Page images

more v. Olympia, 34 Wash, 379, 75 Pac. 978, and cases there cited.

The judgment is affirmed.

HADLEY, C. J., and MOUNT and CROW, JJ., concur.

tified, acconipanied the prosecutrix and the appellant to the lodging house where the (rime charged against the appellant was committed. The witness denied the statement of the prosecutrix, and professed only a slight acquaintance with her. On crossexamination she was asked, and over the objection of the appellant was compelled to answer, whether or not she had written a letter to the prosecutris asking her to meet the witness and Katon at the Aberdeen Cemetery, and whether or not she had attempted to persuade the prosecutrix to leave Aberdeen with her. The first question she answered in the affirmative, and the second negatively. The ruling of the court is assigned as error on the authority of the case of State v. Belknap (Wash.) 87 Pac. 934. But that case is not authority for the contention here made. The questions put to the witness in the case at bar were pertinent to the inquiry. They tended to show the intimacy of the witness with the prosecutrix, that the witness had sought to bring the prosecutrix and the appellant together, and tended in some degree to corroborate the prosecutrix's evidence. In the case cited the questions held objectionable were wholly foreign to any issue in the case, and tended only to the degradation of the witnesses, without in any way aiding the jury. But cross-examination, to be permissible, need not always bear directly on the question at issue. The witness may be examined on matters foreign to the issue, when it reasonably tends to affect his or her credibility. For example, in State v. Coella, 3 Wash, 99, 28 Pac. 28, it was held error to refuse to permit a woman witness to be asked whether she was not a prostitute. The question what is and what is not an abuse of the privilege admits of no general answer. Each case must largely depend upon the circumstances which surround it, relegating the question in a large measure to the discretion of the trial court, to be reviewed only for an abuse of that discretion. In this instance, we have no hesitancy in saying the discretion was not abused.

The cross-examination of witnesses Millete and Iloilingsworth was also proper. The questions complained of tended to discredit their positive statement made while testifying in chief, and as such were admissible even under the most strict application of the rule contended for by the appellant.

The part of the charge of the court complained of is not properly before us for review. The exception was a general exception to an entire paragraph containing seyeral distinct propositions, each of which, with possibly one exception, was free from error. Such an exception, we have repeatedly held, is insufficient to bring the objectionable portion of the charge into this court for review, since it does not call the attention of the trial court to the particular part of the charge that is deemed erroneous. Gala

ROOT, J. I dissent. I do not think the law justifies sending a man to the penitentiary upon the testimony of a woman, who, upon oath, confesses to being unchaste and a perjurer concerning the very subject-matter in question. Aside from that of the prosecuting witness, there is no evidence of defendant's guilt. At the trial she testified that he was the father of her child. On the very day before, on the trial of another man for that identical offense, she testified that this defendant had never had sexual intercourse with her and was not the father of her child. A few weeks before, she had sworn that one W. was the father of her child. She also admitted upon the trial of defendant that she had told a lady friend with whom she was living that defendant was innocent. She admitted that she had been sexually intimate with at least one other man. She mentioned three persons besides the defendant as being present and knowing of her going to a room in a lloquiam lodging house with defendant, where she says the offense occurred. Every one of these three, as well as the defendant himself, positively disputes her. She also admitted that, at the preliminary examination, she had sworn that she and another girl and defendant and another man had all four occupied the same room. Upon this trial she swore that this was not true, but that she and defendant were alone in a room all night sleeping together. Nobody corroborated her except as to one circumstance. Her sister and her sister's husband testitied to seeing her and defendant walking along the street in Aberdeen toward IIoquiam. This brother-inlaw, who socorroborated her, was one of the men whom she upon a former occasion had sworn to be the father of her child.

He was tried and acquitted of the offense. Ile said he had never seen this defendant before that night; that he was about a block away; that it was "rather dark," being about 9:30 in the evening; that he thought it was about the 1st of April, but did not know how he fixed the time. His wife fixed the time as 6. p. m. It was about three miles from lloquiam. She had never seen defendant before. This evidence is far from convincing, and, even if true, would have little bearing upon the question of defendant's guilt. Seeing two girls and two men in a town on il street that, if followed, would lead to another town three or four miles distant, is not very positive evidence that one oť the men committed rape on one of the girls in the other town that night. The baby was shown to the jury. It had blue eyes. The eyes of

defendant are brown, and those of the mother, of this observation becomes especially pertiblack. The prosecuting witness also admit nent if a conviction is to be sustained upon ted saying, a few hours before the trial, that, such testimony of a confessed perjurer as if she did not swear against defendant, her we find here. Few things militate against father would kick her out of the house. In a good law more than an unjust, unreasonexplanation of her former testimony (that able, and offensive enforcement thereof in a defendant was innocent), she said she had manner whereby its spirit and purpose are promised to shield him. She gave no reason sacrificed to its letter or form. Such a proas to why she should shield him, instead of ceeding tends to discredit the statute and to her brother-in-law. She admitted that de defeat its usefulness and legitimate objects. fendant had offered her no inducement. Said I think the law and justice demand a reshe met him by chance on the street after versal of the judgment in this case. her baby was born, and after a former charge against him had been dismissed, and promised (at a time when no charge was pending)

