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Action by the city of Seattle against the Puget Sound Improvement Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Bausman & Kelleher, Peters & Powell, and R. P. Oldham, for appellant. Scott Calhoun and Elmer E. Todd, for respondent.

MOUNT, J. This action was brought by the respondent to recover over from the appellant the amount of a judgment for personal injuries recovered by C. S. Smith against the city, and paid by the city. The case was tried to the court without a jury, and a judgment was rendered against the appellant. The appellant alleges that the court erred in overruling a demurrer to the complaint and in making certain findings of fact.

The material allegations of the complaint are as follows: “That Second avenue is now and was at all times herein mentioned a public street in said city of Seattle, being one of the principal streets in said city and a common thoroughfare, and as such much used by the public; that at all times herein mentioned said defendant was the owner of lots 1 and 4, in block 6, of the plat of the town (now city) of Seattle, as laid off by C. D. Boren and A. A. Denny, in the county of King, state of Washington; that at all times herein mentioned there was situated on said lot a four-story brick building, known as the 'Boston Block,' and under the sidewalk on Second avenue in front of said lots, particularly in front of that store building in said block known as Xo. 722 Second Ave. nue,' in said city, said defendant maintained an area way, and at or near said store building in said sidewalk maintained a trapdoor down into said area way and cellar, beneath said sidewalk; that on the night of the 19th of October, 1901, and for many months prior thereto, the defendant had negligently and carelessly maintained said trap-door in said sidewalk as aforesaid ; that said trapdoor, which was made of iron, was unlawfully and dangerously raised above the surface of the adjoining sidewalk for a height of from two to three inches; that said opening in the sidewalk was covered as aforesaid by iron trap-doors, which met over the middle of said opening; that at said point of meeting one of said iron doors projects above the other, and said iron doors had become on the surface worn smooth, and at all times were slippery and dangerous to life, and to trarelers using the same in walking over said sidewalk in the ordinary and usual manner; that said defendant carelessly and negligently failed to place any danger signals as a warning around or about said defective place in said street and sidewalk and said obstruction thereon contained ; that on the night of said 19th of October, 1901, one Christina D. Smith, while lawfully traveling along said Second avenue, at or near No. 722 Second

avenue, stumbled on said iron doors, and, the same then and there being slippery, stumbled, slipped, and fell, and was thereby thrown on said iron doors on said sidewalk and ground, and therefrom she sustained great and severe injuries." Then follow allegations of the extent of the injuries to Mrs. Smith; that she duly presented her claim to the city for damages; "that thereafter, to wit, on or about the 11th day of February, 1902, said Christina D. Smith and Lee Smith, her husband, instituted an action in the superior court of King county, Wash., to recover damages against the city of Seattle on account of said injuries so received as aforesaid, which cause is numbered 34,982 in the files of said court; that said city of Seattle duly defended against said action, and issues were joined therein, and a trial was had upon said issues in said court on January 29, 1903, resulting in a verdict in favor of said Christina D. Smith and her husband in the sum of $7,633; that said city of Seattle duly filed its motion for a new trial, which said motion was denied by the court, and judgment entered upon said verdict in the sum of $7,633 and costs against said city; that from said judgment the city of Seattle duly appealed to the Supreme Court of the state of Washington, and there after the Supreme Court of the state of Washington affirmed said judgment of the superior court, with costs; that thereafter, on the 23d day of December, 1903, the remittitur from the Supreme Court affirming said judgment was filed in the office of the clerk of said superior court, and final judyment was entered against said city of Seattle for $7,633 and costs, amounting to $180.15; that on said 23d day of December, 1903, the city of Seattle was forced to and did pay said judgment, with interest and costs amounting in the aggregate to $8,151.91; that in addition thereto said city of Seattle was forced to and did expend as necessary expense in defending said suit and in prosecuting said appeal the sum of $300." Then follows an allegation of notice to the appellant to defend the suit.

