have been entirely collateral and irrelevant; but if she had testified that she was not in her room at the time the witness says she was there and took the suit case away, the state could prove her pres-ed for the purpose of proving that he had ence by other witnesses for two reasonsher whereabouts at the time became an issuable circumstance in the chain of events, and her credibility as a witness became an issue of fact for the jury. made such application. The court held that "ground for impeachment had been laid upon his cross-examination, and we think that the testimony was properly received either in rebuttal or as impeaching testimony." See, "An inquiry touching the capacity of a wit- also, State v. Stone, 66 Wash. 626, 120 Pac. ness to give correct testimony is not collateral | 76. 7 Enc. of Ev. 86. * or irrelevant, within the meaning of the rule." [2, 3] The witness. Vivian Tozier having "witness' acts variant from his testimony testified that she had not left her rooms beon the stand may ordinarily be shown to im- tween Sunday afternoon and Wednesday peach him. Where a witness testifies morning, and having denied upon cross-exto the ideals, conduct, acts, intent, or motives of himself, * * specific acts of his at vari-amination that she had gone to her barber ance with his representations may be proved." shop or that Officer Whalen had spoken to her, Id. 149. the testimony was properly received in rebuttal to sustain the credibility of the witness Weston, and to impeach the credibility of the witness Tozier. This assignment is without merit. "The acts and conduct of a witness relative to the matter in controversy which are inconsistent with his testimony, likewise his motives, interest, or animus, as connected with the cause, or with the parties thereto, may be proven for the purpose of weakening the force of his testimony. And for the same purpose it is proper to admit evidence of statements made by the witness relative to matters material to the issues contradictory of his testimony on the trial. As to all of these matters, if a witness denies or fails to admit the imputed act, conduct, motive, interest, animus, or contradictory statement when interrogated about them on crossexamination, he may be contradicted by other testimony proving them." Stewart v. State, 42 Fla. 592, 28 South. 815. In Commonwealth v. Goodnow, 154 Mass. 487, 28 N. E. 677, which was a prosecution for keeping intoxicating liquors with intent to unlawfully sell the same, a witness testified that he had not drunk intoxicating liquors on the premises within two years. It was held that he might be contradicted by evidence tending to show that he had been intoxicated repeatedly during that time. In State v. Watson, 102 Iowa, 651, 72 N. W. 283, a witness testified that he was never at a certain place in his life. The state was permitted to show that he was there on or about a particular date. The testimony was received not only for the purpose of impeaching the witness, but in rebuttal of the main issue. In Fitzgerald v. Williams, 148 Mass. 462, 20 N. E. 100, the witness denied a former visitation to a house of ill fame. It was held competent to prove the fact as tending to contradict him. In De Sailly v. Morgan, 2 Esp. 691, the witness testified that he had paid much attention to the morals as well as the education of the boys of a certain school. Lord Kenyon held that a letter written by him which contained immoral passages that were inconsistent with the duty of a preceptor was admissible. [4] The next error assigned is that the appellant was convicted upon the uncorroborated testimony of the witness Weston, and that the court erred in denying a new trial on the ground of newly discovered evidence. After the trial one Foster made affidavit that at or about 3 o'clock in the morning after the murder had been committed Weston came to his room in the Granite Block, and in quired the number of appellant's room and Both appellant that he directed him to it. and the Tozier woman testified that Weston had been in their rooms before. The woman had testified that he had come to their room between 12 and 1 o'clock on the night of the murder with two suitcases. Appellant testified in the same way, saying that Weston had come about 1 o'clock; that he took one suitcase away and returned about 3 or All the witnesses 4 o'clock in the morning. agreed that Weston had been in the apartments occupied by the appellant and the Tozier woman at least two hours before it The is said that he inquired of Foster. testimony offered goes to no issue of fact, and if taken as true would not in any way indicate that the story told by the three principal parties to the transaction was not also true. If Weston's presence in appellant's apartments at an earlier hour were denied, a different question would be presented. [5] It is also assigned that counsel for the state was guilty of misconduct in that his argument to the jury was improper; no objection was made at the time, and no opportunity given to the court to correct the error if it be such by admonition, discipline, or by admonishing the jury. The record is Although it seems not to have so