strength to the possibility that the spark arrester was defective, and this, accompanied by the other established facts that sparks were seen to escape from the engine and that the fire occurred shortly after the passing of the engine and train of cars, leads to the probability that the cause of the fire was attributable to those negligent acts with which defendant is charged. We think the admission of this testimony was not erroneous. [2] Another assignment of error is predicated upon the court's action in passing to the jury testimony of other fires occurring near the time and place of the destruction of the fruit dryer. The testimony giving rise to the objection was recounted by a former employé of the defendant who served in the capacity of fireman. He testified that, "just a while" before the fire in question, other fires were set by the defendant's engine in a field about one mile from the dryer. The witness also stated that the spark arrester was in a similar condition when the two fires occurred. Experience has forged the lesson that negligence of a railroad company can seldom be proved by plaintiff, except by circumstances, and that some reliance must be had upon the inference which can be collected from the fact that other fires had occurred under similar conditions. The theory upon which the admissibility of this evidence is founded is, to enable the jury to determine whether, in view of previous fires having been communicated, the company was, at the time of the fire under consideratión, in the exercise of reasonable care. Testimony of this character has been sanctioned by this court in the cases of Chenoweth v. So. Pac. Co., 53 Or. 111, 99 Pac. 86; Richmond v. McNeill, 31 Or. 342, 49 Pac. 879; Hawley v. Sumpter Railway Co., 49 Or. 509, 90 Pac. 1106, 12 L. R. A. (N. S.) 526; Taffe v. O. R. & N. Co., 60 Or. 177, 117 Pac. 989; Commentaries on the Law of Negligence, Thompson, vol. 2, § 237 et seq.; Smith v. Old Colony & Newport Railroad Co., 10 R. I. 22. [3, 4] Complaint is made by counsel for defendant of the court's refusal to advise the jury to the effect that property owners adjoining the right of way of a railroad company assume the risk of injuries unavoidably produced by fire occurring without any negligence on the part of the company. From the cases cited in support of the instruction, it would seem that counsel have in mind the thought that property adjoining the right of way of a railroad is in a hazardous position, and therefore in more than ordinary danger from mere accidental fires. Whatever may be the exact rule concerning the relative rights of landowners adjoining and of those adjacent to railway tracks, with respect to accidental fires, it cannot be contended that either assumes the risk of the railroad company's negligence. Thompson, in his impressive Commentaries on the Law of Negligence (volume 2, § 2322), says: "The fact that a landowner erects and uses a track is not, in case of its destruction by a. railway fire, imputable to him as contributory posed to fire from the company's engines than negligence, although such building is more exif it were at a greater distance." We think the rejected instruction embraced but a basal principle of the law of negligence, and was fittingly covered by the court in the following instruction: "Gentlemen of the jury, you are hereby instructed that the burden of proof is upon plaintiffs to establish, by a preponderance of the evidence, that the dryer in question was set afire by the negligence of the defendant railroad company. It is not every fire that occurs along the track of a railroad company that such railroad company is liable for, even though property was destroyed by fire set by sparks coming from engines of the company. It is only when there is negligence or carelessness on the part of the company in managing its engines and fires, that there is a liability on the part of the company; and the burden of proof is upon the plaintiff to show by a preponderance of the testimony, not only that the fire was set from sparks coming from the defendant's engine, but the defendant in allowing its engine to get out also that there was negligence on the part of of repair so as to allow the sparks to escape, if you find they did escape, or negligence on the negligent employés, and, if the plaintiff does not part of the company in employing unskillful or establish such negligence by a preponderance of the testimony, your verdict must be for the defendant." [5] In giving the following instruction to the jury, exception is taken: "It is the duty of the railroad company to adopt the most approved mechanical inventions and appliances to prevent the escape of sparks, fire, and