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(230 P.) to the judgment creditor, the bank, to which , dition of their title, and this, according to a sheriff's certificate of sale was issued. the finding of the lower court, they failed to

[2] We think the deed given by the bank | do. Under the authorities, such a situation was in effect one of bargain and sale, under would justify the purchasers in seeking to section 10553, Rem. Comp. Stat., which gives have a rescission of the contract. It seems a form of deed as follows:

to us that it is but fair that under the cir"The grantor

bargain, sell, and cumstances these parties should be put in convey the following described real | statu quo, and this is what the trial court

did.

Hege & Watkins have cross-appealed as The same section provides that every deed against the judgment entered in favor of the in substance as above indicated shall con- administratrix. Their argument on this vey an estate of inheritance in fee simple, branch of the case is very brief, and we and shall be adjudged an express covenant think without merit. They unquestionably to the grantee that any grantor was seized became indebted to the administratrix, and of an indefeasible estate in fee simple free she is entitled to recover against them. She from incumbrances done or suffered by the

ad nothing whatever to do with the contrograntor. There is a very serious dispute as to whether the bank originally represented versy between the bank and them.

The judgment is affirmed. that it was the owner of the property, it claiming that it had merely represented that

MAIN, C. J., and FULLERTON, MITit had a sheriff's certificate of sale, while Hege & Watkins claim that it represented CHELL, and PEMBERTON, JJ., concur. that it was the owner. On this question the trial court found with Hege & Watkins. But even if it should be conceded that the latter knew that the bank had sold this property CLARK v. DEPARTMENT OF LABOR AND under a judgment, and that it had received

INDUSTRIES. (No. 18559.) a sheriff's certificate of sale, but that it had

(Supreme Court of Washington. Nov. 14, not received a sheriff's deed, still, under the

1924.) facts, they were unquestionably led to believe that the sale had been made under a I. Master and servant 417(7)-Decision of judgment against þoth Dobson and wife, and Department of Labor and Industries entitled that by such sale their interest had been di

to great weight. vested. Such being the fact, the bank did

On appeal under Workmen's Compensation not deliver what it agreed to, or what its Act, decision of Department of Labor and Indeed indicated it owned. In other words, is on injured person to overcome it.

dustries is entitled to great weight, and burden even if the bank had procured the sheriff's deed, it still had a very defective title, if 2. Master and servant Cw405 (4) - Testimony any. Under those circumstances, it would

held to sustain finding blow on abdomen not be fair or right that Hege & Watkins

caused appendicitis compensable as “injury;" should be required to accept the property

“trauma.” and sue for damages. Whether one who has

Where employee, while sorting blocks, was received a deed to real estate may rescind struck on abdomen by one of them and appen

dicitis followed, evidence held to sustain findas a matter of right, or must rely upon the ing that blow caused appendicitis, within Rem. covenants of his deed and sue for damages, Comp. St. $ 7675 defining "injury” and “init is not necessary for us here to determine. jured,” entitling her to compensation under If it be conceded that the rule is that, where section 7679; word “trauma," testified to be a contract has been executed by the delivery capable of superinducing appendicitis, meaning of instruments of conveyance, the purchaser any injury to body caused by violence, also the may not rescind, but must rely upon the violence that causes it. covenants of his deed, yet there is at least

(Ed. Note.-For other definitions, see Words one very general exception to this rule, which and Phrases, First and Second Series, Injury.] was stated by us in French et al. v. C. D. & E. Inv. Co., 114 Wash. 416, 195 P. 521, as fol

Department 2. lows:

Appeal from Superior Court, Spokane “There is, however, one well-defined excep

County; Webster, Judge. tion to this rule, and that is that an executed Proceeding under the Workmen's Compencontract may be rescinded, and the amount of sation Act by Ruth Clark for personal inthe purchase price recovered by a suit in jury, opposed by the Diamond Match Comequity, where it is alleged and proven that

Decision of the Departfraud entered into the making of the contract." pany, employer.

ment of Labor and Industries, rejecting While there may not have been any actu- claim, was reversed by the superior court, al fraud in this case, there was, in our judg- and the Department appeals. Affirmed. ment, fraud in law. It was the duty of the John H. Dunbar and M. H. Weght, both bank to inform Hege & Watkins of the con- i of Olympia, for appellant,

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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Roy A. Redfield, of Spokane, for respond-, the findings of the Department of Labor ent.

