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ther end of the car desired to be brought into position, and bringing it into place by a pull on the cable from the donkey engine. At the time of the accident the men had for loading a group of five cars. Four of these had been loaded, and preparations were made for bringing the fifth one into place. The track at this point was somewhat steep, and the cars were held in place by their brakes, which had to be loosened before the cars could be moved. Preparatory to loosening the brakes, the cable was hitched to the lower end of the empty car and made tight by a pull from the donkey engine. The respondent then mounted the cars, and proceeded to loosen the brakes with a short piece of gas pipe which he used as a lever. He was just loosening the last one when a pull was made in an attempt to move the cars. This pull caused one of the stay cables fastened to the gin pole to give way, letting the pole fall. falling the pole struck the respondent on the back, bearing him down upon the piece of gas pipe which he happened to be holding in an upright position, forcing the pipe entirely through his body, and causing the injury for which he sues. It appears from the record also that the appliances described were furnished by the appellant: that they were being used at the time of the accident for the purposes for which they were intended, and were so used under the direction of the appellant's foreman.

In his complaint the respondent charged that the accident was caused by the defective and dangerous condition of the stay cable which gave way and let the gin pole fall, alleging that it was carelessly and negligently fastened to the gin pole, and had become old, worn, weakened, and rusted and in need of repair, all of which was known to the appellant, or by reasonable diligence ought to have been known by it, but which was unknown to the respondent; further alleging that "by reason of the negligence of the defendant in failing to provide the plaintiff with a safe -place in which to work, and by reason of the negligence of the defendant in failing to provide a sufficient and suitable guy rope or cable to sustain the gin pole and perform the service required of the same, and by reason of the negligence of the defendant in failing to properly secure the said guy rope or cable," the gin pole fell, etc. The only evidence offered at the trial in support of these allegations was that above outlined, and the further fact that the cable gave way at the point where it was spliced to the gin pole, three of the strands of the splice breaking, and three pulling out. On the trial at the conclusion of the respondent's case, the court granted a nonsuit and discharged the jury, and later, on respondent's motion for a new trial, set the norsuit aside and granted a new trial. This appeal is from the lastmentioned order. The trial judge based its ruling on two grounds: First, that he had erred in holding that the respondent had

91 P.-36

failed to show any negligence on the part of the appellant; and, second, that he had erred in excluding certain evidence offered by the respondent, and, as these propositions involve matters of law in which the question of discretion does not enter, they are reviewable on appeal to this court.

On the question of the sufficiency of the evidence, the appellant contends that the respondent has shown nothing more than that the cable broke and that he was injured thereby, and argues that this is not sufficient to charge the respondent with negligence; that, in order to make a prima facie case, he was required to go further, and show that the breaking was caused by some defect of construction or material; and that the respondent knew or by reasonable diligence could have known of such defect. But it seems to us that the appellant has placed a too narrow construction upon the respondent's evidence. The evidence, in addition to showing that the cable broke and caused an injury to the respondent, showed that it was furnished to the respondent by the appellant for a particular purpose, and that it broke while being used in a proper manner for the purpose for which it was intended. This is some evidence of negligence on the part of the appellant. Instrumentalities intended for a particular purpose, and suitable and proper for that purpose, do not break when put to the use for which they are designed when used in a proper manner. So the converse of this proposition must be true. If the instrumentality does break when put to the use for which it is designed and used in a proper manner, it is evident that it was either defective in material or construction in the first instance, or has become so since it was put to use. Therefore, when the servant shows that the master furnished him an instrumentality to be used for a particular purpose, that he used it for the purpose intended in the manner intended, and that it broke when being so used and injured him, he makes out a prima facie case of negligence against the master. Coleman v. Mechanics' Iron Foundry Co., 168 Mass. 254, 46 N. E. 1065; Moynihan v. Hills Company, 146 Mass. 586, 16 N. E. 574, 4 Am. St. Rep. 348; Tennessee Coal, Iron & Railroad Co. v. Hayes, 97 Ala. 201, 12 South. 98; Armour v. Golkowska, 95 Ill. App. 492; Solarz v. Manhattan Railway Co., 31 Abb. N. C. (N. Y.) 426, 29 N. Y. Supp. 1123; Highland Boy Gold Min. Co. v. Pouch, 124 Fed. 148, 61 C. C. A. 40; Cincinnati, I., St. L. & C. Co. v. Roesch, 26 N. E. 171, 126 Ind. 445.

