mutuality of interest in the subject to which the lots. This building was divided into four visitor's business relates. [Ed. Note.-For other cases, see Negligence, 4. NEGLIGENCE VITEES 134(3) CARE AS TO INEvidence held to show that plaintiff in going upon defendant's premises was a technical trespasser and not an invitee. storerooms of equal width save the westerly one which had 5 feet cut off for a hallway The walls were up, the roor was on, the running back to the rear of the building. studding for the partitions was set, some of the partitions were lathed, and the floors were roughed in. No doors nor windows were hung and the fronts of the storerooms were not in. Some 50 feet back from the front was a wall running east and west cutting off the rear of the storerooms and extending about eight inches into, but not crossing, the passageway along the westerly wall. Immediately off of this passage and immediately back of this rear wall of the westerly storeroom was a cement lined fur[Ed. Note.-For other cases, see Trial, Cent. This pit was uncovered, unguarded, and unnace pit 10 feet square and 8 feet deep. Dig. §§ 342, 343; Dec. Dig. 143.] [Ed. Note.-For other cases, see Negligence, Dec. Dig. 134(3).] 5. TRIAL 143-QUESTION FOR JURY-CON FLICTING EVIDENCE. A vital and positive contradiction by a party of his own witness, whom he introduces as worthy of belief, raises such conflict as to take the question to the jury. 6. NEGLIGENCE TO TRESPASSERS. 33(1)-CARE REQUIRED AS The owner of a building owes a technical trespasser no duty except to refrain from wantonly or willfully injuring him. [Ed. Note.-For other cases, see Negligence, Cent. Dig. § 45; Dec. Dig. 33(1).] 7. NEGLIGENCE 82-CARE REQUIRED AS TO lighted. About 8 o'clock on the evening of November 21, 1914, one McDonald, a man named Dorsey, and plaintiff, desiring to purchase certain electrical fixtures called "rosettes" for use in a house being built by McDonald, were directed to seek them from Kane at Hardy's plumbing shop at the rear they supposed Kane still conducted his busiof the new Osgood store building, where TRESPASSERS-CONTRIBUTORY NEGLIGENCE. Where a technical trespasser went into a ness. They first went north along Wells building in course of construction when it was street, a cross street about one-third of a dark and without a light, and fell into a fur-block west of the new building, to an uninnace pit, his own negligence was the proximate cause of his injury, and he took the risk of the attending peril. [Ed. Note. For other cases, see Negligence, Cent. Dig. §§ 112-114; Dec. Dig. 82.] Department 1. Appeal from Superior Court, King County; J. T. Ronald, Judge. Action by Rudolph Gasch and wife against E. J. Rounds and others. Judgment for plaintiffs, and defendants appeal. Reversed and remanded for dismissal. Preston & Thorgrimson and Peters & Powell, all of Seattle, for appellants. Wm. Brueggerhoff and Peterson & Macbride, all of Seattle, for respondents. closed private space leading back toward the frame building occupied by Hardy. They found this space partially blocked with lumber and piles of wood. In the darkness they despaired of finding the way through in safety, and returned to the front of the new store building on Third avenue. They entered; plaintiff, leading, went back through the westerly storeroom to its rear wall, and plaintiff passed around the end of this wall into the passageway. Seeing a light shining through the back of the building he started toward it and fell into the pit. His companions coming up struck matches, and by their light found him unconscious at the bottom of the pit. He sued ELLIS, J. Action for personal injuries. to recover for his injuries, alleging OsDefendants Osgood and wife owned two lots good's ownership of the premises, his conabutting upon the north side of Third ave tract with Rounds and wife doing business nue in the town of Renton, with a frontage as Rounds Construction Company to erect of 65 feet and running back to a depth of the building, Hardy's occupancy of the old 100 feet. Prior to the time here in question building in the rear as Osgood's tenant, Harthere had stood on the front of these lots ady's invitation to the public to pass through frame building occupied by tenants of the the new building to and trade at his store Osgoods, among them one Hardy, a plumber, with the knowledge and consent of the deand one Kane, a dealer in electrical fixtures. fendants, and negligence on the defendants' At the time here in question this building part in leaving the pit unlighted and unhad been moved to the rear of the lots, Kane guarded. Defendants by answer admitted vacating and moving across the street, but