cinders, and to exercise reasonable diligence and precaution in equipping engines used by it upon such railroad with such inventions and appliances, and to exercise ordinary care and diligence to keep such appliances in good repair, and when operating said engines to provide skillful and competent help to operate the same." Counsel for defendant argue that this instruction infers that an absolute duty rests on defendant to do no damage to property on account of the escape of fire. Continuing the argument, counsel say: "That if defendant uses ordinary and reasonable care and do 'damage property' it would still be liable under the instruction.' Dependence is had upon the case of Anderson v. Oregon Railroad Company, 45 Or. 211, 77 Pac. 119, wherein Mr. Justice Wolverton said: "The general rule seems to be that the company must adopt the most approved mechanical inventions and appliances to prevent the escape of fire; but that, when it has exercised reasonable diligence and precaution in obtaining and putting them into practical use, it has disthe dangers incident to the escape of fire." charged its duty to those who are subject to This rule of law seems to have been seated in the mind of the trial court while instructing the jury when consideration is given to the whole of the charge. In the third instruction, the court said, in purport, that, if the fire was caused by sparks emitted from a locomotive, a presumption of negligence arises against the defendant as to the equipment of its engine, and, unless that presumption is [Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 1717-1729; Dec. Dig. § 481.*] 3. RAILROADS (§ 459*)-FIRES-CONTRIBUTORY NEGLIGENCE. ed the most approved appliances and inven- | sparks were being emitted is admissible in an tions for the prevention of the escape of fire action for a fire set by the engine. and cinders from the engine, it was the duty of the jury to find for plaintiffs. In another instruction, the court told the jury they should find for plaintiffs if they were satisfied that "sparks, cinders and fire were emitted by reason of the carelessness and negligence of the defendant in failing to use ordinary and reasonable care to have its locomotive in repair, or failing to use ordinary and reasonable care to equip the same with the for arresting most approved appliances sparks, etc." Again, the court spoke to the jury: That a railroad company may relieve itself, on the ground of contributory negligence, of liability for fire set by a locomotive through its negligence, it must show the fire would not have occurred if the owner of the property had taken such precautions as his observation and experience had taught him to be necessary. Cent. Dig. 88 1677-1680, 1684; Dec. Dig. § 459.*] [Ed. Note.-For other cases, see Railroads, 4. NEGLIGENCE (§ 136*)—PROVINCE OF COURT AND JURY. The question of negligence is for the court only when the facts are undisputed, or but one inference can be drawn from the evidence; oth "If you find from the testimony that the defendant railroad company did operate its trains and engines past the dryer, and that at the time had fire in the engine, and that the defend-erwise it is for the jury. ant exercised such right in a careful manner, and with care and circumspection, using the most approved appliances to prevent the escape of fire, and exercised due care and skill in the management of its locomotive, then I instruct you that, even though the fire was caused by the emission of sparks from the engine, there is no liability on the part of the defendant, and your verdict should be for the defendant." [Ed. Note.-For other cases, see Negligence, Cent. Dig. §§ 277-353; Dec. Dig. § 136.*] 5. RAILROADS (§ 484*)-FIRES-CONTRIBUTORY NEGLIGENCE-QUESTION FOR JURY. Evidence, in an action for fire communicated to plaintiff's property from one set by defendant's locomotive, held to make a question for the jury whether the owner of property was guilty of contributory negligence. [Ed. Note.-For other cases, see Railroads, Cent. Dig. 88 1740-1746; Dec. Dig. § 484.*] 6. NEGLIGENCE (§ 136*)-PROXIMATE CAUSEQUESTION FOR JURY. Where the proximate cause is questionable, the case must be submitted to the jury. [Ed. Note. For other cases, see Negligence, Cent. Dig. §§ 277-353; Dec. Dig. § 136.