and Industries are prima facie correct, and

the conclusion reached by it must be susHOLCOMB, J. Respondent, an employee tained, unless the evidence clearly preponof the Diamond Match Company, while en

derates against such conclusion-citing gaged in extra hazardous work in its fac- Marney v. Industrial Insurance Department, tory, was injured. Her work consisted of 98 Wash. 483, 167 P. 1083, and Tomovich v. sorting blocks conveyed from saws. The

Department of Labor and Industries, 126 blocks measured 2 inches by 234 inches, and wash. 287, 218 P. 197. from 6 to 20 inches in length. While so

Appellant also contends that the quesengaged, at about 10 o'clock in the morning, tion involved is purely a medical one, and on June 7, 1923, one of the blocks was the only testimony respondent has as to thrown from a saw and struck respondent whether appendicitis was caused by, or the on the right side of the abdomen. Almost result of, the blow was that of two płyimmediately she complained of severe pain, sicians.

Four physicians, including the and suffered from nausea. The following chief medical officer of the department, were morning her doctor determined that she was called by appellant. suffering from acute appendicitis, which

There is a direct conflict between the condition continued for 11 days, at which

testimony of the doctors. Those for retime an operation for the removal of the spondent, including the physician who treatappendix was performed. The appendix ed respondent immediately after the injury, was found to be three times normal size, and continued the treatment until after the and had reddened veins, showing it to be in operation, testified that appendicitis can be a condition of inflammation. Her claim

superinduced by trauma. Trauma means was presented to the Department of Labor any injury to the body caused by violence; and Industries, under the Workmen's Com- also the violence that causes it. New Standpensation Act, and was by it rejected, on

ard Dictionary. the ground that “claimant's condition was

The chief medical officer of the departnot the result of the accident, within the ment seemed to be very positive in his meaning of the Compensation Act.” An

views that appendicitis does not result from appeal was taken from that decision to the

accident; that nothing could change his superior court, which, after a trial without mind on that subject. a jury, found and concluded, in favor of

[1] The trial court, while properly holdrespondent, that her injury was the cause ing that the department's decisions · of the appendicitis, and that she was en-entitled to great weight, and that the burtitled to recovery. From a judgment thereden is upon the injured person to overcome upon this appeal comes.

the weight of the department's decisions, Appellant contends that two conditions

held, with the physicians testifying for remust exist in order to allow compensation: spondent, that the blow caused the appendi(1) An accident must have occurred; (2)

citis. the disability must have resulted from such

[2] The view of the trial court and the accident. Section 7675, Rem. Comp. Stat.; physicians testifying for respondent is fordefines the words “injury” and “injured” | tified by an article in the American Medical as follows:

Association Journal, of May 19, 1923, by "The words “injury' or 'injured' as used in Dr. Luddington, of New Haven, Conn., in this act refer only to an injury resulting from which medical writers of world-wide fame some fortuitous event as distinguished from the

were quoted, to the effect that appendicitis contraction of disease.”

may be, and often is, caused by a blow on Section 7679 provides that:

the abdomen, or severe muscular strain.

Dr. Osler, the famous English medical au"Each workman who shall be injured shall receive

compensation in accord-thority, was quoted to the effect that, “Trauance with the following schedule.

ma plays a very definite rôle, and in a num

ber of cases the symptoms have followed Appellant asserts that the simple fact very closely a fall or a blow." This article that the accident occurred, followed by a in itself is very logical and convincing. disability, is not compensable, where the On the whole, therefore, we are satisfied disability was the result of disease, and that the finding of the trial court reversing the disease was not the result of, or caused the Department of Labor and Industries, by, the accident.

and in favor of respondent, is well sustained It is conceded that the direct cause of by a preponderance of the satisfying evi. the disability was appendicitis. Respond-dence. ent contends that the blow received was In Shadbolt v. Department of Labor and the cause of appendicitis, while appellant Industries, 121 Wash. 409, 209 P. 683, we contends that the blow did not, and could held that: not, produce appendicitis, or be its contribut

"Even though the appendix was diseased, and ing cause, Appellant further contends that in course of time would have ruptured without

are

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(230 P.) any external pressure, if its rupture was ac- | port the third and fourth conclusions of celerated by such pressure, this would consti- law and judgment. The findings and contute an injury"

clusions, omitting formal parts, are as fol

lows: -within the meaning of the statute defining injury, supra-citing cases and authori “III. That on July 13, 1922, plaintiff entered ties. This case is very much like that, and into a contract with the defendant, Rocheswe are convinced that respondent is entitled ter Wholesale House, by the terms of which

the Rochester Wholesale House agreed to sell to recover. The judgment of the trial court is af- and deliver to plaintiff 3,780 pairs of woolen

drawers, new, packed in original mill cases, firmed.