Hardy's occupancy of the building as OsHardy still remaining as a tenant of the good's tenant, but denied the invitation to Osgoods and conducting his business there- the public as follows: in. The Osgoods, through Rounds and wife, doing business as Rounds Construction Company, were erecting a two-story brick building about 65 feet square on the front of the * * They deny that the said Frank H. Osgood, or Georgina Osgood, or Susie Rounds the front part of the lot or its passageways, as gave any consent to the use of the building on access to the rear building." For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes They also set up contributory negligence of business, or where the person injured is presas an affirmative defense, which was trav-ent in the performance of duty, official or other wise." ersed by the reply. The trial resulted in a verdict for $800 in favor of plaintiff and against all the defendants. At appropriate times defendants moved for a nonsuit and for a directed verdict. Both motions were denied. From a judgment entered on the verdict all of the defendants appeal. [1] Appellants contend that respondent was not an invitee, but a trespasser, or at best a mere licensee, to whom appellants owed no duty except not willfully or wantonly to injure him. Respondent retorts that this issue was not presented by the pleadings, because in their answer appellants merely denied that either Osgood or his In an opinion reviewing many authorities, the Supreme Judicial Court of Massachusetts states the rule as follows: "It is well settled there that to come under an implied invitation, as distinguished from a mere license, the visitor must come for a purpose connected with the business in which the occupant is engaged, or which he permits to be carried on there. There must at least be some mutuality of interest in the subject to which the visitor's business relates, although the particular thing which is the object of the visit may not be for the benefit of the occupant." Plummer v. Dill, 156 Mass. 426, 427, 31 N. E. 128, 129 (32 Am. St. Rep. 463). wife or Mrs. Rounds gave any consent to the See, also, Severy v. Nickerson, 120 Mass. use of the new building, or its passageways, 306, 21 Am. Rep. 514; Hart v. Cole, 156 Mass. as access to the rear building. It is true 477, 31 N. E. 644, 16 L. R. A. 557; McCarvell that these denials are in form a negative. Sawyer, 173 Mass. 540, 54 N. E. 259, 73 Am. pregnant, and, technically construed, amount to an admission that Rounds gave consent, and that Hardy, with the knowledge and consent of all the appellants, held out the invitation. But at the trial it seems to have been assumed by the court and all of the parties that the pleadings were sufficient to present the issue of invitee or licensee. That issue was fully tried; hence we must treat it as an issue here. Gaskill v. Northern Assurance Co., 73 Wash. 668, 132 Pac. 643. St. Rep. 318; Dixon v. Swift, 98 Me. 207, 56 Atl. 761; Larmore v. Crown Point Iron Co., 101 N. Y. 391, 4 N. E. 752, 54 Am. Rep. 718; Brehmer v. Lyman, 71 Vt. 98, 42 Atl. 613; Pauckner v. Wakem, 231 Ill. 276, 83 N. E. 202, 14 L. R. A. (N. S.) 1118. The test "of of Massachusetts seems to be the best that mutuality announced by the Supreme Court has been suggested." 3 Elliott, Railroads (2d Ed.) § 1249. The rule, of course, does not apply to children of tender years. Northwestern El. R. R. Co. v. O'Malley, 107 Ill. App. 599. This court in a recent case has, in effect, sanctioned the rule as we have stated it, and has impliedly recognized mutuality of interest as its basis. Kroeger v. Grays Harbor Construction Co., 83 Wash. 68, 145 Pac. 63. [2, 3] Though unsatisfactory and in the sharpest conflict, the evidence was sufficient to take to the jury the primary question of an implied invitation to pass through the new building to the old one, to such persons as might desire to visit it for any purpose [4, 5] Under this rule was respondent here connected with the business there conduct- an invitee? We think not. True, he testified ed by the tenant Hardy. On that primary that McDonald had hired him to help wire question the verdict is conclusive upon us. McDonald's house, and had asked him to But it does not follow that respondent was help select the rosettes; that they first went such a person. Aside from the invitation to to the Renton Hardware store, and were the public generally, implied from long ac- there told "to go to Hardy, who had them," quiescence by the owner of private premises and that he was not looking for Kane. But in the general public use of a way across his in every one of these particulars he was flatpremises, a phase of the subject resting on ly