(46 Wash, 692) to shield him.

FORSTER et al. 7. RAZNIK et al. (HOLIt is urged that, the jury having found the

LAND BANK, Intervener). defendant guilty, and the trial court having

(Supreme Court of Washington. Aug. 2, 1907.) refused a new trial, this court should not re 1. MUNICIPAL CORPORATIONS-STREETS — OBview the question. I do not think we can


A strip of land, alleged to have been dediescape responsibility so easily. Subdivision

cated as an alley, was never used as such at 6 of section 6965, Ballinger's Ann. Codes & any time, and defendants and their predecessors St., gives as a ground for granting a new in interest for more than 20 years were in actrial the following: “When the verdict is

tual, open, and notorious possession of the same

under color of title and claim of ownership. contrary to law and evidence.” This means

During this time it was assessed annually for that somebody must pass upon the question taxes, with possibly one or two exceptions, and of whether the jury has returned a verdict such taxes were paid, as were also special as“contrary to law and evidence.” This duty

sessments levied against it, and a permanent

building was erected thereon, all of which was devolves first upon the trial judge. If he de without objection from plaintiffs or their prednies the motion, his ruling can be assigned as ecessors in interest who were adjoining landerror upon appeal. That assignment of error

owners. The city council at one time adopted a

resolution reciting that, whereas there was some must then be examined by this court. It be

controversy concerning the matter, they thereby comes our duty to say whether the ruling disclaimed all right to the same as a public was error or not. To do so, we must exam- alley, and, though subsequently assuming a difine and pass upon the evidence. The statute

ferent attitude, it did not open or use the strip

as an alley. Held that, though mere adverse leaves us no other course. To be sure this

possession was insufficient to acquire title to a court should be slow to reverse the action of public alley, yet plaintiffs were estopped to a trial court in denying a new trial because

question defendants' right to occupy the strip of alleged insufficiency of evidence, and es

of land and to maintain an action to enjoin

them from obstructing the same. pecially where the trial judge is of the abil.

2. INJUNCTION-PARTIES — HIGHWAYS OBity and character of him who presided at STRUCTION. this trial. But where this court is clearly A mortgagee of a strip of land alleged to convinced that the verdict is, in the language

have been dedicated as an alley is a proper par

ty, though possibly not a necessary one, to an of the statute, contrary to law and evi. action to enjoin the obstruction of the same. dence," it is the duty of the court to set aside the verdict, thereby correcting the er

Appeal from Superior Court, Spokane ror of the trial court in not so doing. Above

County; Henry L. Kennan, Judge. and beyond all technical considerations is

Action by Minnie C. Forster and another the paramount and inflexible demand of our

against Hannah Raznik and others, in which jurisprudence that every defendant shall be

the Holland Bank intervened. From a judgentitled to a fair trial and be convicted of

ment for defendants, plaintiffs appeal. Afcrime only upon evidence showing his guilt

firmed. beyond a reasonable doubt. How any court Merritt, Oswald & Merritt, for appellants. can say that this evidence show's this defend Post, Avery & Higgins, for respondent Holant to be guilty beyond any reasonable doubt, land Bank. Robertson & Rosenhaupt, for or hold that any jury might properly have respondents Hannah Raznik and others. so found, is more than I can understand.

