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er errors are assigned, but they relate to matters that will not ociur on a retrial.
For the errors above discussed, the juigment is reversed, and a new trial orilered.
MOUNT, C. J., and FULLERTOX, HADLEY, and CROW, JJ., concur.
DUNBAR and ROOT, JJ., not sitting.
(44 Wash. 623)
ILAJIMOCK v. CITY OF TACOMA. (Supreme Court of Washington. Dec. 3, 1906.) 1. MIL'NICIPAL CORPORATIONS DEFECTIVE SIDEWALKS-TRAVELERS--CARE REQUIRED.
A person having a lawful right to travel on a sidewalk is entitled to assume that the walk is in ordinary repair, and that there is no latent defect which may cause injury.
[Ed. Note:-For cases in point, see Ceut. Dig. vol. 36, Municipal Corporations, $s 1673, 1678.] 2. SAME-COXTRIBUTORY NEGLIGENCE.
A traveler on a sidewalk is guilty of contributory negligence only wher lie is injured by some patent defert which he could have avoidad by the exercise of ordinary care, or by some defect he knows exists in the waik, whether latent or patent, which he did not take care to avoid.
[Ed. Note.--For cases in point, see ('ent. Dig. vol. 36, Municipal Corporations, $$ 1073, 1077, 1678.] 3. SAME-DUTY OF CITY.
A municipal corporation is bound to keep its sidewalks in ordinary repair, and to examine not only the surface, but the supports of the walks, wlienever it has reasonable cause to believe that the supports are becoming defective.
[Ed. Note. For cases in point, see Cent. Dig. vol. 36, Municipal Corporations, § 1612.) 4. SAME-NOTICE OF DEFECTS.
Where a city sidewalk had been constructed for a number of years, and for more than a year had been out of repair and unsafe in places on each side and near to the place where plaintiff was injured thereon, such facts were sufficient to charge the city with notice of the condition of the walk at the place of the accident.
[Ed. Note-For cases in point, see Cent. Dig: vol. 36, Municipal Corporations, SS 1617-1619.] 5. TRIAL INSTRUCTIONS FORM AND REQUISITES'.
It is not necessary that each paragraph of the court's charge should contain the limitations and modifications of general legal rules announced therein, the necessary qualifications having been properly given in other instructions.
[Ed. Note-For cases in point, see Cent. Dig. vol. 40, Trial, $$ 70+711.] (. MUNICIPAL CORPORATIONS DEFECTIVE SIDEWALKS-ACTION-EVIDENCE.
Where, in an action for injuries on defective sidewalk, there was evidence that the walk was old and has been defective on both sides of the place of the accident for inore than a year, evidence as to the extent of the sidewalks within the city and under its control, was inadmissible.
[Ed. Note.--For cases in point, see Cent. Dig. vol. 36, Municipal Corporations. $$ 1727-1729, 1613.] 7. APPEAL-FORMER DECISIONS--LAW OF THE Case.
Where, on a prior appeal, it was held that a notice to a city of an injury on a defective sidewalk was sufliciently delinite in its descrip
tion of the place of the accident, such decision constituted the law of the case on retrial.
[Ed. Note. For cases in point, see (ent. Dig. vol. 3, Appeal and Error, $ 4661.) 8. TRIAL-ARGUMENT OF COUNSEL VISCONDU(T.
Plaintiff was injured on a defective ity sidewalk, and two witnesses testified that plaintiff's daughter pointed out the pl.ice of the injury to plaintiir's attorney in Juneor July, 19904, and located it at a different place than that specified in the notice and complaint. The daughter in rebuttal denied that she was ever on the walk with plaintill's attorney, prior to March, 1990.7. Plaintiff's attorney in argument, stated that as to his being there, the witnesses were mistaken, that he was not on the ground until February, 190.3. II clil, that the attorney's statement of fact was justified by the evidence, and was not reversible error, because he stated the conclusion from the evidence in diret language.