contradicted by his own chief witness Mcan independent basis with which we are not Donald. McDonald, though repeatedly presshere concerned, the rule of implied invita-ed upon the subject, refused to testify that he had hired respondent for any purpose. tion may be stated as follows: Invitation He testified that he and his wife were paying a neighborly visit to respondent and his wife that evening; that he mentioned the fact that he was wiring his house, and asked respondent to go with him to get the rosettes merely for company, and that Dorsey, who was there at the time, went for the same reason; that the clerk at the hardware store told him he could get the rosettes from Kane, who was "in with Hardy in the plumbing shop in the rear of the new building"; that he knew he was not going to get the materials from Hardy, but from Kane, and was looking for Kane at the time, and that he, McDonald, was going to select the ro as distinguished from mere license is implied by law only when the visitor comes for some purpose connected with the business in which the owner or occupant is there engaged or which he permits there to be carried on, and there must be some real or supposed mutuality of interest in the subject to which the visitor's business relates. This rule, which is sustained by almost universal authority, is thus stated in 3 Shearman & Redfield, Law of Negligence (6th Ed.) § 706: "Invitation by the owner or occupant is implied by law where the person going on the premises does so in the interest or for the benefit, real or supposed, of such owner or occupant, or in the and, since no authority is cited to the contrary, we shall assume that a vital and positive contradiction by a party of a witness whom he introduces as worthy of belief (93 Wash. 274) ROBERTS v. PACIFIC TELEPHONE & RELEASE 55-INSANITY-BURDEN OF PROOF. bar of statute of limitations, and also of his reWhere injured employé, in order to avoid the lease, alleged insanity during at least four months after the accident, he had the burden of proof to show insanity, rendering him incapable of transacting ordinary business during the time alleged. [Ed. Note.-For other cases, see Limitation of Actions, Cent. Dig. §§ 712, 714; Dec. Dig. 195(4); Release, Cent. Dig. $$ 94-100; Dec. Dig. 55.] 2. DAMAGES 216(2) — ACTION — INJURIES · INSTRUCTION. raises such a conflict as to take the question (Supreme Court of Washington. Nov. 10, 1916.) to the jury, but there still remains the un-1. LIMITATION OF ACTIONS_195(4) controverted fact that respondent, before he entered the new building, was absolved from any duty to McDonald to enter it. McDonald testified that, when he found that they could not reach Hardy's store from the rear and had returned to the front of the new building, he suggested, because it was so dark, that respondent and Dorsey remain outside while he went through to the store; that as the place was so dark, he thought it would be just as well if they would wait for him. This was not denied by either respondent or any one else. Even assuming that McDonald actually had hired respondent and had been expecting to make his purchase from Hardy, and that he was actually looking for Hardy, not for Kane, still, when he told respondent to wait outside because of the darkness, he removed the only possible ground for a pretense on respondent's part to the status of an invitee. Respondent had no business of his own to transact at Hardy's store and, whatever his relation to McDonald, he no longer had any business of McDonald's at the store. Certain it is, from that time on he merely went as company just as McDonald testified he had done from the start. From the time he entered the building in disregard of McDonald's direction that he stay outside he was technically a trespasser, or at best a mere licensee with no business there either of his own or of another. He had no invitation. Even that of his alleged employer had been withdrawn. after the expiration of the period of limitations, Where a lineman, in January, four months sued as a competent person in his own name for personal injuries, alleging he was insane continuously from the accident until his discharge from of instruction that the jury could not find that an insane asylum the preceding August, refusal plaintiff "is now insane or has been insane at any time since he left" the asylum, was error, since from his testimony and that of others, the jury might have considered plaintiff insane at the time of trial, and thus enhanced the dam ages. [Ed. Note.-For other cases, see Damages, Cent. Dig. § 348; Dec. Dig. 216(2).] 