*] 7. RAILROADS (§ 484*) — FIRES PROXIMATE From a study of these instructions we cannot say the court spoke of defendant's duty to provide its engines with the most approved appliances for preventing the escape of sparks as an absolute one. It is true that the first expression of the court, standing by itself, imposes a peremptory and unconditional duty upon defendant to adopt the most approved CAUSE QUESTION FOR JURY. appliances. If this is a vice, it is attributable Whether the negligence of defendant, whereto the manner of expression doubtlessly aris- by sparks from its locomotive set fire to a dryer, ing from the peculiar statement of the gen- was the proximate cause of the burning of plaintiff's barn, a quarter of a mile further, but eral rule in Anderson v. O. R. R. Co., supra. in the same direction, from the railroad, the What the trial court did tell the jury in sub-weather being dry, the wind high, and in the stance and in fact was that a positive and unqualified duty rested upon the railroad company to exercise reasonable diligence and precaution in procuring and in utilizing the most approved mechanical inventions and apparatus to prevent the escape of fire, coals, sparks, or cinders. Other errors are assigned, but we deem them harmless, and therefore we feel it our duty to affirm the judgment of the circuit court. That the locomotive alleged to have set a fire at a certain time is not shown to have had the number alleged to the complaint does not prevent recovery. [Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 1706-1708; Dec. Dig. § 479.*] 2. RAILROADS (§ 481*)-FIRES-EVIDENCE OF OTHER FIRES. direction of the buildings from the railroad, and the fire being communicated from the dryer to the barn by the force of atmospheric agencies, is a question for the jury. [Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 1740-1746; Dec. Dig. § 484.*] 8. CORPORATIONS (§ 518*)-ACTIONS AGAINST -PROVING INCORPORATION. Plaintiff need not prove incorporation of defendant, sued as a corporation; defendant having admitted its being by a counter attack on plaintiff. [Ed. Note.-For other cases, see Corporations, Cent. Dig. §§ 2028, 2086, 2087; Dec. Dig. § 518.*] 9. CORPORATIONS (§ 514*)-ACTIONS-RAISING ISSUE OF INCORPORATION. The issue of incorporation of one suing as a corporation may be raised by denial in the answer; L. O. L. § 6709, requiring the question of a corporation having paid a fee, and so being entitled to do business, to be raised by plea in abatement, having no application. [Ed. Note.-For other cases, see Corporations, Cent. Dig. §§ 2052-2081; Dec. Dig. § 514.*] 10. CORPORATIONS (§ 518*)-ACTIONS-PROVING INCORPORATION. The incorporation of plaintiff, alleged in the complaint, being denied by the answer, is a material averment, which plaintiff must prove. [Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 2028, 2086, 2087; Dec. Dig. § Evidence of other fires seasonably following in the wake of an engine from whose stack 518.*] For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 144 P.-27 11. APPEAL AND ERROR (§ 909*)-REVIEW- the fire. A. Yes, I have noticed some fire flying EVIDENCE-ASSUMPTION OF EXISTENCE. The Supreme Court, when sitting as tryer of fact, is governed by the same rules of evidence controlling below; so that, there being no evidence in the record on the material issue of the incorporation of plaintiff, it cannot be supplied by assuming that it existed, but by accident or neglect was not produced on the trial. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3675; Dec. Dig. § 909.*] In Banc. Appeal from Circuit Court, Union County; J. W. Knowles, Judge. Action by the Hartford Fire Insurance Company and others against the Central Railroad of Oregon. Judgment for plaintiffs, and defendant appeals. Reversed and remanded for new trial. from this engine. Q. Show the jury about how The testifier further added that he had observed other fires originating along the railroad track before and after the fire and shortly after the defendant's railroad engine had passed over its track in the vicinity of the barn. A consideration of the evidence satisfies us that the witness properly identi Geo. T. Cochran, of La Grande (L. Z. Ter-fied the engine emitting the sparks as the rall, of Union, and Cochran & Eberhard, of La Grande, on the brief), for appellant. R. J. Kitchen, of Union. for respondents. one described in plaintiff's complaint. In any event, the defendant's liability will not be softened or absolved, nor the testimony rendered incompetent, if the sparks were emitted MCNARY, J. Having been subrogated to by some engine other than the one particularthe rights of the owner of a barn by reason ized in the pleadings. The question therefore of a contract of insurance, plaintiff brings is whether the proximate cause of the fire this action to recover damages for the de- was due to the manner in which the engine struction of the building caused by an emis- was operated, or the diligence exercised in sion of sparks from an engine operated by de- providing the engine with devices best