[Ed. Yote.--For cases in point. see Cent. Dig. vol. 46, Trial, $ 291.] 9. APPEAL-MISCONDUCT OF COUXSEL-GROUND For REVERSAL.
D»fendant's attorney commented on the alısence of the husband of plaintiff's daughter and plaintiff's son, who were witnesses to certain transactions connected with plaintiff's injury, and who had not testified. In reply plaintiff's counsel stated that they were poor people, and that since the action was commenced, they had obtained lucrative positions with defendant city and had asked him not to call them unless it was necessary. IIeld, that such argument, though error, was not ground for reversal, where it apparently in no way affected the result.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 4135.]
Appeal from Superior Court, Pierce County; Thad Iluston, Judge.
Action by Amanda Hammock against the city of Tacoma. From a judgment for plaintiff, defendant appeals. Affirmed.
See 82 Pac. 893.
C. M. Riddell, R. E. Evans, and J. W. Quick, for appellant. Govnor Teats, for respondent.
FULLERTOX, J. The respondent brought this action to recover for personal injuries. In her complaint she alleged that on June 12, 1904, while she was walking along one of the sidewalks in the appellant city in the company of her daughter, the daughter stepped upon a broken board in the walk, or a board which broke under her weight, causing one end of it to raise up; and that she tripped over the raised end of the board and fell to the walk, which fall caused the injuries of which she complains. The city took issue upon the allegation of the complaint, and a trial was had, which resulted in a verdict and judgment in her favor. The city appeals.
The first contention on the part of the appellant is that the evidence was insutficient to justify the verdict; the precise objection being that there was no evidence tending to show that the city had knowledge prior to the accident, either actual or constructive, of the particular defect that caused the injury. The evidence relied upon by
the respondent to show notice on the part | On the contrary, proof that the wolk had of the city was the testimony of certain wit- / been constructed for a number of years. nesses who resided in the vicinity of the and that it had been for more than a year place of the accident. These witnesses tes- out of repair and unsafe in places on each tified that the walk in front of the block side of an near to the place of the accident. where the accident occurred had been down was proof suficient to charge the city with for a number of years, and been out of repair notice of the condition of the walk at the for more than a year prior to the acident: place of the accident; and being harged that the stringers supporting the walk were with such notice, its failure to repair it, or decayed, and in some places entirely gone; warn against its use, was such negligence as that the ends of the boards forming the walk would render it liable to any one injured by were in many places rotted off, leaving them reason of its defective condition who was loose so that they would give way at one not himself guilty of negligence which conend and tilt at the other; and, generally, tributed to the injury. that the walk was unsafe to travel upon. It is next assigned that certain instrucXone of them, however, were able to testify | tions given by the court stated the law too that they had noticed the condition of the broadly, inasmuch as they authorized the Walk at the precise place of the injury, jury to find for the respondent, even though and the respondent testified, and the jury | they might not find certain other conditions found that the defect at that place was not necessary to render the city liable. The so apparent as to be observed by the exercise | particular paragraphs of the charge pointed of ordinary care and caution. It is on this out might be subject to the (riticism made testimony and finding that the appellant on them were they not qualified by the furbases its contention. It argues that notice ther instructions of the court. But we find of defects in the immediate vicinity of a they were so qualified. In an instruction particular place is not notice of defects at given almost immediately following the inthat place; and that if the defect causing struction complained of, the court stated the injury was not observable to the respond the limitation on the city's liability in alent by the exercise of ordinary care and most the very language counsel insist it caution, it could not be observable to the should have been stated. This was enough. (ity officers by the exercise of the same care, It is not necessary that each paragraph of and hence the city could not be chargeable the court's charge contain the limitations with constructive notice under the testimony. and modifications of the general rules anBut the fallacy of this reasoning lies innounced. To do so usually leads to prolixits the assumption that the degree of care is which tends rather to confuse the jury thali the same in each instance. A person having