The statute making it a felony for a man ROOT, J. This is an action to enjoin re to have illicit sexual intercourse with a girl spondents, except the Holland Bank, interunder 18 is a good law. It was intended vener, from obstructing a strip of land to protect innocent, inexperienced, imprudent claimed by appellants to be an alley, in the girls. It was not enacted for the benefit of city of Spokane. The Holland Bank, claim"streetwalkers," nor as an encouragement to ing to have a mortgage covering said parblackmailers. Every conviction like the one cel of land, was permitted to intervene. The before us is calculated to bring this law into trial court found that this portion of land disrepute. A noted judge once said that had been, in effect, originally dedicated as rape was a hard charge to prove, and a much an alley, but that the appellants were esharder one to disprove. The latter portion topped from maintaining this action. Where

The ap

upon a judgment of dismissal was entered, ferred to, the west wall thereof was connectfrom which this appeal is prosecuted. ed with the east wall of a building owned

The parcel of land involved is 1412 feet by these appellants or their predecessor in wide, and lies between, or marks the bound- | interest, by consent. ary of, two additions to said city, and if We think the judgment of the trial court treated as an alley it would connect River was correct. As said by appellants, this side and Sprague avenues. It was the con court has decided that mere adverse possestention of respondents that this parcel of sion is not sufficient to acquire title to an alland was never intended as an alley or pub- ley or public street. But in one of the cases lic way by those who platted the additions referred to, that of West Seattle y. West mentioned. They further contend that, even Seattle, etc., Co., the court said: “We hold, if it be held to have been dedicated as an al on both principle and authority, that a muley when the plats were filed, nevertheless nicipality is not barred of its right to remove these appellants and their predecessors in an obstruction from a public street by mere interest have been guilty of such laches as lapse of time. Some other element of estopto estop them from maintaining this action. pel must enter into the case. Mere lapse of The appellants, as owners of a lot abutting time and the payment of personal taxes on upon said parcel of ground, claim an ease the improvements are here relied on. These ment therein and thereover as a public al are insufficient.” It would seem that this ley, and urge that the defense of respondents | language clearly implies that a case might is in effect a claim of title by adverse pos arise where an element of estoppel would session, which cannot be asserted in and

prevent the occupant of an alley or street to a public street or alley, and rely especial

from being disturbed, and such is undoubtedly in support of their contention upon West

ly the law. In Northern Pacific Ry. Co. v. Seattle v. West Seattle, etc., Co., 38 Wash.

Ely, 25 Wash. 384, 65 Pac. 555, 54 L. R. A. 359, 80 Pac. 519, and Rapp v. Stratton, 41

526, 87 Am. St. Rep. 766, it was said: “If Wash. 203, 83 Pac. 182. It appears that this

the doctrine of estoppel can ever be invoked, strip of land was by the makers of the plat

it seems to us that it should be invoked in of one of these additions, some years after

this case against the appellant.

In any the filing of said plat, conveyed, or attempt

event, the question of protecting the rights ed to be conveyed, to Frank H. Graves, by

of the government is not one which can be warranty deed, in October, 1885, and after

raised by the appellant. * * * various mesne conveyances a deed thereof

pellant should not be allowed to escape the was made, by one of his successors in inter

consequences of its own wrongful acts, and est, to the respondents Raznik. The ground

reap a fraudulent benefit, by pleading the appears never to have been used at any

rights of the government. Indeed, our govtime as an alley. In 1887 the city council of

ernment is presumably founded upon equitaSpokane adopted a resolution reciting that,

ble principles, not in theory alone, but in whereas there was some controversy concerning the matter, they were of the opin

practice, and the citizen has a right to ex

pect equitable treatment, even at the hands ion that the city had no vested right in

of the government; and it has been held that said ground, and thereby disclaimed all rights to the same as a public alley or high

in good conscience the government is freway. Subsequently the city appears to have

quently estopped from asserting rights which assumed a different attitude, although it did

would destroy the equitable rights of the not open or use the strip as an alley. It has

citizen.” The court cited State ex rel. Atbeen assessed annually, with possibly one

torney General r. Janesville Water Power or two exceptions, since 1885, by or for the

Co., 92 Wis. 496, 66 N. W. 512, 32 L. R. A. city, and the taxes were always paid. Spe

391, and Commonwealth ex rel. Attorney cial assessments were also levied against it

General v. Bala & B. M. Turnpike Co., 153 by the city for the improvement of River

Pa. 47, 25 Atl. 110.5, in the latter of which side avenue, Bernard street, and Sprague

cases it was said, in substance, that the avenue; some of these having the effect of question involved was not one under the lessening the amount assessed upon appel

statute of limitations, but of laches, which lants' property abutting thereupon. A build

might be imputed to the state as well as to ing was erected thereon in 1887, and a an individual—that while time did not run permanent building in 1897. The defendants

as against the state, yet the lapse of time, Raznik and their predecessors appear to have

together with other elements, might work been for more than 20 years last past in the an estoppel, even as against the sovereign. actual, open, and notorious possession un In the case of Spokane Street Railway Co. T. der color of title and claim of ownership.