With reference to the second question, we think the evidence offered was properly excluded under the issues as made. The allegation to the effect that the appellant failed to provide the respondent with a safe place in which to work was rather a deduction from the specific acts of negligence theretofore alleged than a general allegation of negligence. As such it did not widen the scope

of the inquiry so as to admit evidence of negligence not covered by the specific allegations. Henne v. Steeb Shipping Co., 37 Wash. 331, 79 Pac. 938; Redford v. Spokane St. Ry. Co., 9 Wash. 55, 36 Pac. 1085.

In so far therefore as the order for a new trial was based on the latter ground it was erroneous, but, since it is sustained by the first ground stated, it must be affirmed. It is so ordered.

HADLEY, C. J., and CROW and RUDKIN, JJ., concur. ROOT, J., dissents.

(47 Wash. 121)

MCCLELLAN v. O'CONNOR. (Supreme Court of Washington. Sept. 7, 1907.) DEEDS-EVIDENCE-VALIDITY-FRAUD.

Evidence in an action by a sister against her brother to set aside a deed to the brother from their mother on the ground of fraud held to support findings for defendant.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 16, Deeds, § 615.]

Appeal from Superior Court, Pierce County; A. E. Rice, Judge.

Action by Mary Agnes McClellan against Thomas G. W. O'Connor. Judgment for de

fendant, and plaintiff appeals. Affirmed.

Sol Smith, for appellant. for respondent.

Welsh & Welsh,

CROW, J. The plaintiff, Mary Agnes McClellan, brought this action against her brother, Thomas G. W. O'Connor, to cancel and set aside a deed executed by one Mary O'Connor, a widow, the mother of plaintiff and defendant, to recover the title to and possession of one-half of the realty thereby conveyed, and to also recover certain personal property. From a decree quieting the title of the defendant, and refusing to cancel the deed, the plaintiff has appealed.

The evidence shows that on April 5, 1898, one William O'Connor, a single man, brother of appellant and respondent, died intestate; that certain land in Pacific county of which he died seised descended to his mother, Mary O'Connor; that on November 1, 1898, Mary O'Connor, by quitclaim deed, conveyed the land to the respondent, Thomas G. W. O'Connor; and that thereafter, on October 27, 1903, Mary O'Connor died intestate; that on November 27, 1905, more than seven years after the execution of the deed, and more than two years after the death of Mary O'Connor, the appellant, Mary Agnes McClellan, instituted this action, alleging that the respondent had procured the execution of the deed by fraud and misrepresentation; that Mary O'Connor, the grantor, was without business capacity; that she did not know what she was doing; that the deed was without consideration; that the land therein described still belonged to her estate; and that the appel nt as her heir at law was entitled to a one-half interest therein. Appellant demanded that the deed

be canceled and set aside, and that she be awarded an undivided one-half interest in the land. The trial court found that the deed was the valid and voluntary act of Mary O'Connor, that she was of sound mind, and that she intended to convey all of the realty to the respondent. Although many assignments of error have been presented, and numerous points are discussed in the briefs, the one controlling question on this appeal is whether the findings are sustained by the evidence. Having carefully examined and weighed all of the evidence, we conclude that they are supported by its clear preponderance. The appellant by two marriages, both contracted against the opposition of her parents then living, had become estranged from them. She had been divorced from her first husband, and the evidence shows that her mother determined that neither she nor her second husband should receive any of the land; that Mary O'Connor voluntarily executed and delivered the deed to her son, the respondent, with whom she lived, and by whom her support was provided; and that she was at the time in complete possession of all her faculties, being of sound mind. There is an utter failure of competent evidence tending to show any fraud on the part of the respondent, or that he overreached his mother in any manner. No good purpose would be accomplished by discussing the evidence in detail. It is sufficient to state that it clearly sustains the findings made by the trial court, and the final decree entered.