Upon the sufficiency of this complaint the appellant argues that the complaint shows that the appellant and the city were joint tort-feasors, and, since there can be no indemnity by one joint tort-feasor against another, there can be no recovery in this case, But, as we read the allegations of the complaint, we find nothing in it to justify the conclusion that the city and the appellant were joint tort-feasors. The allegations are that the defendant maintained an area way beneath the sidewalk and trap-doors in the sidewalk; that the trap-doors were careiessly and negligently maintained by defendant, and were unlawfully and dangerously raised above the surface of the sidewalk two or three inches; that said doors were worn smooth and slippery, and were danger

ous; and that defendant failed to protect , paid, and that, if properly notified of the acagainst such dangers. These allegations are tion, such person or persons are bound and that the negligence was of the defendant, concluded by the judgment recovered against not of the city. It is true that it is the duty the corporation, as to all questions adjudicat. of the city to keep its streets reasonably ed in such action.” In Milford v. Holbrook, safe, and if the trap-doors had been placed 9 Allen (Mass.) 17, 85 Am. Dec. 735, where in the sidewalk by the city, for the benefit

the town of Milford was compelled to pay of the city, it would alone be liable. But,

a judgment on account of injuries received where the trap-doors were placed in the side by one Day through the falling of an awnwalk by the defendant for its sole use and

ing, the court, in sustaining a judgment over benefit, it was the duty of the defendant

in favor of the town against the person to properly and safely place and maintain | maintaining the awning, said: “The plainthem. The defendant's negligence in regard tiffs were not in pari delicto with the defendthereto would be construed as the city's neg


ant, and therefore the principle that one ligence with reference to third persons who joint wrongdoer cannot have contribution might be injured thereon, because of the duty against another has no pertinency. The only of the city to keep the streets reasonably

fault or negligence which could be imputed safe. But, while the city would be liable to the town, on the facts shown, was a failto third persons on account of an injury

ure to remedy the nuisance which the deoccasioned thereby, it would not be a joint

fendant has caused. This is no bar to their tort-feasor with the defendant, because the

claim for indemnity." In Canandaigua v. acts of negligence are the wrongful acts of ! Foster, 156 N. Y. 354, 50 N. E. 971, 41 L. R. the defendant alone. The great weight of au

A. 554, 66 Am. St. Rep. 575, a judgment over thority seems to hold that there can be a in favor of the town was sustained. The recovery over by a municipality where a street : Court of Appeals of New York said: “But is rendered unsafe by the wrongful use of

whoever, even by due permission, cuts a

hole in the sidewalk for the benefit of his another, and where damages are recovered against the municipality therefor. The rule

adjoining property, must use reasonable care is stated as follows in 2 Dillon on Munici

to protect the public from danger on acpal Corporations (4th Ed.) § 1035; "If a

count thereof. Reasonable care requires that

he should provide a proper covering, inspect municipal corporation be held liable for dam

it from time to time, and repair it when ages sustained in consequence of the unsafe condition of the sidewalks or streets, it has

necessary, as otherwise passers-by, for whose a remedy over against the person by whose i benefit the sidewalk is maintained, may be wrongful act or conduct the sidewalk or : injured.” Measured by these rules the com

plaint was sufficient. street was rendered unsafe, unless the corporation was itself a wrongdoer, as between

Appellant also contends that the court itself and the author of the nuisance.

erred in finding that the appellant mainIn Chicago v. Robbins, 2 Black (U. S.) 418,

tained the trap-doors and area way beneath

the sidewalk, and that appellant had con17 L. Ed. 298, the Supreme Court of the

trol thereof. United States said: "It is well settled that

It is admitted that the ap

pellant owned the building, and that the area a municipal corporation, having the exclu

way and trap-doors were placed in the sidesive care and control of the streets, is ob

walk exclusively for the benefit of the buildliged to see that they are kept safe for the

ing. Under these circumstances it became passage of persons and property, and to

the duty of the appellant to maintain the abate all nuisances that might prove dan

trap-doors reasonably safe for passers-by. gerous; and if this plain duty is neglected,