consisting of a good assortment of sizes from

30 to 42 at 35 cents each. Said contract furMITCHELL, MACKINTOSH, FULLER- ther provided that plaintiff deposit 20 per cent. TON, and PEMBERTON, JJ., concur. with the Rochester Wholesale House upon said

order. And plaintiff accordingly forwarded to,
and the defendant has received, the sum of

$252 deposit upon said contract. That said KOLATCH v. I. ROME & SONS et al.

contract was in writing, and is evidenced by a (No. 18754.)

series of telegrams.

"IV. That the defendant, Rochester Whole(Supreme Court of Washington. Nov. 18, sale House, has failed, neglected, and refused 1924.)

to deliver the drawers stipulated in said con

tract, and has retained said deposit, but has 1. Garnishment am 244-Defendant and surety offered to deliver as an alleged performance on discharge bond held liable for any judg. thereunder drawers of inferior quality and of ment rendered on plaintiff's cause of action. cheaper market price, wholly in defiance with

Defendant, giving garnishment discharge their contract with the plaintiff; that said bond under Rem. Comp. Stat. 8 689, to “per- drawers so offered were renovated and not new; form the judgment of the court in the above were not packed in original mill cases, but in entitled action," and its surety, held liable for bales, were not of assorted sizes, but 95 per any judgment rendered on plaintiff's cause of cent. size 32; that 'good assortment of sizes' action.

means, to the trade, approximately the follow2. Garnishment om 24312-Surety on discharge

ing proportions in every dozen: bond held not released from liability by dismissal of principal defendant. Voluntary dismissal of principal defendant

34 from action held not to vary obligation of sure

36 ty on discharge bond, so as to release it from liability thereon. 3. Garnishment om245_Liability of principal and surety on discharge bond held determin V. That plaintiff has been damaged by the able in main action.

aforesaid breach of contract in the sum of 1916 Liability of principal and surety on gar- cents per pair, amounting to seven hundred nishment discharge bond held determinable in twenty-four and 50/100 ($724.50) dollars; said main action, as well as in action on bond. 1976 cents per pair being the difference between

the contract price and the actual market value Department 2.

at the time said contract was made and Appeal from Superior Court, King Coun

breached. ty; Brinker, Judge.

"VI. That due demand for performance of

said contract has been made, which demand Action by Sander Kolatch, sole trader, has been refused. doing business as the Seattle Jobbing House, VII. That said goods of the defendant ofagainst I. Rome & Sons, a corporation, and fered in purported compliance with the conothers. From judgment discharging bond tract herein, have been impounded by the servfor release of property held under garnish- ice of writs of garnishment, issued out of this ment, plaintiff appeals. Reversed.

court on November 13, 1922, directed against

Federal Reserve Bank, a corporation, and Bausman, Oldham & Eggerman and Edw. Northern Pacific Railway Company, a corporaL. Rosling, all of Seattle, for appellant.

tion, and that said writs have been dissolved McClure & McClure and Walter S. Osborn by the giving of a redelivery bond, in which all of Seattle, for respondents.

I. Rome & Sons is principal, and the National
Surety Company is surety, which bond is con-

ditioned to pay such judgment as the court may HOLCOMB, J. This appeal is from a

enter in this action. judgment discharging and canceling a dis "Done in open court this 25th day of Februsolution or discharge bond given to obtain 1924.

Otis W. Brinker, Judge. the release of property. held under garnishment. The appeal comes here on the tran

"From the foregoing findings of fact, the script of the record; no statement of facts court makes the following conclusions of law:

“I. That plaintiff is entitled to a judgment being brought up, and the only question in- against the Rochester Wholesale House in the volved is whether or not the findings sup- sum of $976.50 with interest on $352 from

Sizes.