Spokane Falls, 6 Wash. 521, 33 Pac. 1072. Neither appellants nor their ancestors are a case where a street railway, not having shown to have objected to this possession, authority under its franchise so to do, had or to have made any protest against the im taken possession of, used, and made valug provement or occupation of said strip of land ble improvements in certain streets, and ocby said defendants and their grantors. cupied the same in the operation of its road There was evidence that, when these defend for over two years, this court said: "A muants constructed the permanent building re nicipal corporation should not be permitted

to stand by and see large amounts of mon. The judgment of the superior court is afey invested in enterprises of this sort by firmed. persons who act under the mistaken view that they have legal authority. In this case FULLERTOY, CROW, and MOUNT, JJ.,

, , the appellant had authority by ordinance to

concur. lay down a street railroad upon a number of streets. It mistook its rights and placed a part of its track in a place not designated

( 47 Wash. 8) in the ordinance. Technically, it had no

O'CONNELL V. JARVIX et al. right to put its track where it did, but

* the municipal officers * * * knew (Supreme Court of Washington. Aug. 5, 1907.) that the track was being laid on Division PRINCIPAL AND AGENT ACEXCY DISTINstreet, and no objection was made.

GUISHED FROM OTHER RELATIONS. The general rule would, of course, be that

Plaintiff purchased real property from an

other for his accommodation, giving him the franchises of this kind could not be acquir

privilege of reselling it at a net price to plained except by the action of the corporation, tiff. Plaintiff's vendor listed the property with which must be titken by ordinance, but the

defendants, real estate agents, who found a statute in question does not prohibit the

prospective purchaser and received as earn 'st

money two drafts payable to themselves. Plaincourts from declaring an estoppel against tiff, though willing to sell on the terms proposthe city in other matters in the same manner ed, declined to execute a contract of sale unless that they would as against private persons.

a larger sum than was tendered him was paid In the case of State ex rel. Grinsfelder v.

as earnest money, whereupon the larger draft

was indorsed to him by defendants; the sum Street Railway Co., 19 Wash. 518, 53 Pac. tendered having equaled the amount of the oth719, 41 L. R. A. 515, 67 Am. St. Rep. 739, er. Held, that defenılants were not agents of where a street railroad company had occu

plaintiff, and hence their act in indorsing the

draft was not plaintiff's act, and, the same have pied certain streets in which it had operated

ing been dishonored, they were liable on their its railway line for several years without a indorsement. grant, privilege, or franchise from the city or county, it was stated that the city could

Appeal from Superior Court, King County; not object to the further occupation of said

Boyd J. Tollman, Judge. streets by said company.

Action by William L. O'Connell against It is urged by the appellants that the oc Charles E. Marvin and others, doing busicupation of this strip of land was an ob

ness as Charles E. Marvin & Sons Company. struction in a public alley, and consequently

From a judgment for plaintiff, defendants a nuisance and a constantly recurring nui

appeal. Affirmed. sance, by reason of which respondents could

M'Bride, Stratton & Dalton, for appellants. gain no property rights whatever. If there

Samuel Morrison, for respondent. had been no question as to the dedication of the strip of land, and it had been conceded at all times that the same was a public al

PER CURIAM. This is an action upon a ley, there would be more force in this argu bank draft. The draft in question was taken ment; but it appears that these defendants by the appellants in part payment of the and their grantors had for many years re

purchase price of certain real property owngarded and treated it as if it were not an ed by the respondent, and which the appelalley, and as if it had never been dedicated; lants, who are real estate agents, held for and the action of the city council, whether sale. It appears from the record that in valid or otherwise, in disclaiming any rights 1904 the property was owned by one Cumto the land as an alley, would tend to con mings. Cummings at that time was in need firm them in the belief that it was their of money, and the respondent purchased the property, and not that of the public; and the property of him at an agreed price for his silence of appellants and their predecessors accommodation, and at the same time gave in interest, while this parcel of land was C'ummings the privilege of reselling it at a being built upon, occupied, and used for so net price to the respondent of a fixed sum, many years, would seem to be a strong in agreeing to give him all that he could obdication that they had acquiesced in the be tain for the property over and above the lief that the strip was not a public alley. It sum so fixed. Cummings listed the property would probably serve no good purpose to with the appellants. In October, 1905, the analyze the evidence in detail. We think, appellants found a prospective purchaser in from a consideration of all of the evidence one A. J. Palmour, and received as earnest and admitted facts in the case, that the ap of the prospective sale his draft on Molson's pellants ought not to be heard to question Bank of Port Arthur, Ontario, for $100, and the right of defendants to occupy the strip his draft on A. V. Palmour of the same place of land involved herein.

for $100; the latter draft being the draft As to the right of the Ilolland Bank to in suit. Cummings was notified of the prosintervene, we think it was a proper, although pective sale by the appellants, and he in possibly not a necessary, party. We see no turn approached the respondent and asked error in the action of the trial court in per him to enter into a written contract agree mitting the bank to intervene.

ing to sell the property on payment of the

dollars (100) received this day. Deed to be made as ordered.