The evidence conclusively shows that the and any one is injured, it is liable for the

building was at all times under the control damages sustained. The corporation has,

of the appellant. It is true the appellant however, a remedy over against the party

leased offices and storerooms therein to dif. that is in fault, and has so used the streets

ferent tenants; but the control of the buildas to produce the injury, unless it was also

ing and its maintenance, and the actual posa wrongdoer.” See, also, Robbins v. Chicago,

session of a part of the building, were in the 4 Wall. (U. S.) 657, 18 L. Ed. 427; Washing appellant personally at all times. Under ton Gaslight Co. v. District of Columbia, 161

these circumstances appellant would be liU. S. 316, 16 Sup. Ct. 564, and note to this able. As relating to both these points, the case in 40 L. Ed. 712. In McNaughton v.

rule is well stated in Canandaigua r. Foster, Elkhart, 85 Ind. 381, the court said: "It is

supra, as follows: "While the owner cannot well settled that when a town or city has be held liable in this action for failing to been compelled to pay damages on account of pair the entire sidewalk in front of his premexcavations and obstructions in its streets, ises, was he properly held liable for failing to wrongfully made, or lawfully made and neg. keep in repair the grate itself, which was ligently left in a dangerous condition, it has bis own structure? This depends upon the a right of action over against the author or i duty that he assumed when he cut a hole nuthors of the nuisance for the amount so in the sidewalk and covered it with the

91 P.-17



grate. That duty included proper construc- } ever public safety requires. Anything less tion in the first place, and reasonable care on than the alienation of the entire property, the part of the owner to keep the grate in either permanently, as by deed, or temporarrepair thereafter, as long as he continued in ily, as by lease, would leave the public without possession. The duty sprang from the ne adequate protection. A person injured by a cessity of having safe sidewalks, and, as the defective grate should not be sulject to the necessity is continuous, so is the duty: l'pon : bazarıl of ascertaining the precise relation no other ground can the construction of a

existing between the owner and one of his grate in a sidewalk, which is an interference

tenants with reference to the control of the with a public highway, be justified, even grate; but a simple rule, resting upon ownerwhen permission is duly granted. Upon the ship and possession, in whole or in part, of transfer of the entire interest and posses the adjacent structure, is required by sound sion to another, as the duty runs with the public policy." See, also, Chicago v. Robland, it would be cast upon the grantee. So

bins, 2 Black (U. S.) 418, 17 L. Ed. 298; a lessee of the entire premises and posses

Milford v. IIolbrook, supra; Port Jervis v. sion thereof by the tenant would doubtless

First National Bank, 96 N. Y. 550. throw the burden upon the latter. Shear We find no error in the record. The judgman & Redfield on Negligence (5th Ed.) $8

ment is therefore affirmed. 710, 713. The conveyance of an undivided

IIADLEY, C. J., and FULLERTON, CROW, interest, however, would not have that effect, and the demise of a part of the premises

and ROOT, JJ., (oncur. should not. The obligation goes with the land, and cannot be discharged by a par

(151 Cal. 304) tial alienation of the land at least unless

ROBINSON et al. v. BLOOD et al.

v. the alienation, if for a fixed term, car

(L. A. 1.807.) ries with it the exclusive possession of the (Supreme Court of California. July 12, 1907.) premises for that term. Entire possession

1. JUDGMENT-BY DEFAULT-COLLATERAL ATby a tenant from foundation to roof doubt TACK-WANT OF JURISDICTIOX. • less involves the duty of keeping a grate Where, in an action by a judgment creditor in front of the premises in repair, which

of a corporation to subject to his judgment the

amount due from a stockholder on his stock otherwise rests on the owner of the fee.

subscription, it appeared that the complaint in But whoever, even by due permission, cuts which the judgment was rendered sufficiently a hole in the sidewalk for the benefit of stated a cause of action to give jurisdiction of

the subject-matter, that the summons was servhis adjoining property, must use reason

ed on the president of the corporation, and that able care to protect the public from danger default and judgment were duly entered, the on account thereof. Reasonable care requires judgment was not to be held void because of that he should provide a proper covering, in

want of jurisdiction.