A person having to enlighten them. a lawful right to travel upon a sidewalk has It is next complained that the court erred the right to assume that the walk is in or- in refusing to permit the assistant city endinary good repair, and that there is no gineer to testify to the extent of the side latent defect which may cause an injury. | walks within the city of Tacoma under its He is guilty of contributory negligence, there- | control. But we think there was no error in: fore, only where he is injured by some patent this ruling. In cases where the defect caus defect which he could have observed and ing the injury is of recent origin and it is avoided by the exercise of ordinary care, sought to charge the municipality liable for or by some defect he knows exists in the the defect with constructive notice, it has walk whether latent or patent which he did sometimes been held that it was proper to not take ordinary care to avoid. But with show the length of the walks under the conthe city it is different. It is charged with trol and supervision of the municipality for the duty of keeping its walks in ordinary the purpose of showing whether the municrepair. It must take notice that time and ipality ought, in the exercise of reasonables use will destroy sidewalks no matter how (liligence, to have discovered and remedies carefully constructed, or how safe and se- the defect in the limited time elapsing becure they may have been when originally tween the origin of the defect and the injury, constructed. It must, not only examine the but such a showing could not have enlightensurface, but the supports, of the walks when- ed the jury in this case. The contest here ever it has reasonable cause, to believe that was over the question whether in fact any dethese supports are getting out of repair. fect existed at all. If the respondent's witIn a word, it must exercise that degree of nesses were to be believed it stooil is a mat. care that common sense declares to be neces. ter of law that the (ity officers were neylisary in order to keep its walks reasonably gent, while on the other hand if the city's safe for ordinary use. Tested by these rules, witnesses were to be believe there was no it is apparent that the respondent did not liability in any event. In such a tase erihave to prove, in order to charge the city dence that the length of the sidewalks was with notice, that the particular plank that great or little, could not affert the case one caused her injury was so obviously defective way or the other. that it could have been discovered by the It is next insisted that the notice of the mere observation that a traveler along the injury given the city was not suifiiently lefwalk is required to exercise to avoid injury. I inite in its description of the plu:“ of the
visited on the respondent. Jurors are generally men of intelligence, and usually distinguish clearly between facts that are matters of evidence, and facts stated by counsel in the course of the argument, and we do not think they were misled in this instance. The court, however, does not wish to be understood as sanctioning this line of argument. Ve recognize it as error, but refuse to reverse the case, because we do not think in this instance it in any way affected the result of the trial.
The judgment appealed from is affirmed.
MOUNT, C. J., and HADLEY, RUDKIN, and DUNBAR, JJ., concur. ROOT and CROW, JJ., not sitting.
accident. But this is the very question, and the only question, decided by this court when the case was before it on the former appeal. Ilammock v. Tacoma, 40 Wash. 539, 82 Pac. 893. The decision at that time holding the notice sufficient became the "law of the case," and the court cannot now properly review it whether right or wrong. Wilkes v. Davies, 8 Wash. 112, 35 Pac. 611, 23 L. R. A. 103; Furth v. Snell, 13 Wash. 660, 43 Pac. 935.
On the trial the appellant introduced two witnesses for the purpose of showing that the (laughter of the plaintiff, in pointing out the place of injury to her attorney, located the place in front of a block some distance from the place it was claimed in the notice and complaint that the accident occurred. In rebuttal of this, the daughter was recalled, and testified that she was not at the place mentioned with the respondent's attorney at the time the appellant's witnesses testified they saw them there; testifying further in that connection that she was there with the attorney for the first time just preceding the former trial, which occurred in March, 1905, while the appellant's witnesses testified that they saw her there in the month of June or July in the year before. On the argument commenting on this evidence the attorney said: "As to myself being out there, I wish to state simply that the witnesses are mistaken. Their identification is off. I never was on that ground until February, 1905." This statement was objected to on the ground that it was making use of facts within the piersonal knowledge of the attorney, not justitied by the evidence. But plainly the attorney stated nothing the evidence did not justify. He might have made the statement less personal by using the phrase, "The evidence shows," or one of a similar nature, but because he stated the conclusion in direct language is not cause for reversing the judgment. In the course of the trial it was shown that a Mr. Bradshaw, the husband of the respondent's daughter, and a Mr. Williams, a son of the respondent, were witnesst's to certain transactions connected with the l'espondent's injury. They were not called is witnesses, and this fact was commented on by the city's attorneys in their argument to the jury. In reply thereto the respondent's attorney used this language: "I knew when counsel came to argue this cause they would say where is Bradshaw, the husband of Mrs. Bradshaw, and where is the son of Mrs. Hammock. I will tell you where. These people are poor, they look like it. Since they commenced this action they have got lucrative positions in the city of Tacoma and they asked me that if it was not necessary to corroborate the testimony of their mother and sister, not to call them because of their positions, and I did not do so. That is where they are.” It is said that this exceeded the line of legitimate argument and requires a reversal of the case. We do not think, however, that such an extreme penalty should be
(44 Wash. 586) CARR et al. V. COIN. (Supreme Court of Washington. Dec. 7, 1906.) QUIETING TITLE-PARTIES-TRUSTEE OF ExPRESS TRUST.
