Evergreen Farm v. Attalia Land Co.

• Decision Date: 12 May 1916
• Docket Number: 13263.
• Citation: 157 P. 487,91 Wash. 192
• Parties: EVERGREEN FARM v. ATTALIA LAND CO.
• Court: Washington Supreme Court

157 P. 487

91 Wash. 192

EVERGREEN FARM v. ATTALIA LAND CO.

No. 13263.

Supreme Court of Washington

May 12, 1916

On Rehearing July 15, 1916.

Department 2. Appeal from Superior Court, Walla Walla County; Edward C Mills, Judge.

Action by the Evergreen Farm against the Attalia Land Company. Judgment for plaintiff, and defendant appeals. Remanded, with instructions.

Pedigo & Smith, of Walla Walla, and A. E. Gallagher, of Spokane, for appellant.

B. S Grosscup and W. C. Morrow, both of Tacoma, for respondent.

BAUSMAN J.

Plaintiff's farm is irrigated from the canals of defendant, which is now sued in damages from flooding. These damages are to land and improvements, in removal of a dwelling and baled hay, and lastly in expense of buying at defendant's alleged request, and during several seasons operating, a pumping engine to minimize the injury. The verdict of the jury, which was general, exceeds the total of the final group of items.

At the threshold we find a written agreement of plaintiff in buying the land that mischiefs of this sort should be charged against the irrigation company only in case its negligence was gross. On that basis the defendant offered and the lower court rejected instructions, the jury being advised that defendant was liable for ordinary negligence. The lower court was correct. Defendant is a corporation of the public service class, which exercises eminent domain, and which while allowed private profits, exists for public uses. It is clearly subject to the policy which forbids these creatures to exempt themselves from negligence by contract.

Error is assigned on the admitting of proof under the following situation: Plaintiff's witness Loose, having said that he could state the expense of minimizing the damage, was asked:

'Refer to any memorandum that you have made yourself and state what you have expended in years 1912, 1913, and 1914, prior to December, 1914. (Question objected to 'for the reason that it is incompetent, irrelevant, and immaterial.' Objection overruled, and exception allowed.)'

The witness then answered that he did not have the memorandum after all, but could give the amounts, which he then stated, for the purchased engine and for labor and material in the pumping during three years; nor was there other testimony or objection on this head.

The sweeping formula, 'incompetent, irrelevant, and immaterial,' is generally meaningless. We have had occasion to rule adversely on it before. Anderson v. New York Life Ins. Co., 34 Wash. 623, 76 P. 109; Sackman v. Thomas, 24 Wash. 660, 64 P. 819; Coleman v Montgomery, 19 Wash. 610, 53 P. 1102. In this instance one would say that the objection was merely against referring to the memorandum. Indeed, this may be all that counsel had in mind then, for when the witness did give the data, without the memorandum, the objection was not renewed. Yet now it is urged in this court as good against a testifying to sums actually paid, instead of to sums reasonably disbursed. This use of the objection we cannot now sustain. Nor does Hunt v. Allison, 77 Wash. 58, 137 P. 322, aid the objector, for we distinctly noted there that the objection was faulty, and that it was in proffered instructions and by moving to take the case from the jury that the objector had properly supplemented it. That case...