calcufendant. It is sufficient to say that a verdict lated to prevent the escape of the agencies of for $500 was returned in favor of plaintiff. ignition. The propriety of testimony having The fire occurred on April 11, 1913. The for its office the proof of other fires seasonably property destroyed was a barn located about following in the wake of an engine from one-fourth of a mile north of the defendant's whose stack sparks were being emitted has track. But a measure of time prior to the been before this court and settled in favor burning of the barn, a fruit dryer which of the admission of testimony of that charstood close by the railway track was destroy-acter. Gerome T. La Salle et al. v. Central cited. ed by a fire avowed to have occurred on ac- Railroad of Oregon, 144 Pac. 414, and cases count of sparks escaping through an imperfect spark arrester used by defendant on one of its engines and thence communicated to the barn by the force of atmospheric agencies. Answering, defendant pleaded a general denial and a separate defense alleging matter calculated to charge the owner of the barn with contributory negligence in making no effort to prevent the spread of the fire from the dryer to the barn. [1, 2] In its pleading, plaintiff identified the engine productive of the fire as "No. 12 with cars attached." Upon the investigation of the issues before the jury, plaintiff's witnesses failed to identify the engine with that particularity of detail set forth in the pleading, and for that account error is assigned in the court's refusal to sustain defendant's objection to evidence of other fires having been started by the engine in question. The attack involves the following testimony, given by a witness called by plaintiff: Plaintiff resting, defendant moved the court for an order of nonsuit upon these grounds: (1) That the incorporations of plaintiff and of defendant had not been proved; (2) that the act of the defendant was not the proximate cause of the fire; (3) that plaintiff was guilty of contributory negligence. The court declined to heed the motion; therefore error is assigned. [3-5] Naturally, by this defense, the defendant hopes to fasten upon the insured the consequences of any failure upon his part to observe those precautions which the circumstances surrounding the fire would suggest. Primarily the defendant is liable for its own negligence, and its only exit from liability on the ground of contributory negligence of the sufferer is by showing that the fire would not have occurred if the owner had taken such precautions as his observation and experience had taught him to be necessary. Therefore the insured is liable only for the proper use of his own faculties. Baltimore, etc., R. Co. v. Cumberland, 176 U. S. 232, 20 Sup. Ct. 380, 44 L. Ed. 447; Union Pacific Ry. Co. v. McDonald, 152 U. S. 262, 14 Sup. AlCt. 619, 38 L. Ed. 434; 19 Cyc. 831. "Q. Did you, on this morning of the 11th of April, notice an engine of the Central Railroad of Oregon, as it passed there? A. Yes, I noticed them pass. Q. I will ask you to state if you noticed the size of the cinders or coals that were emitted from this engine. A. Do you mean this particular morning? Q. Well, that morning, or any morning we will say, within 60 days previous to the fire or 60 days after most universally the courts have held that the question of negligence is one of fact and The "The weather was very dry and the wind high, and, as plaintiff's witnesses contend, was blowing directly from defendant's engine toward plaintiff's buildings. A jury might well conclude that under such circumstances it was the duty of the defendant's servants to observe such surroundings." [8-10] Lastly, the motion for an order of nonsuit is placed upon the ground that the incorporation of the parties litigant has not It is a strain upon legal sobeen proved. briety for defendant, upon the one hand, to assume its existence for the purpose of thwarting the action, and, on the other, to Cerdeny its existence when being sued. tainly defendant has no legal right to assume its entity for one purpose and deny it for another, and having admitted its being by a counter attack upon plaintiff rendered it unnecessary for plaintiff to offer proof of defendant's incorporation. A serious question does arise with respect to plaintiff's failure to prove its corporate existence when denied by defendant, for thereby that issue became one of the essential elements in the case. Counsel for plaintiff argues that defendant cannot be heard to grieve because the matter was not raised by a plea in abatement. Hirschfeld v. McCullagh, 64 Or. 506, 507, 508, 516, 127 Pac. 541, 130 Pac. 1131; Big Basin Lumber