Under Ballinger's Ann. Codes & St. $ 4825, providing that a trustee of an express trust may sue without joining the person for whose benefit suit is prosecuted, one to whom property has been deeded without consideration and merely to hold title for the grantors and to convey as they might direct, is a proper person to bring an action to quiet title against an assignee of a satisfied mortgage on such property, executed by such grantors prior to the execution of the deed.
[Ed. Note.--For cases in point, see Cent. Dig. vol. 41, Quieting Title, $ 64.]
Appeal from Superior Court, King County; Arthur E. Griffin, Judge.
Action by Geneva Carr and another against Paula Cohn. From a judgment in favor of plaintiffs, defendant appeals. Affirmed.
Richard Saxe Jones, for appellant. Crary & Ogden and J. B. Alexander, for respondents.
ROOT, J. This is an action brought by respondents to quiet title to certain land in King county. From a judgment in their fayor, this appeal is prosecuted.
The material facts are about as follows: The land in question was owned by one Thomas H. Clancy and wife. They made a deed of the same, without consideration, to respondent Geneva L. Carr, a sister of said Clancy. Said respondent was to merely hold the title to the property for the benefit of Clancy and wife, and convey the same to whomsoever they might direct. Before this conveyance, Clancy and wife had executed a mortgage to one Grunbaum, who received the same as secretary of the Northern Liquor Company. This mortgage was to secure $1,287 due said liquor company, and $300 due to said Grunbaum. The mortgage was duly recorded in the office of the county auditor. Thereafter some negotiations were had with appellant relative to assigning said note and mortgage to her as security for a
FALK V. A. F. SCHMITZ ALASKA DREDGING & MINING CO.
loan to the Northern Liquor Company of out joining the person for whose benefit the $1,500. She claims that she had theretofore suit is prosecuted. A trustee of an express made such a loan and advanced the money trust within the meaning of this section, to the president of the company, one Rosen- shall be construed to include a person with thal, who was her brother-in-law. Rosen- whom, or in whose name, a contract is made thal testifies that he received said money for the benefit of another." We think that such officer of the company, and that the these respondents were trustees of and for same was used for its use and benefit. Grun- Clancy and wife within the meaning of this baum, the secretary, and one Quient, a book statute, and are consequently authorized to keeper of the liquor company, both denied maintain an action of this character. this in their testimony. A written assign- A question as to the sufficiency and effect ment was made of the mortgage to appel- of the recording and indexing of said aslant, and this assignment was filed for record signment of mortgage is presented, together in the office of the county auditor, at the re- with other questions, but, in view of our quest of Quient for Rosenthal, but instead conclusion upon the question of the making of being indexed in the name of Grunbaum, of a loan, it becomes unnecessary to pass it appeared in the index as "Greenbaum,” | upon these questions. From the foregoing and, by reason of the arrangement of said in-statement, it will be observed that the quesdices, the name occurred on a different page tion of first importance is as to whether apfrom where it would have appeared had it pellant made the loan as she claims. Upon been indexed correctly. The note was in- this issue the evidence is flatly and irrecondorsed by Grunbaum, but the indorsement cilably conflicting, and mostly very unsatwas subsequently erased. Appellant claims isfactory on both sides. The trial court that the note and mortgage and assignment found that appellant never made any loan. thereof were delivered to Rosenthal to be There is sufficient evidence, if believed, to kept for her, and that the same, in some man- support this finding. There is sufficient eviner unknown to her, found their way into dence, if believed, to support appellant's the hands of Grunbaum. The latter and contention. It is a question of credibility Quient say that the negotiations for the loan of witnesses. We are not in as good a were never consummated; that the assign- position as the trial court to judge of this. ment was made out and executed, but was After a careful examination and consideranot intended to be effective until the money tion of all of the evidence, we are unable was received, at which time the assignment, to say that the trial court reached an erronote, and mortgage were all to be delivered; neous conclusion, or to satisfactorily arrive that, never having received the money, the at one different. This being true, it follows liquor company never delivered the note and that the judgment and decree of that court mortgage, and did not know that the as- should be atfirmed, and it is so ordered. signment of mortgage had been delivered. Grunbaum swears that he kept the note in