3. DAMAGES 216(2) - INSTRUCTIONS - CONTINUANCE OF INSANE STATE-APPLICABILITY. And for this reason, also, an instruction, "if insanity has been established then the presumption is that insanity continues until the contrary is established," was erroneous, since the complaint alleged that plaintiff was insane continuously only until his discharge from the asylum, notwithstanding a further allegation in the complaint that since the injury plaintiff's physical and mental vigor had been destroyed, and he had been unable to do any work, and that he would continue so to suffer during the remainder of his for, under the above instruction, they would perlife; these latter allegations being inconsistent, mit plaintiff to bring his action as a sane man and recover damages on the ground he was insane. [Ed. Note.-For other cases, see Damages, Cent. Dig. § 348; Dec. Dig. 216(2).] 4. EVIDENCE ~332(1) — INSANITY COMMITMENT PAPERS. [6, 7] It follows that the appellants owed him no duty except not wantonly or willfully to injure him. He took the way as he found it subject to its attending perils. When he advanced in the darkness, without a light and without any caution, as his own testimony shows he did, and blindly plunged at right angles from the straight passage, he was guilty of negligence which on all auIn such action, where plaintiff sought, by thority must be held as a matter of law the claiming insanity, to avoid not only the bar of proximate cause of the injury. McConkey v. the statute of limitations, but also his release of Oregon R. & N. Co., 35 Wash. 55, 76 Pac. his employer from liability, commitment papers, 526; De Graffenried v. Wallace, 2 Ind. Terr. conforming to Rem. & Bal. Code, § 5953, as to examination of a person charged with insanity, 657, 53 S. W. 452; Brugher v. Buchtenkirch, in the proceeding whereby he was sent to an in 167 N. Y. 153, 60 N. E. 420; Bentley & Ger- sane asylum, including the physicians' certificate wig v. Loverock, 102 Ill. App. 166; Bridger and the answers to questions contained therein under their examination, were admissible to v. Gresham, 111 Ga. 814, 35 S. E. 677; Mas- show the existence of insanity from the time of sey v. Seller, 45 Or. 267, 77 Pac. 397; Black-his commitment until his discharge, and as tendstone v. Chelmsford Foundry Co., 170 Mass. ing to show upon what the physicians based their 321, 49 N. E. 635; Piper v. N. Y. C.'& H. R. certificate, notwithstanding the proceeding was ex parte. R. Co., 156 N. Y. 224, 50 N. E. 851, 41 L. R. A. 724, 66 Am. St. Rep. 560. The judgment is reversed, and the cause is remanded for dismissal. MORRIS, C. J., and MOUNT, CHADWICK, and FULLERTON, JJ., concur. [Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 1237, 1240; Dec. Dig. 332(1).] 5. EVIDENCE 63-PRESUMPTIONS-SANITY. One is presumed sane up to the time he is shown to have become insane. [Ed. Note. For other cases, see Evidence, Cent. Dig. § 83; Dec. Dig. 63.] For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 6. LIMITATION OF ACTIONS 200(1) LEASE ITY. RE-reversal as necessarily given under the influence 59-INSTRUCTIONS-PROOF OF SAN- of passion and prejudice. In an action by employé for injuries where, to avoid the bar both of the statute of limitations and of his written release, he alleged insanity caused by the accident from that time until shortly before bringing suit, an instruction as to his burden of proving insanity, stating that when insanity of a fixed and settled nature is once established by the evidence, it is presumed to continue until it is overturned by proof of sanity, held proper. [Ed. Note.-For other cases, see Limitation of Actions, Cent. Dig. § 731; Dec. Dig. 200(1); Release, Cent. Dig. § 115; Dec. Dig. 59.] [Ed. Note.-For other cases, see Damages, Cent. Dig. §§ 361, 362, 370; Dec. Dig. 131(3).] Morris, C. J., and Fullerton, Mount, and Main, JJ., dissenting. Department 2. Appeal from Superior Court, Spokane County; E. H. Sullivan, Judge. Action by Ernest Napoleon Roberts against the Pacific Telephone & Telegraph Company. From judgment for plaintiff and denial of defendant's motion for new trial, defendant appeals. Reversed and remanded. See, also, 160 Pac. 753. Post, Avery & Higgins, of Spokane, for appellant. Robertson & Miller and E. W. Robertson, all of Spokane, for respondent. HOLCOMB, J. Respondent was a lineman working for appellant near Pomeroy, Wash., in reconstruction of a telephone line. A pole which he had climbed broke, and respondent fell with the pole, the cross-arm at the top pinning his head to the ground and knock Rational conduct and acts and business transactions at a given time may be shown to establish lucidity at such time, the only test being that at such times the actor was able to knowing him unconscious for a short time. Some and