2. CORPORATIONS-EMPLOYMENT OF ATTORNEY spect it from time to time, and repair it when

-VALIDITY-PRESUMPTIONS. necessary, as otherwise passers-by, for whose The president of a corporation, under an benefit the sidewalk is maintained, may be authority given at a meeting of the direct

ors, employed an attorney to defend a suit injured. If he parts with the premises, or

brought against the corporation. The resoluparts with the possession thereof for a pe tion authorizing the employment was regularly riod, the burden falls on his successor in entered in the minutes of the corporation, which title or possession. If he transfers either

recited that the meeting was called by the pres

ident. Held, that a presumption that due notitle or possession in part only, he does not tice was given to the directors was raised, renescape the burden. The implied duty as- dering the employment valid, in the absence of sumed when the hole was cut and the grate

evidence to the contrary. placed over it requires reasonable precau

[Ed. Yote.-For cases in point, see Cent. Dig.

rol. 12, Corporations, $ 1300.] tion on the part of the owner to protect the

3. SAME-DE FACTO OFFICERS. public as long as he remains the owner and

A director of a corporation, who has ceased is in possession of any part of the building to be a stockholder, may continue to act as a on the abutting land. He cannot cast the de facto director, and his acts are not void as to

third persons. burden of maintenance on the public, any

[Ed. Yote. For cases in point, see Cent. Dig. more than he could have (ast upon them the

vol. 12, Corporations. $8 1241, 1242.] burden of original construction; for the

4. SAME-TERMIXATION OF CORPORATE EXISTgrate is wholly for the benefit of his prop EXCE. erty. Nor can he relieve himself of the duty Civ. Code, $ 3.78, as amended in 1901, pro

vides that, where a corporation after its orwithout parting with the entire possession

ganization shall lose its property and shall fail of the property benefited; for the safety of for two years to elect officers and transact its the public requires that the owner, as long business, its corporate powers shall cease. A as he is in possession of any part of the corporation was engaged in defending a fore

closure suit on its property, which was the only property, should be compelled to keep his business it had. The last act in the defense was structure in the sidewalk in suitable condi- | had within 30 days after October 12, 1:301. The tion for use as a part of the sidewalk. As

altiomney conducting the defense sued the corpo

ration for its services in August, 1903, and rethe duty is imposed by law for the pub

! Colored judgment in September. The corporalic safety, its extent is measured by what tion did not lose all of its property until June

28. 1903, at which time its right of redemption action to give the court jurisdiction of the under the sale in the foreclosure suit expired. subject-matter. The summons was duly servHeld, that the corporation was in existence at

ed on the president of the corporation, and the commencement of the suit and at the rendition of a judgment against it for the attorney's the default and judgment were duly entered. fees, rendering the judgment valid.

No irregularity appears on the face of the 5. SAJE - STOCKIIOLDER'S LIABILITY – Ex record. FORCEMENT.

On the question of fraud in procuring tbe The right of a judgment creditor of a corporation to pursue the stockholders thereof to

judgment, the findings are against the decompel payment of the judgment is not defeated fendant, and they are sufficiently supported by the subsequent termination of the corpora by the evidence. The corporation was sued tion by reason of Civ. Code, $ 358, as amended in 1901, providing that, where a corporation

by Blood, the present defendant, to foreciose shall dispose of all of its property and shall fail

a mortgage he held against all of its propfor two years to elect officers and transact its erty. JeXulta, the assignor of plaintiffs, business, its corporate powers shall cease. was employed as an attorney to defend the (Ed. Yote.--For cases in point, see Cent. Dig.

action for a stipulated fee. The contract vol. 12, Corporations, $ 892.]

with MeXulta on behalf of the corporation 6. SAME-CORPORATE EXISTENCE.

was made by Barker, its president, in purCiv. Code, $ 358, as amended in 1901, provides that the incorporation of a corporation

suance of an authority given him in that claiming in good faith to be a corporation and behalf at a special meeting of the directors. doing business as such shall not be inquired in The suit of the plaintiffs was for the fees to collaterally in any private suit to which it

of McNulta for his services in defending the may be a party, and where a company claiming in good faith to be incorporated has been doing

foreclosure suit. The services were performbusiness for 10 consecutive years as a corpora

ed by him in accordance with his agreement, tion no such inquiry shall be made by any per and there is nothing in the evidence which son. A corporation was organized in 1887, and it claimed in good faith to be a corporation and

indicates fraud, bad faith, or collusion on did business as such until 1901. Thereafter a bis part. It is urged that the directors were creditor obtained judgment against it and sought not given notice of the special meeting at to pursue a stockholder to compel payment of which Barker was authorized to employ MCthe judgment. Held, that the stockholder could not question the existence of the corporation.