MOUNT, C. J., and RUDKIN, FULLERhis possession always, with the exception TON, HADLEY, DUNBAR, and CROW, JJ., of a short time when he was sick and Quient
concur. held it. After all these transactions Clancy and wife paid the amount due upon the note and mortgage to Grunbaum, and the latter
(44 Wash. 612) acknowledged satisfaction, and had the
FALK v. A. F. SCHMITZ ALASKA DREDAmortgage canceled of record. In the mean
ING & MINING CO. time the liquor company had gone into the hands of a trustee, Grunbaum being such
(Supreme Court of Washington. Dec. 8, 1906.) trustee. Clancy and wife claimed that they CORPORATIONS — STOCKHOLDERS – FORFEITURE knew nothing about appellant having loaned
S. subscribed for the entire capital stock any money, nor about an assignment of the
of defendant corporation. He placed 100,000 note or mortgage, or of the latter being of shares in the treasury for sale for development record; and it is urged by respondents here- purposesand immediately transferred 80,000 in that, by reason of the incorrect indexing
shares to plaintiff, whereupon a certificate for
such amount was issued to plaintiff by the corof the assignment of mortgage, the record
poration. Plaintiff receipted for the certificate, thereof was no notice whatever to said mort- and immediately turned it over to the treasurer gagors, or to any one, of the existence of of the company under a pooling agreement be
tween the stockholders. Held, that the corporasaid assignment.
tion was not entitled to forfeit plaintiff's stock At the threshold of the case appellant in- for plaintiff's alleged breach of an agreement sists that this action cannot be maintained to pay the corporation a certain sum for the by respondents, for the reason that they are
stock, whether such agreement was made with
the corporation or with S. personally. not the real parties in interest. We think this contention cannot be upheld. Section Appeal from Superior Court, King County; 4827, Ballinger's Ann. Codes & St., is as fol- Arthur E. Griffin, Judge. lows: "An executor or administrator or Action by Frederick Falk against the A. guardian of a minor or a person of unsound F. Schmitz Alaska Dredging & Mining Commind, and a trustee of an express trust, or pany. From a judgment for plaintiff, dea person authorized by statute, may sue with | fendant appeals. Affirmed.
Fred Page-Tustin and Arthur & Hutchinson, for appellant. IIenry S. Noon and James E. Bradford, for respondent.
It is conceded, and must be conceded, that Schmitz subscribed for and became the unqualified owner of the entire capital stock of the company. He assigned 80.000 shares of this stock to the respondent who received a certificate therefor. The title of Schmitz is not questioned, but it is claimed that the respondent failed to comply with some collateral agreement to sell the treasury stock or furnish money from his own funds to meet certain obligations of the company. Let us concede this to be true. If such agreement was made with the company, it coulii not forfeit the stock for a mere breach of this contract. If, on the other hand, the agreement was with Schmitz (which seems to be the case), the company could not forfeit the stock of one stockholder because of his failure to fulfill his agreement with another. The entire defense is built upon the theory that the stock certificate in controversy was never delivered to the respondent, and that a (ertain sum of money was to be paid before such delivery. But the records of the appellant corporation, and all the testimony, show the contrary. The respondent was therefore the owner of the stock, regardless of any agree ment he may have made with the corpora. tion, its promoters, or stockholders; and the remedy for the violation of any such agreement was not by a forfeiture of the stock.