comprehend the nature and effect of his acts, and therefore able to transact with understanding ordinary business, and a "lucid interval" meaning not merely a cessation of violent symptoms of mental disorder, but such a temporary restoration of reason as to create responsibility for acts done during its continuance, for restoration of the mental faculties to their ordinary condition is not necessary, but it is sufficient that the restoration be such that the person is able, beyond doubt, to comprehend and do the act with such reason, memory, and judgment as to make it a legal act. [Ed. Note. For other cases, see Insane Persons, Cent. Dig. §§ 4-10; Dec. Dig. 2. For other definitions, see Words and Phrases, First and Second Series, Lucid Interval.] 9. RELEASE 15 - MENTAL UNDERSTANDING. Whether the injured man's lack of capacity at the time of making a release was so great as to render him incapable of understanding the effect thereof or his mental incapacity did not go to that extent, notice of his mental condition when the release is procured is imputed to the party securing such release, and to avoid the release the injured person need not establish by clear and convincing evidence that the party securing it had at the time of the release knowledge or notice of his mental incapacity. [Ed. Note.-For other cases, see Release, Cent. Dig. § 30; Dec. Dig. 15.] of the bones in his left hand were broken, his ankles were hurt, there was a cut over his eye, the back of his head was bruised and swollen, and his eye was bloodshot. The accident happened September 15, 1910. Suit was brought January 12, 1914, or approximately four months after the expiration of the period of the statute of limitations. Various grounds of negligence are alleged in the complaint, but the ground relied upon by respondent was that, at the direction of the foreman of construction, another lineman cut the wires upon a nearby pole, and that such wire cutting caused the pole upon which respondent stood to break and fall. The complaint alleges that the plaintiff became and was insane continuously from the time of the injury until in September, 1913, and that he had been an inmate of the asylum for insane at Steilacoom for about four months. It is not contended in the complaint that the respondent was insane at the time of the commencement of the action, and there was no guardian ad litem appointed to sue for him. Appellant in its answer admits that the respondent was in the employ of appellant, denies all allegations of negligence, and af 10. DAMAGES 131(3)-PERSONAL INJURIES-firmatively alleges the following: (1) That EXCESSIVE DAMAGES. on December 12, 1910, or three months after Where a lineman 28 or 29 years of age was able to work at his usual wages less than two the accident, plaintiff settled, satisfied, and months after his injury, his injuries consisting released all claims and demands arising out of breaking of some of the small bones of the of the accident for the sum of $135 then left hand, a large gash over his left eye, without any evidence of a broken bone, some in- paid to him; (2) that the action was comjuries to his ankles and knees of a temporary menced more than three years after the cause nature, an injury in the back of his head and of action accrued, and is barred by the statsome impairment of sight in one eye, largely ute of limitations; (3) that there was conremedial by the use of proper glasses, and a possible slight temporary mental derangement tributory negligence and fault on the part of had been cured, a verdict of $24,000 against his the respondent; (4) that the respondent asemployer was grossly excessive and ground for sumed the risk; (5) that the injury was that he was incapable of transacting ordinary business, and that this condition of mind continued for a period of four months or until the 14th day of January, 1911. caused by the negligence of a fellow servant. | the day when the alleged injuries were susRespondent in reply alleges in respect to the tained, plaintiff became and was insane, and release that, at the time of executing it, he was incapable of transacting business or knowing the effect of such an instrument because of his weakened mental condition, and that the instrument was obtained from him fraudulently and without consideration; and further alleges that he was insane continuously from the time of the accident until September, 1913. Twenty-eight errors are assigned by appellant, and the printed abstract of the record comprises 752 pages. The errors assigned, however, involve principally, and this opinion will deal only with, the questions of the running of the statute of limitations, of the validity of the