Yulta. Conceding, for the purposes of this [Ed. Note.--For cases in point, see Cent. Dig.

case, that his would be a good defense, eivol. 12, Corporations, $ 77.]

ther to the present action or to the action

against the corporation to recover the atIn Bank. Appeal from Superior Court,

torney's fees, it is sufficient to say that the Santa Barbara County; Felix W. Ewing,

resolution authorizing the contract with MCJudge.

Nulta was regularly entered in the minutes Action by Martha A. Robinson and an

of the corporation, which recite that the other against James A. Blood and another.

meeting was called by the president, and that From a judgment for plaintiffs, defendant

this raises a presumption that due notice James A. Blood appeals. Affirmed.

was given thereof. Granger v. 0. E. M. & M. W. S. Day, for appellant. Richards & Co., 59 Cal. 681; Balfour-Guthrie Co. v. WoodCarrier, for respondents.

worth, 124 Cal. 172, 56 Pac. 891. The evi

dence given does not, as a matter of law, SHAW, J. This is an action by the plain overcome this presumption. The court below tiffs, as judgment creditors of La Serena gave credit to the presumption as against the Land & Water Company, a corporation, testimony. We cannot interfere with its deagainst James A. Blood, a stockholder of the cision upon this conflict. corporation, in the nature of a creditors' bill, The evidence that one of the directors had to subject to the payment of the plaintiffs' ceased to be a stockholder at the time of judgment the amount due from Blood to the this meeting did not prevent his continuing corporation upon his subscription to the capi to act as a de facto director, nor make such tal stock thereof. Judgment was entered action void as to third persons. San Jose in the court below against Blood, from which Sav. Bank v. Sierra Lumber Co., 63 Cal. 179. he appeals.

The claim that the action was barred by The defenses set up by Blood are that the the statute of limitations is not urged, and previous judgment in favor of the plaintiffs it is not supported by the evidence. against the corporation is void, both for lack The principal defense appears to be the of jurisdiction and because of fraud and col claim that the corporation had ceased to lusion between plaintiffs and the president of exist before McNulta began or performed the the corporation in obtaining it; that the services, and never thereafter became a legai corporation, at the time the former suit was corporation. This claim is founded upon begun, and for a long time prior thereto, that part of section 358 of the Civil Code, as had ceased to have a legal existence; and amended in 1901, which reads as follows: that plaintiffs' cause of action is barred by "If a corporation does not organize and comthe statute of limitations. The evidence is mence the transaction of its business, or the contained in a bill of exceptions printed in construction of its works, within one year the record. The judgment against the cor from the date of its incorporation, or if, poration is not void upon its face. The com after its organization and commencement of plaint therein sufficiently states a cause of its business, it shall lose or dispose of all of

its property, and shall fail for a period of it claimed in good faith to be a corporation two years to elect officers, and transact, in and did business as such from that time regular order, the business of said corpora until the passage of this amendment in 1901. tion, its corporate powers shall cease.” The Under this clause no inquiry as to its corpoclaim is unfounded. Before the amendment rate powers can be made in this action. of 1991, the part of the section correspond Furthermore, immediately after the part of ing to the above was as follows: "If a cor the section first above quoted occurs this poration does not organize and commence the clause, "and the said corporation may be distransaction of its business, or the construc solved at the instance of any creditor of the tion of its works, within one year from the said corporation, at the suit of the state, on date of its incorporation, its corporate pow- the information of the Attorney General." ers cease." There was no failure to organize | In San Diego Gas Co. v. Frame, 137 Cal. 441, the corporation, or to begin the transaction 70 Pac. 295, under a law similar in all reof its business, within the year after its in spects to this part of section 358, it was corporation. The corporation, therefore, has held that the corporation continues to exist had a legal existence from the time of its until, in a suit for that purpose, its corpoincorporation until the present time, unless rate franchise is declared forfeited. it ceased to exist after the amendment of This disposes of all the points presented 1901, under the provisions of that amend by the appellant in support of his appeal. ment.