The action of the board of trustees was without warrant or authority of law, and the judgment of the court below is accordingly affirmed.
RUDKIX, J. Articles of incorporation of the A. F. Schmitz Alaska Dredging & Mining ('ompany were filed in the office of the Secretary of State on the 11th day of July, 1903. On the 7th day of August, 1903, one A. F. Schmitz subscribed for the entire capital stock of the company, divided into 500,000 shares, of the par value of $1 each, and agreed to pay therefor by transferring to the company his interest in certain mining claims and a dredging contract, and placing 100,000 shares of the stock in the treasury of the company, to be disposed of to raise funds to carry on the business of the company. At the first meeting of the trustees of the company held on the following day a resolution was adopted, reciting the stork subscription, as above set forth, and accepting the Same, and the president and secretary were authorized and directed to issue the entire capital stock to Schmitz as fully paid up, and to receive from him the 100,0%) shares in the nume of the treasurer, to be disposed of under such regulations as the trustees might ililopt. At the same time a certificate for the 500.000 shares was regularly issued to Nihmitz, who receipted for the same, and immeiliately assignedl 100.000 shares thereof to the treasurer of the company as per the subScription agreement; 80,000 shares to one B. B. Jaun; S0,000 to the plaintiff, Falk, and 1.50.000 shares to himself as trustee. A certificate for the 80,000 shares thus assigned to the plaintiff was thereupon issued to him. Ile immediately receipted the secretary for the certificate, and turned it over to the treasurer of the company under the following provision of the by-laws: "The company will not recognize or accept any orders for stock issued by any member of the company, ilgainst any stock pooled by said members, and none of the pooled stock shall be released until the treasury stock is all sold or the company becomes a dividend payer," taking his receipt therefor. Soon after this the plaintiff went to Europe, and did not return to Seattle until the month of September, 1904. In the meantime, a new board of trustees, appointed by Schmitz, met, adopted a resolution, reciting that the plaintiff had agreed to pay the company a certain unnamed sum of money for the 80,000 shares of promotion stock, and that he had not paid the same, and ordered the cancellation of the stock certificate theretofore issued to the plaintiff. This action was brought to vacate and set aside the resolution canceling the stock certificate, and to compel the proper officers of the company to reissue the stock to the plaintiff. The court below found in favor of the plaintiff and the defendant appeals.
Many important questions of corporation law are discussed in the briefs, but there is little room for their application in this case.
MOUNT, C. J., and ROOT, DUNBAR, and CROW, JJ., concur.
FULLERTON and HADLEY, JJ., not sitting.
(44 Wash. 596) JUMP v. VORTH BRITISII & MERCANTILE INS. CO. OF LONDON AND
EDINBURGII. (Supreme Court of Washington. Dec. 7, 1906.) 1. MORTGAGES--XATIRE--EFFECT.
A mortgage is a mere lien ar security for the payment of money, and does not convey any title to the mortgagee.
(Ed. Note.-For cases in point, see Cent. Dig. vol. 35, Mortgages, $S 270, 273.) 2. INSURANCE-TRANSFER OF INTEREST-CONVEYANCE AND MORTGAGE.
Where insured conveyed the property to another and took a mortgage back to secure the price, such transaction constituted a change of interest which avoided the policy, providing that it should be void if any change other than by death of the assured should take place in the interest, title, or possession of the subject of insurance without the consent of the insurer.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 28, Insurance, SS 803, 804.
Appeal from Superior Court, Snohomish County; W. W. Blick, Judge.
Action by John A. Jump against the North British & Mercantile Insurance Company of