30
32

1 1 2 3 3 1 1

38 40 42

ary,

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cor

July 24, 1922, to November 1, 1922, and on said , judgment of the court in the above-entitled aggregate sum from November 1, 1922, and for case, then this obligation shall be void, othercosts and disbursements herein, such judg-wise to remain in full force and virtue." ment to be payable only out of the interest of the Rochester Wholesale House in the goods

The bond to discharge the garnishment impounded by the writs of garnishment issued out of this court on November 13, 1922, direct

was executed and filed on November 30,

1923. ed against the Federal Reserve Bank, a corpo

An order discharging the garnishration, and the Northern Pacific Railway Comment provided by statute, supra, was made pany, a corporation.

on the same day. On December 18, 1923, “II. That the bond to discharge the writs of two days prior to the trial of the action, garnishment given by defendant, I. Rome & on December 20, 1923, appellant (plaintiff Sons, as principal, and National Surety Com-below) procured an order voluntarily dispany, as surety, which bond is dated November missing with prejudice the defendant, I. 30, 1923, operated to discharge said writs and became substituted security for such judgment Rome & Sons, a corporation, from the prinas plaintiff might obtain in this action.

cipal action. "III. That by the entry of the voluntary non It will be remembered that the trial court suit herein with prejudice and with costs, as found that "the defendant Rochester Wholeagainst the defendant I. Rome & Sons, the sale House has failed, neglected, and reprincipal and surety on said discharge bond fused to deliver the drawers stipulated in were released and discharged from all liability said contract, and has retained said deposon said bond.

"IV. Judgment should be entered canceling it, but has offered to deliver as an alleged and discharging said bond and holding the same performance thereunder drawers of an infor naught."

ferior quality,” etc., and, further, “that said

goods of the defendant offered in purported Defendant Rochester Wholesale House, a

compliance with the contract herein have nonresident corporation, was served by pub- been impounded by service of writs of garnlished summons, and a writ of garnishment ishment issued out of this court on," etc. was obtained to support the process, in

So that the court found that the defendant which the Federal Reserve Bank, a

Rochester Wholesale House's goods, which poration, and the Northern Pacific Railway it offered to deliver in purported compliCompany, a corporation, were named as

ance with its contract, were the same goods garnishee-defendants. The Rochester Whole which were impounded by garnishment prosale House made no appearance, and its ceedings, and, of course, the same goods default was duly entered after the comple- which were discharged to the defendant, I. tion of the publication of summons.

Rome & Sons, under their discharge bond. The discharge bond was given by the

[1] We are compelled to conclude that, defendant I. Rome & Sons, a corporation, under this bond, which provided that, “if under the provisions of section 689, Rem. Rome & Sons, a corporation, defendants, Comp. Stat., providing that:

shall perform the judgment of the court in "If the defendant in the principal action, the above-entitled action,” given pursuant shali at any time before the entry of final judg-to the statute for a discharge bond so conment in said principal action, cause a bond to ditioned, Rome & Sons, as principal and be executed to the plaintiff with sufficient sureties, to be approved by the officer having the its surety, rendered themselves liable for writ of garnishment, or after the return of said any judgment which might be rendered by writ, by the clerk of the court out of which the court upon appellant's cause of action. said writ was issued, to the effect that he will [2] Respondent contends that the dismissperform the judgment of the court; the writ of al of Rome & Sons as the principal defendgarnishment shall, upon the filing of said bond ant varied the obligation of the surety on with the clerk, be immediately discharged, and the discharge bond, and released it from all proceedings had thereunder shall be vacated.

liability thereon. We cannot assent there

to, In Petri v. Manny, 99 Wash. 601, 170 Accordingly the bond was conditioned as P. 127, 1 A. L. R. 1595, wherein a dissolufollows:

tion bond and attachment was dissolved, "The condition of this obligation is such that, we held that sureties were not liable where whereas, in the above-entitled case a writ of several causes of action were added to the garnishment was issued by said court on the complaint after the dissolution bond was 13th day of November, 1922, directed against given, as to that portion of the judgment the Federal Reserve Bank, a corporation, and based on the added causes of action, but the Northern Pacific Railway Company, a corporation, and served by the sheriff of King were liable on the original cause of action. county upon the said garnishee defendants on

That the material change was held not to said day, as more fully appears by the sheriff's be a variation of the surety's risk, so as to return on file in said cause; and

discharge him. It was there said as to such "Whereas, the defendant, I. Rome & Sons, a bond and attachment: a corporation, desires to obtain the discharge of such writ of garnishment;