release, of the refusing and giving of instructions to the jury, and of the excessiveness of the verdict. There was a verdict for respondent for the sum of $24000. Appellant unsuccessfully moved for a directed verdict in its favor, for judgment notwithstanding the verdict, and for a new trial. The only testimony in behalf of respondent describing the condition of respondent immediately after the injury on September 15, 1910, was that of his brother James Roberts, who was also a lineman working at the same place and time, who testified that, when respondent was placed in an automobile to be taken to Pomeroy for medical attention, respondent seemed to think he was having a joy ride. On the following night the witness went to Pomeroy, and respondent looked distant, and did not want to recognize him. Respondent did not sleep, and would not let the witness sleep. Respondent stated that people were going to hang him. Woke witness and told him that somebody had gotten him out in the street and wanted to whip him, and wanted witness to go out in the street with him. Witness did so and found no one. Respondent kept continually awaking witness. When respondent was brought out to the camp again he made threats to attack the witness, constantly quarreling with him, although he had never been quar As the action was not brought until January 12, 1914, the injury having occurred September 15, 1910, and approximately four months more than the period of the statute of limitations of such actions had run, and as the release is claimed to have been ex-relsome before; that respondent's mind seemecuted on December 12, 1910, within three months after the accident, it is unnecessary to discuss separately the questions of the validity of the release and the tolling of the statute of limitations. They are co-ordinate and correlated. If respondent was insane for a period of time sufficient to toll the statute of limitations to within three years of the commencement of the suit, then the period of his insanity would cover the time of the execution of the release so that the same would not be binding upon respondent. And, conversely, if he was lucid and mentally competent at any time to transact ordinary business, the statutory period must start running from that time. The court submitted to the jury three special interrogatories, the first of which was as to whether plaintiff executed the contract of settlement and release in question, to which the jury answered, "Yes." The second interrogatory was: "If you answer the first question 'Yes,' did the plaintiff at the time of signing the same possess sufficient understanding to know the nature and effect of said release?" to which the jury answered, "No." The third interrogatory was, "Was there any time after September 15, 1910, and before January 12, 1911, when the plaintiff was mentally capable of transacting any ordinary business?" to which the jury answered, “No.” ed blank; he was just crazy; he didn't know what he was doing. Respondent himself testified that the first thing he remembered after the pole fell was his being in the asylum in Steilacoom in 1913. He did not recollect any event or occurrence between the date of the accident and his partial recovery at the asylum. He testified that he heard noises in his head and heard voices; that he sometimes heard a bell at a distance and saw objects; that he heard people coming in the house when no one was there; that he remembered only the last week in the asylum, although he testified to hearing people laugh at him while there. These were interested witnesses. Appellant introduced apparently dis pened to come along in their automobile interested witnesses, two farmers who hapshortly after the accident and conveyed the respondent to Pomeroy, to the doctor's office and conversed with him about the accident and other matters, who considered him rational and sane. Other witnesses, who were employed by appellant at the time, observed his manner and appearance while at Pomeroy, and immediately after returning to camp after being in Pomeroy under the doctor's care for a few days and saw nothing wrong with his mental condition. There was testimony in his behalf by his relatives and neighbors describing his acts, manner, and conduct afterwards. Experts for respondent testified upon the hypothesis of the truth of [1] The trial court correctly instructed the facts related by other witnesses that he was jury, in instruction 5, that the burden of insane. Experts for appellant testified that, proof would be upon the plaintiff to show from examination and observation of re by clear and convincing evidence that, upon | spondent, he was not insane, but was feigning |