The judgment is affirmed.

IIADLEY, C. J., and FULLERTON, RUDKIN, MOUNT, and DUNBAR, JJ., concur.

(47 Wash. 103)

GRUBB v. STEWART et al. (Supreme Court of Washington. Sept. 6, 1907.) 1. USURY-PLEADING-NECESSITY For Plea of

USURY.

Usury is unavailable as a defense unless pleaded.

[Ed. Note. For cases in point, see Cent. Dig. vol. 47, Usury, § 276.]

2. SAME-PERSONS ENTITLED TO PLEAD.

Where defendants were not creditors nor in privity with an investment company which was complainant's debtor under a contract on which complainant's claim was based, they could not avail themselves of the defense that the contract sued on was usurious; such defense being personal to the debtor and his privies.

[Ed. Note. For cases in point, see Cent. Dig. vol. 47, Usury, § 364.]

Appeal from Superior Court, Clallam County; Geo. C. Hatch, Judge.

Suit by Betsy P. Grubb against James Stewart and others. From a decree in favor of complainant, defendants appeal. Affirmed.

James Stewart and Graves, Palmer & Murphy, for appellants. Trumbull & Trumbull, for respondent..

MOUNT, J. On the 5th day of January, 1899, the United States Savings & Loan Company, a corporation located at St. Paul, Minn., entered into a contract with the Pacific & Oriental Investment Company, a corporation located at Port Angeles, in this state, to sell to the last-named corporation lot 3, in block 13. of the town of Port Angeles, for a consideration of $1,700. According to the terms of this contract, $425 was to be paid in cash upon delivery of the contract, and thereupon possession of the property was to be delivered to the purchaser. Four hundred and twentyfive dollars was to be paid on or before January 1, 1900, and like amounts on January 1, 1901, and 1902. The deferred payments were to bear interest at 8 per cent. per annum, and the purchaser was to keep the improvements on the premises insured and the taxes, etc., paid. Time was made the essence of the contract, and, in case of noncompliance by the purchaser, all payments thereon were to become forfeited to the selling corporation. This first payment upon this contract was made by Mrs. Grubb, the respondent in this case, and thereupon she and the investment company entered into the following agreement: "Por: Angeles, Washington, March 28, 1899. To Whom it May Concern: This is to certify that the sum of four hundred and twenty-five dollars ($425) has been paid by Mrs. Betsy Grubb, of the city of Port Angeles, Washington, as first payment of purchase of lot three (3), block thirteen (13), of the original government townsite of Port Angeles, with the buildings thereon. And the agreement of sale made to the Pacific & Oriental Investment Company by the United States Savings & Loan Company is held in trust by the said Pacific & Oriental Investment Company for the said Mrs. Betsy Grubb upon the following conditions, to wit: The said Pacific & Oriental Investment Company to have and to hold possession of said property for the term of one year from January 1, 1899, in consideration of said company paying taxes for the year 1898 and paying interest and insurance on same. And it is further expressly agreed and understood that should the said Pacific & Oriental Investment Company at any time during the year 1899, or up to the 4th day of January, 1900, pay the said Mrs. Betsy Grubb the sum of seven hundred dollars ($700) gold coin, then the said Mrs. Betsy Grubb relinquishes all claim to said property and invests the title in the Pacific & Oriental Investment Company." This contract was duly signed and acknowledged. On December 26, 1899, Mrs. Grubb sought advice from appellant Stewart, who was then a practicing lawyer in Port Angeles, as to what she should do in case the Pacific & Oriental Investment Company should fail to pay the $700 named in said contract on or before January 4, 1900. Mr. Stewart advised her, and drafted a letter to be sent to the United States Savings & Loan Company at St. Paul, notifying that company