Co. v. Crater Lake Co., 63 Or. 360, 362, 363, 127 Pac. 982; Callender Navigation These cases are not applicable to the circumCo. v. Pomeroy, 61 Or. 343, 122 Pac. 758. stances here involved, for the question here directly in issue concerns the incorporation or existence of plaintiff, and not its legal right to transact business. When the latter element is contested, then by force of section 6709, L. O. L., it is necessary for defendant to raise the question by a plea in abatement. The circumstances here disclosed fall under the doctrine announced by Mr. Chief Justice Moore in Goodale Lumber Co. v. Shaw, 41 Or. 544, 69 Pac. 548, wherein the learned justice said: [6, 7] Was the act of the defendant the proximate cause of the fire? Counsel for defendant says, "No." With assurance it may be said the evidence shows that on the day of the fire a robust south wind was blowing across the railroad track in the direction of the prune dryer and the barn, which was located about a quarter of a mile distant therefrom; that the weather was exceedingly dry and had been for a period of time; and that nothing interposed between the dryer and the barn to prevent sparks and flames of fire from being carried from the burning dryer to the barn. Counsel argues that the distance between the dryer and the barn "was certainly far enough, so that as a matter of law the court can say that the damages caused by the burning of the barn were too remote"; and that the setting of fire to the dryer by sparks from the engine was not the proximate cause of the burning of the barn. We think this proposition merits but our brief attention. Well settled is the doctrine that a wrongdoer is liable for the injury which resulted as the natural and probable consequence of his wrongful act of which he should have foreseen in the ray of the surrounding circumstances. Many times this court has said that, where the proximate cause is questionable, the case must be submitted to the jury. Manning v. Portland Shipbuilding Co., 52 Or. 101, 96 Pac. 545; Elliff v. O. R. & N. Co., 53 Or. 66, 99 Pac. 76; Palmer v. Portland Ry. L. & P. Co., 56 Or. 262, 108 Pac. 211; Gynther v. Brown & McCabe, 67 Or. 318, 134 Pac. 1186. From the evidence given by the witnesses, it was the province of the jury to determine whether there was an unbroken connection between This situation again invites our considerathe wrongful act of defendant and injuries tion of article 7, § 3, of the Constitution, sustained by the insured. The same condi- Laws of 1911, p. 7: tion surrounded the case. of Taffe v. O. R. & N. Co., 60 Or. 182, 117 Pac. 990, and prompted Mr. Justice McBride to say: "The complaint having alleged that plaintiff is a corporation organized and existing by virtue of the laws of the state of Oregon, and this averment being denied in the answer, the burden was imposed upon it to prove the fact thus in issue. The neglect to show that one-half of the capital stock had been taken, or a board of directors elected, was a failure to prove that plaintiff had ever been organized as a de jure corporation; and, as it could transact no busiin that capacity until thus constituted (Holladay v. Elliott, 8 Or. 84), there was an omission to prove a material averment of the complaint." ness [11] This question is asked: Can the appellate court make final disposition of the case, thus avoiding the annoyance and exWe should like to do so. pense of a retrial. "In actions at law, where the value in controversy shall exceed $20.00, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of this state, unless the court can affirmatively say there was no evidence to support the verdict." but includes any person who has succeeded to the rights of defendant by purchase or descent, or by operation of law. [Ed. Note. For other cases, see Judgment, Cent. Dig. § 253; Dec. Dig. § 142.* First and Second Series, Representative.] TION-NECESSITY OF MAILING COPY OF SUM- Under L. O. L. § 56, providing that when ant after due diligence cannot be found within personal service cannot be made, and defendthe state, and that fact appears by affidavit, the court shall grant an order for service by publication, and section 57, providing that on publication the court shall direct a copy of the summons and complaint to be deposited in the post office directed to defendant at his place of tained, where an affidavit for service by publicaand cannot with reasonable diligence be ascertion showed that the residence of defendants was unknown and could not be ascertained by reasonable diligence, and that they had never maintained a residence within the state, the court acquired jurisdiction by publication without a copy of the summons and complaint being mailed to defendants. [Ed. Note.