"W. L. O'Connell. "Witness: M. J. Cunimings."

purchase price on or before November 1, 1905, tendering him at the same time the appellants' check for $100. The respondent told Cummings that he was willing to sell on the terms proposed, but did not want to tie up the property until November 1st for such a smali sum, and unless a larger sum as earnest rooney could be paid he would not sign the contract. Cummings thereupon told him to call at the appellants' offices the next morning, when he thought the matter could be arranged. The respondent did call as requested, and after some negotiation the appellants agreed to indorse and turn over to him the $100 draft. The contract Was thereupon signed and the draft delivered to the respondent. The respondent presented the draft to his banker, when it was discovered that it had not been indorsed by the appellants. Ile returned with it shortly thereafter to them, received their indorsement, and had it forwarded for collection. The dra wee failed to honor the draft, and it was returned to the respondent, who thereupon called upon the appellants to make good their inilorsement, and on their refusing to do so instituted this action.

The contract of sale above mentioned was as follows:

"Seattle, Wash., Oct. 3, '03. "Received from Chas. E. Marvin & Sons Co., for account of a client, four hundred dollars, as surety deposit payment made by them on purchase made by their client of seventeen (17) acres of land near the mouth of the Duwamish river and known as the 'E. M. Tattersor: tract and particularly described as follows: Beginning at a point on the west line thereof, distant 21.38 rods south of the north line thereof; thence east 123.46 rods, more or less, to a point distant 24.54 rods from the east line of said southwest quarter; thence south 14° 22' east, 17.60 rods; thence south 39° east, 5.39 rods, to a point distant 16.70 rods west from the east line of said southwest quarter; thence west 133.25 rods, more or less, to the west line of said southwest quarter; thence north, along said west line, 21.37 rods, to the place of beginning. The purchase price of this property is thirty-seven hundred ($3,700) dollars to me, with a condition that any margin which you secure in selling this property above thirty-seven hundred dollars shall be the total brokerage allowed you for selling the property

"Payments: Four hundred ($100) Dft. the receipt of which is hereinabove acknowledged and thirty-three hundred dollars ($3,300) payalle on or before November 1st, 1903; the object of the extension being to enable you to have the time till November 1st, 1903, to fully close up the deal if necessary. If not closed by this time the four hundred ($100) shall be forfeiteil, with the condition, if the title is not satisfactory and complete to your attorney, I will return the four hundred

The appellants contend that they are not liable on their indorsement for the reason that they were the respondent's agents, authorized by him to sell the property, and that when they did sell it and took the draft from the purchaser they took it as the respondent's property, and their indorsement was nothing more than a means of transferring the legal title to the respondent, being necessary because the draft was payable to them; and they cite cases maintaining the rule that an agent who takes negotiable paper in his own name and indorses the same to his principal is not liable thereon, unless it is expressly agreed or intended that he shall assume a personal liability. But we think this rule has no application here. The appellants were in no sense the agents of the respondent. They were not empowered to make contracts for him or in his name, nor did they bear to him any fiduciary relation whatever. On the contrary, they dealt with him at arm's lengtlı, and owed him only that duty that every man owes to another with whom he contracts, namely, to deal honestly and not overreach his co-contractor by fraud or deceit. The appellants' act, therefore, in indorsing the check, was not the act of the respondent Did they indorse it, then, for the purpose of obligating themselves upon it? We think there can be no dispute upon this question. The indorsement was without limitation of any kind, and the draft was delivered as a payment to the respondent under a contract entered into between him and the appellants, to be returned by him only on condition that the title he had to the land, when called upon to make a deed, was not satisfactory to the appellant's attorney. There was no forfeiture under this condition. The draft, therefore, became the absolute property of the respondent, and he had the right to enforce it against the indorsers, as well as against the drawer,

The judgment is affirmed.



Where the owner of premises abutting on a street placed trap-doors in the sidewalk, and owing to the unsafe condition of the doors a pedestrian sustained injuries for which he recovered from the city, it was entitled to recover over against the owner of the premises.

[Ed. Wote.-For cases in point, see Cent. Dig. vol. 27, Indemnity. $$ 30, 31.]

Appeal from Superior Court, King County; Geo. E. Morris, Judge

« PreviousContinue »