of the interest of Mrs. Grubb in the contract of sale. This letter was accordingly sent and receipt thereof acknowledged by the savings and loan company. Thereafter, on January 5, 1900, the trust agreement was placed of record in Clallam county where the land was located; but thereafter no payment of the sum of $700, or any part thereof, was made to Mrs. Grubb. The Pacific & Oriental Investment Company subsequently, up to the year 1902, paid the United States Savings & Loan Company on the purchase price of the lots about $800 in principal and interest, besides the first payment above named; but, notwithstanding payments were not made as agreed to in the contract, no forfeiture was claimed. On the 11th day of July, 1902. the Pacific & Oriental Investment Company, in consideration of $10, assigned its contract of purchase to the respondent Stewart, and the assignment was approved by the savings and loan company. Mr. Stewart thereafter completed the payments due on the original contract, and on July 14, 1903, took title in himself from the United States Savings & Loan Company. Thereafter, on November 26, 1904, Stewart conveyed the premises to the appellants Nellie Mastick and husband for an alleged consideration of $1,800, and took a mortgage back for $1,300. Thereafter this action was begun by respondent, alleging that she was the equitable owner, and praying that the appellants be decreed to hold the legal title in trust for her. She did not offer to repay Stewart the money he had advanced on the purchase price of the lots. The appellants answered, alleging, in short, that the $425 advanced by respondent to the Pacific & Oriental Investment Company was advanced as a loan, and that the same had been fully paid, and, if not paid, was barred by laches. The trial court found that the amount advanced, viz., $425, to the Pacific & Oriental Investment Company, was a loan, and that the trust agreement amounted to a lien on the lot for said sum of $125, with interest at 7 per cent., and ordered the property sold to satisfy this claim, provided the amount was not paid by the appellants within 60 days. This appeal is prosecuted from that judgment.

The principal point contended for by the appellants is that the contract between respondent and the Pacific & Oriental Investment Company was usurious, and for that reason the principal should have been reduced by the amount of usurious interest contracted for under section 3671, Ballinger's Ann. Codes & St. It is not necessary for us to decide the question whether the contract between respondent and the Pacific & Oriental Investment Company as set out above was usurious, because the appellants cannot be permitted to raise this question in this case, for two reasons: First. The defense of usury was not pleaded in the answer. "When usury is relied upon as a de

PER CURIAM. This is a proceeding in disbarment brought against E. J. Grover, a practicing attorney of this state, by the re

fense, it must be pleaded," especially where usury does not appear upon the face of the record. Brundage v. Burke, 11 Wash. 679, 40 Pac. 343. Second. The appellants acquir-spondents, who are also practicing attorneys ed the property with full notice, both actual and constructive, of the claim of the respondent.

The deed from the United States Savings & Loan Company to Mr. Stewart recited that it was made "subject to any liability which may arise by reason of anything which may have been done by the parties under the contract issued to the Pacific & Oriental Investment Company, or any one claiming under them, and by reason of which contract this conveyance is made to the second party as assignee thereof." The appellants were not creditors, nor in any way in privity with the Pacific & Oriental Company, the debtor of the respondent, and therefore could not plead the defense of usury, because such defense is personal to the debtor or privies, and cannot be set up by a stranger. 29 Am. & Eng. Enc. of Law (2d Ed.) p. 534; 2 Current Law, p. 1766; Lamoille County Nat. Bank v. Bingham, 50 Vt. 105, 28 Am. Rep. 490, and authorities cited in note to page 491 of 28 Am. Rep. (50 Vt. 105).

Under the facts stated above, which are substantially undisputed, we are satisfied the judgment was right. It is therefore affirmed.

HADLEY, C. J., and CROW, FULLERTON, and DUNBAR, JJ., concur.