-For other cases, see Process, Cent. Dig. 135; Dec. Dig. § 108.*] This constitutional provision has been construed by this court in several cases. Knight v. Beyers, 134 Pac. 787; Wasiljeff v. Hawley Paper Co., 68 Or. 487, 137 Pac. 755; Woods v. Wikstrom, 67 Or. 581, 135 Pac. 192; Sigel v. Portland Ry. L. & P. Co., 67 Or. 285, 135 Pac. 866; Sullivan v. Wakefield, 65 Or. 528, 133 Pac. 641; Forrest v. Portland Ry. L. & P. Co., 64 Or. 240, 129 Pac. 1048; State v. Rader, 62 Or. 37, 124 Pac. 195. Indubitably, under this provision of the Constitution, it is within the power of this tribunal to disregard errors occurring upon the trial and retry the case upon the evidence accompany-residence, unless such residence is not known ing the bill of exceptions, and, in the event it appears from the evidence embraced therein that the judgment rendered was such in kind and character as should have been ren dered in any event, we are authorized to affirm the judgment or modify it in such particulars as the evidence would deem to warrant. However, when sitting as triers of fact, the court must be governed by the same rules of evidence that control the trial of the 3. PROCESS (§ 96*)-SERVICE BY PUBLICATION -AFFIDAVIT-SUFFICIENCY. case before the jury sitting in the trial court, An affidavit upon which an order for servand, if the record is barren of evidence up- ice of process by publication is based must on some material issue formed by the plead-state the probative facts, and not merely the ings, we cannot supply the hiatus by assum-conclusion that defendant cannot be found within the state, or that his residence cannot be asing that such evidence exists, but by acci- certained by the exercise of reasonable diligence. dent or negligence was not produced upon [Ed. Note.-For other cases, see Process, Cent. the trial, and inasmuch as plaintiff here as- Dig. §§ 108-120; Dec. Dig. § 96.*] serts, and defendant here denies, the corpo- 4. APPEAL AND ERROR (§ 939*)-PRESUMPrate existence of plaintiff, and no evidence TIONS IN SUPPORT OF JUDGMENT. was offered touching the issue, we cannot indulge the omission, however much we may feel inclined to do so, and for that reason alone the case must be reversed. The appeal presents other assignments of error with respect to certain instructions given and withheld by the court, but on account of this case growing out of the same fire forming the foundation of the action in the case of La Salle et al. v. Central Railroad of Oregon, supra, the several assignments fall within the decision of that case and will not be retouched. Reversed and remanded for a new trial. (73 Or. 83) plication to vacate a decree rendered on service On appeal from an order denying an apby publication and to permit the applicant to be substituted as defendant with permission to answer, where the abstract of record on appeal did not show the contents of the order for service by publication, it would be assumed that it embraced in form and context the affidavit for publication, which was sufficient to justify an order for service by publication without mailing a copy of the summons and complaint. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 3804-3806; Dec. Dig. § 939.*] 5. APPEARANCE (§§ 24, 25*)-SERVICE OF PROCESS-DEFECTS-WAIVEb. While a defendant may appear specially to object to the jurisdiction, or to set aside a judgment for want of proper service of process, without submitting himself to the jurisdiction for any other purpose, where the chief purpose FELTS v. BOYER et ux. of a motion was not to vacate a decree rendered on service by publication on jurisdictional (Supreme Court of Oregon. Nov. 10, 1914.) grounds, but to obtain permission to defend by filing an answer, the motion constituted a waiv1. JUDGMENT (§ 142*) OPENING DEFAULT er of all irregularities in the service of process, JUDGMENT RIGHT TO DEFEND AFTER JUDG- and the applicant submitted himself to the juMENT ON SERVICE BY PUBLICATION-REP-risdiction as completely as if regularly served RESENTATIVE.' In a suit to quiet title, a purchaser from defendants, after the entry of judgment by default on service by publication, was entitled to the benefits of L. O. L. § 59, providing that the defendant against whom publication is ordered, or his representatives, may, upon good cause shown, be allowed to defend within one year after the entry of judgment, as "representatives" is not intended to designate only the executor or administrator of a deceased person, with process. Cent. Dig. 88 118-143, 144-153; Dec. Dig. $$ 6. JUDGMENT (§ 142*) OPENING DEFAULT Under L. O. L. § 59, providing that a defendant against whom publication is ordered, |