The judgment is affirmed. The action against the corporation to recover the attorney's fees was begun on Au We concur: BEATTY, C. J.; McFARgust 22, 1903. The corporation did not lose LAND, J.; SLOSS, J.; LORIGAN, J.; HENall of its property until June 28, 1903, at SIIAW, J.; ANGELLOTTI, J. which time its right of redemption under the sale in the foreclosure suit expired. The conditions on which the corporate powers

(5 Cal. App. 719) would cease, under the part of the amend VAN HORN V. VAN HORN. (Civ. 347.) ment above quoted, did not occur until after

(Court of Appeal, First District, California. the latter date, at all events. The corpora

June 13, 1907. Rehearing Denied by Sution was engaged in defending the foreclos

preme Court August 12, 1907.) ure suit upon its property, which appears 1. DIVORCE-EVIDENCE-WIFE'S CHARACTER. to have been the only business it had. While Under Code Civ. Proc. 8 2053, providing so engaged it cannot be said that it was fail-evidence of the good character of a party is not ing to transact its business in regular order.

admissible in a civil action, until his character

has been impeached, or the issue involves it, in The last act in this defense was the filing

a divorce action against a wife for adultery, of a petition for rehearing in the Supreme eridence as to her good character was properly Court, within 30 days after October 12, 1901.

excluded. Consequently there was not, either at the

[Ed. Note.--For cases in point, see Cent. Dig.

vol. 17, Divorce, $S 365, 372.] time the action for attorney's fees was be

2. SAME-CO-RESPONDENT'S CHARACTER. gun or on September 2, 1903, when the judg

Under Code Civ. Proc. $ 2053, providing ment therein was rendered, a failure for

evidence of a witness' good character is not ad2 years to transact the business of the cor missible until the character has been impeachporation. The subsequent expiration of the

ed, etc., where, in a divorce action against a

wife for adultery, the co-respondent was not a 2-year period could not affect the right of the

party, and had not been impeached as a witjudgment creditors to pursue the stockhold ness under section 2051, authorizing impeachers to compel payment of the judgment.

ment, evidence as to the excellence of his charAnother sufficient ground for holding that

acter was properly rejected. the corporation still has a corporate exist

[Ed. Note.-For cases in point, see Cent. Dig.

vol. 17, Divorce, $$ 365, 372, 371.] ence is found in the terms of the concluding

3. SAJE. clause of section 358, as amended in 1901.

Though the custody of a minor child was This clause is not included in the part above involved in a divorce action against the wife for quoted. It is as follows: "The due incor adultery, it was not error to exclude evidence poration of any company claiming in good

as to her good character; the minor being a faith to be a corporation under this part,

boy 15 years old, the wife having been adjudged

guilty of adultery, and the disposition of the and doing business as such, or its right to minor being within the sound discretion of the exercise corporate powers, shall not be in court. quired into collaterally in any private suit [Ed. Note. For cases in point, see Cent. Dig. to which such de facto corporation may be a

vol. 17, Divorce, $$ 305, 372, 781.] party; but such inquiry may be had at the


DENCE-GROUNDS. suit of the state on information of the At

The trial court's ruling in rejecting evitorney General; provided, however, as to any

dence will be upheld on appeal, if correct, company claiming in good faith to be, and whether the ground upon which it was based which has been doing business for ten con

was stated in the objection or not. secutive years as a corporation, no such in

[Ed. Note. For cases in point, see Cent. Dig.

vol. 3, Appeal and Error, $ 3406.] quiry shall be made either by the state or by any person whatsoever.” This corporation Appeal from Superior Court, Alameda was organized in 1887, and, so far as appears, County; F. B. Ogden, Judge,

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