(47 Wash. 39)

STATE ex rel. HARDIN et al. v. GROVER. (Supreme Court of Washington. Sept. 5, 1907.) 1. ATTORNEY AND CLIENT — DisBarMENT OF ATTORNEY-JURISDICTION.

Where defendant, a regular practicing attorney of the superior court, in proceedings in bankruptcy in the federal court solicited and collected money from his client on the pretense that it was needed to bribe the referee in bankruptcy, the offense was one directly involving his integrity and professional honor, so that the superior court had jurisdiction to disbar him, though the offense was committed in another jurisdiction.

2. TRIAL-FINDINGS-SEPARATION.

Where a petition for disbarment contained two distinct charges or specifications, the court was not required by Ballinger's Ann. Codes & St. § 4942, requiring different causes of action, when united in one complaint, to be separately stated, nor by any other section of the Code, to separate its findings with reference to the separate charges specified; it being sufficient that the findings of fact and conclusions of law were separately stated as required by section 5029.

Appeal from Superior Court, Whatcom County; A. W. Frater, Judge.

Disbarment proceedings by the state of Washington, on relation of Ed. E. Hardin and others, against E. J. Grover. From a judgment of disbarment, defendant appeals. Affirmed.

Healy & Slentz and McCaferty, Bell & Godfrey, for appellant. Ed. E. Hardin, H. M. White, and Lin H. Hadley, pro se.

of this state and members and representatives of the Whatcom County Bar Association. Specific charges of unprofessional conduct were made in writing, filed in the superior court, and a citation issued to the appellant requiring him to appear and show cause on a day named therein why he should not be disbarred from further practice as an attorney at law. The appellant appeared, and put in issue the allegations of misconduct charged against him, and also set up new matter by way of an affirmative defense. A reply was filed denying the new matter alleged, and on the issues thus made a trial was had resulting in a judgment disbarring the appellant from practicing his profession for a term of two years. This appeal is from that judgment.

The appellant first assigns error on the ruling of the court refusing to dismiss the proceeding for want of jurisdiction. This assignment is based on the fact that the acts of misconduct charged against the respondent related to his conduct with reference to certain claims against a bankrupt whose estate was then pending before a referee in bankruptcy appointed by the District Court of the United States for the Western District of Washington; the charges being that the appellant had solicited and collected money from his clients under the pretense that the same was needed for the purpose of bribing the referee in order to induce him to render a favorable decision on the client's claim. It is argued that this is in the nature of a contempt to the referee in bankruptcy, and consequently the only court authorized to punish the offense was the District Court of the United States, by which the referee in bankruptcy was appointed. But this contention mistakes the nature of the offense. The offense committed by the appellant was not a contempt committed before the referee in bankruptcy. It was in the nature of a substantive offense, directly involving his integrity and professional honor, and his fitness to practice as an attorney at law. court, the bar of which the delinquent is a member, has jurisdiction to disbar for unprofessional conduct, when and wherever committed, whether the unprofessional conduct relates to matters occurring in court, or to a purely private and personal transaction between the attorney and his client, and the superior court in this instance had jurisdiction.

Any

The petition for disbarment contained two distinct charges or specifications. In making its findings the trial court did not make these the subject of distinct findings, but found the facts as if the charge contained but one specification, numbering the findings seriatum from 1 to 14. It is argued that this is fatal to the validity of the judgment, as the find

ings on the different specifications should have been separate, distinct, and independent, inasmuch as the charges were separate, distinct, and independent. But there is no rule of law or practice that requires the findings to be different than they were made by the court. The Code, of course, requires different causes of action when united in one complaint to be separately stated (Ballinger's Ann. Codes & St. § 4942), but there is no such requirement with reference to findings of fact. These are sufficient when given in writing and separately stated from the conclusions of law (Id. § 5029), and this latter requirement was complied with by the trial court.

Finally, it is contended that the evidence does not justify the findings of fact; but, while a large space in both briefs is devoted to an argument of this question, we do not feel that a discussion of it here would serve any useful purpose. We have already indicated the nature of the charges, and it is sufficient to say that a careful examination of the testimony convinces us they were substantially proven.