impress-made by affidavit filed subsequently. The obed counsel for either party to this appeal, it occurs to us that this court has held in line with these authorities. In State v. Burton, 27 Wash. 528, 67 Pac. 1097, the defendant testified that he had not solicited an opportunity to plead guilty to jection is not timely, and under the rule announced by this court in State v. Johnson, 173 Pac. 723, where former decisions are collected, it will not now be considered. [6] All of the other assignments of error go to the sufficiency of the evidence. It will tails of the murder or the events following it. It is enough to say that the jury was convinced beyond a reasonable doubt of the guilt of the appellant. The testimony of the state was ample, if believed by the jury, to sustain the verdict rendered. Being thus sustained, the judgment is affirmed. MAIN, C. J., and MOUNT, HOLCOMB, and MACKINTOSH, JJ., concur. (103 Wash. 465) HOFFMAN v. SCHNATTERLY. (No. 14657.) (Supreme Court of Washington. Sept. 10, 1918.) 1. PLEADING 236 (2)—AMENDMENT OF REPLY-DISCRETION OF Court. Under Rem. Code, § 308, relating to the allowance of supplemental pleadings, the amendment of a reply after the first trial of the case was a matter entirely within the discretion of the trial court. 2. TRIAL 408-RESETTING CASE FOR TRIAL -APPEARANCE-PREJUDICE. Whether a case was regularly noted to be set for trial after the setting aside of a default by consent was immaterial, where defendant had notice of the time and place of trial, and appeared with counsel and witnesses, and went to trial. Department 2. Appeal from Superior Court, Spokane County; R. M. Webster, Judge. Action by D. C. Hoffman against J. M. Schnatterly. Judgment for plaintiff, and defendant appeals. Affirmed. Plummer & Lavin, of Spokane, for appellant. L. K. Deller, of Spokane, for respondent. MOUNT, J. This action was brought up on a promissory note. After issues were joined, the case was tried to the court without a jury. The court thereupon took the case under advisement, and, while he was considering it, the plaintiff filed a motion for leave to amend the reply. This motion was granted, and the case was afterwards assigned for retrial. The defendant's attorneys did not appear at the time for the retrial, and a default judgment was entered. Afterwards this default, by consent of the court and all the parties, was set aside, and the case reset for trial. Defendant moved to vacate the setting upon the ground that the case was not set for trial in accordance with the rules of the court. This motion was denied and the case was retried and resulted in findings of fact and judgment in favor of the plaintiff. The defendant has appealed. [1] He argues, first, that the court erred in permitting an amendment of the reply after the first trial of the case. The amendment of the reply was a matter entirely within the discretion of the trial court. Section 303, Rem. Code. It is not claimed that this discretion was abused. [2] Appellant next argues that the case was not regularly noted to be set for trial in accordance with the rules of court. Whether it was regularly noted or not is entirely immaterial. The appellant had notice of the time and place of the trial. He appeared with his counsel and his witnesses, and a trial was had. There is no showing that any prejudice resulted by reason of the fact that the case was not regularly noted to be set for trial. The two points above considered are the only points made by the appellant in his brief. It is plain that no prejudicial error was committed by the trial court upon either of these points. The judgment is therefore affirmed. On appeal, in action to quiet title, from judgment providing plaintiffs, contracted purchasers of lots, should have 6 months after entry in which to meet payments, etc., 6 months specified having elapsed, it will be directed that plaintiffs may have 30 days after remittitur is filed in which to make payments due. Department 1. Appeal from Superior Court, Kitsap County; A. W. Frater, Judge. Action by George W. Trahey and wife against Walter B. Allen and wife and others, wherein James W. Carr intervened. From the judgment, plaintiffs and the intervener appeal. Modified in part; otherwise, affirmed. Vince H. Faben, of Seattle, and William C. Bading, of Bremerton, for appellants. Jas. B. Metcalfe and Walter B. Allen, both of Seattle, for respondents. MAIN, C. J. The plaintiffs brought this action for the purpose of quieting title to thre certain lots in the city of Bremerton. The defendants Walter B. Allen and wife answered, claiming that the contract under which the plaintiffs were in possession of the property had been forfeited, and praying that the action be dismissed, and that they be declared to be entitled to the possession of the property. James W. Carr intervened, claiming title through an execution sale. The other defendants are not before this court, and no reference need here be made to them. The trial resulted in a judgment establishing the title of Allen and wife, subject to the right of the plaintiffs under their contract of purchase, provided they should, within 6 months after the entry of the judg |