"The intent of the statute clearly is that “Now, therefore, if the said Rome & Sons, the bond given to perform the judgment of the a corporation, defendant, shall perform the court merely contemplates such a judgment as

ren

(230 P.) shall follow from the cause of action pleaded | pal from liability, in which case the surety at the time of its execution."

would also have been released." We held in Kleeb v. Bard, 12 Wash. 140, See, also, note to 51 L. R. A. (N. S.) 655, 40 P. 733, in an action upon an injunction containing a large collection of cases on that bond, that:

subject, showing that the overwhelming "The sureties upon a bond given to secure

weight of authority is to the effect that the satisfaction of any judgment

such dismissal of one defendant does not dered in a certain 'action, cannot, in an action impair the obligation of the surety or the upon the bond, set up the defense that their principal on the dissolution bond. liability had been increased through the dis [3] It is true, as respondent points out, missal of the original action as to one of the that this is not an action on a bond, but defendants, when such defendant is one of the the liability of the principal and surety is principals in the bond.” Syllabus.

nevertheless to be determined. We feel In McCutcheon v. Weston, 65 Cal. 37, 2 bound to conclude that the dismissal of P. 727, the court said:

Rome & Sons as a defendant did not re"The point that judgment was recovered lease it as a principal nor as surety upon against one of the defendants only, in the at the discharge bond. The third and fourth tachment suit, is not well taken. The action conclusions of law, and the judgment are was against two, and the undertaking was to consequently not sustained by the findings. pay 'if the plaintiff shall recover judgment in The judgment is therefore reversed. said action.'' In Campbell V. Brown, 121 Mass. 516,

MAIN, C. J., and MACKINTOSH, BRIDGquoting from the syllabus:

ES, and FULLERTON, JJ., concur. "A. & B. were sued as joint owners of a vessel, and the vessel attached as their property. B. gave a bond to dissolve the attachment un

MORRISON v. AHRENS & AHRENS, Inc. der the General Statutes [cited), in which A.

(No. 18590.) did not join, and the vessel was delivered to B., who obtained judgment in his favor. Judgment (Supreme Court of Washington. Nov. 18, was obtained against A. on default. Held, that

1924.) an action would lie on the bond against B."

1. Money received @ 6(6)-Automobile dealers In that case two cases cited and relied held not entitled to retain proceeds of old upon by respondent, which, however, are in car to apply on purchase price of new car. the minority upon the question here in Automobile dealers, to whom old car was volved (Eveleth v. Burnham, 108 Mass. 374, delivered without agreement as to terms of and Walker v. Dresser, 110 Mass. 350) were anticipated purchase of new car, except that distinguished as follows:

credit should be given for sale price of old

car, after sale of which parties were unable to “No circumstances were shown, indicating agree on manner of payment for new car, held that it was intended to be binding only in case not entitled to hold proceeds to apply on purof a judgment against the principal giving it chase price of new car nor to deduct profit (such as have been found in some other cases), they would have made had owner made such which could modify the effect of the language purchase; there being no binding agreement used (citing the above cited cases). If Brown to purchase new car if old one were sold. had desired to release only his own property from attachment, and to escape liability upon

2. Money received em 19(4)-Dealers selling any judgment against his codefendant alone,

car for owner held entitled to deduction of he should have given a bond to secure only such

amount of repair bill from judgment for projudgment as might be recovered against him

ceeds, self. Leopard . Speidel, 104 Mass. 356.".

One suing for entire sale price of auto

mobile, turned over to dealers by him for sale, In King v. Malone, 91 Conn. 342, 99 A. thereby ratified dealers' action in making re691, the Supreme Court of Connecticut held pairs essential to making sale, which was for that, dropping one of the defendants from larger sum because of them, and dealers were the case where three defendants were sued, entitled to deduction of such amount from judgand property attached, in no way increased

ment against them for proceeds of sale. the liability of either on the bond, and did

Department 2. not drop such defendant from the bond, Appeal from Superior Court, Spokane where he had joined in the bond with sure- County; Blake, Judge. ties, and recourse could still be had against the bond and sureties.

Action by C. W. Morrison against Ahrens

The court there observed:

& Ahrens, Inc. Judgment for plaintiff', and

defendant appeals. Modified. “As dropping Mullaley did not release him from his liability on the bond, the fact that

Allen, Winston & Allen, of Spokane, for the plaintiff was active in causing him to be appellant. dropped is of no importance. It would only be

Merritt & Curtiss, of Spokane, for respondof importance had his act released the princi- ent.

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