The judgment appealed from must be affirmed; and it is so ordered.

(47 Wash. 45)

SCHNEIDER v. GREAT NORTHERN RY.

CO.

(Supreme Court of Washington. Sept. 5, 1907.) 1. TRIAL-RECEPTION OF EVIDENCE-REMARKS OF JUDGE.

A remark by the court in overruling an objection to evidence that he did not think it was very material nor entitled to much weight, but that the jury might consider it, was objectionable as a comment on the evidence, prohibited by Const. art. 4, § 16.

[Ed. Note. For cases in point, see Cent. Dig. vol. 46, Trial, § 81.]

2. APPEAL-MISCONDUCT OF COURT-PREJU

DICE.

Where the court in ruling on the evidence remarked that it was not very material nor entitled to much weight, but the jury might consider it, and on exception taken did not withdraw the same, nor give any caution to the jury that it was their duty to judge as to the weight and credibility of the evidence, the remark was prejudicial.

[Ed. Note. For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 4135.]

3. WITNESSES-CREDIBILITY-EVIDENCE.

Where, in an action for ejection of a passenger, there was a sharp conflict between plaintiff and the conductor as to what occurred when plaintiff was required to leave the train, evidence concerning plaintiff's condition as to sobriety at the time was admissible as bearing on his credibility.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 50. Witnesses, $$ 1101, 1102.] 4. SAME-CROSS-EXAMINATION.

Where, in an action for ejection of a passenger, plaintiff claimed to have suffered severe physical injuries, and testified that after the injury, on the same day, he visited another town, going and coming on defendant's trains, before he consulted a physician concerning his injuries, vidence as to the purpose of his visit was ad

missible as bearing on the question whether he was exaggerating his condition.

[Ed. Note. For cases in point, see Cent. Dig. vol. 50, Witnesses, §§ 1106-1108.]

Appeal from Superior Court, Spokane County; Miles Poindexter, Judge.

Action by William A. Schneider against the Great Northern Railway Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

M. J. Gordon and Charles A. Murray, for appellant. A. G. Gray, for respondent.

FULLERTON, J. The respondent, on July 3, 1906, being then a resident of Newport, Wash., purchased a round-trip ticket from that place to Sandpoint, Idaho. His purpose in going to Sandpoint was to attend a celebration of the national holiday. He reached Sandpoint some time in the evening of the 3d, stayed there over the 4th, and started for home on an early train which passed through Sandpoint at about 5 o'clock on the morning of the 5th. He was somewhat late when he reached the station, and boarded the train, with the assistance of the brakeman, after it had started to move out. The conductor was taking tickets in the car into which the respondent entered, and took up the respondent's ticket without giving him a seat check in return. On reaching a seat the respondent immediately went to sleep. When the train arrived at Priest River, a station between Sandpoint and Newport, the conductor approached the appellant, woke him up, and insisted that he get off the train. There is a sharp conflict in the evidence as to what occurred at that time, but the controversy ended by the respondent's getting off the train assisted by the conductor. After they reached the station platform, some further talk was had, when the respondent was permitted to reboard the train and ride to the destination called for in his ticket. It is the respondent's contention that he was removed from the train with such force and violence as to injure him physically, and he brought this action to recover for his physical injuries, as well as the shame and disgrace of having been wrongfully expelled from the train. The trial resulted in a verdict and judgment in respondent's favor in the sum of $700, and this appeal is prosecuted therefrom.

On the trial, the appellant put the conductor on the witness stand and proceeded to question him concerning the plaintiff's condition as to intoxication at the time he was put off the train at Priest River. To this the respondent objected, and the court, ruling upon the objection, said: "I don't think it is very material, or entitled to much weight, but the jury may consider it." The appellant thereupon excepted to the remarks as a comment upon the evidence, but the court neither withdrew the remarks from the jury, nor gave them any caution as to whom the duty belonged of judging the weight and credibility of the evidence. Manifestly the

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