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ther end of the car desired to be brought into failed to show any negligence on the part position, anil bringing it into place by a pull of the appellant; and, second, that he had on the cable from the donkey engine. At the erred in excluding certain evidence offered time of the accident the men had for loading by the respondent, and, as these propositions a group of five cars. Four of these had been involve matters of law in which the question loaded, and preparations were made for of discretion does not enter, they are reviewbringing the fifth one into place. The track able on appeal to this court. at this point was somewhat steep, and the On the question of the sufficiency of the cars were held in place by their brakes, which evidence, the appellant contends that the rehad to be loosened before the cars could be spondent has shown nothing more than that moved. Preparatory to loosening the brakes, the cable broke and that he was injured the cable was hitched to the lower end of thereby, and argues that this is not suffithe empty car and made tight by a pull from cient to charge the respondent with neglithe donkey engine. The respondent then gence; that, in order to make a prima facie mounted the cars, and proceeded to loosen the case, he was required to go further, and show brakes with a short piece of gas pipe which that the breaking was caused by some dehe used as a lever. He was just loosening fect of construction or material; and that the last one when a pull was made in an at- the respondent knew or by reasonable dilitempt to move the cars. This pull caused gence could have known of such defect. But one of the stay cables fastened to the gin it seems to us that the appellant has placed pole to give way, letting the pole fall. In a too narrow construction upon the respondfalling the pole struck the respondent on the ent's evidence. The evidence, in addition to back, bearing him down upon the piece of showing that the cable broke and caused an gas pipe which he happened to be holding in injury to the respondent, showed that it was an upright position, forcing the pipe entirely furnished to the respondent by the appellant through his body, and causing the injury for for a particular purpose, and that it broke which he sues. It appears from the record while being used in a proper manner for the also that the appliances described were fur- purpose for which it was intended. This is nished by the appellant; that they were being some evidence of negligence on the part of used at the time of the accident for the pur- the appellant. Instrumentalities intended for poses for which they were intended, and were a particular purpose, and suitable and proper so used under the direction of the appellant's for that purpose, do not break when put to foreman.

the use for which they are designed when In his complaint the respondent charged used in a proper manner. So the converse of that the accident was caused by the defective this proposition must be true. If the instruand dangerous condition of the stay cable mentality does break when put to the use for which gave way and let the gin pole fall, al- which it is designed and used in a proper leging that it was carelessly and negligently manner, it is evident that it was either defastened to the gin pole, and had become old, fective in material or construction in the worn, weakened, and rusted and in need of first instance, or has become so since it was repair, all of which was known to the appel- | put to use. Therefore, when the servant lant, or by reasonable diligence ought to have shows that the master furnished him an inbeen known by it, but which was unknown strumentality to be used for a particular purto the respondent; further alleging that "by pose, that he used it for the purpose intended reason of the negligence of the defendant in in the manner intended, and that it broke failing to provide the plaintiff with a safe when being so used and injured him, he place in which to work, and by reason of the makes out a prima facie case of negligence negligence of the defendant in failing to pro- against the master. Coleman v. Mechanics' vide a sufficient and suitable guy rope or Iron Foundry Co., 168 Abass. 234, 46 X. E. cable to sustain the gin pole and perform the 1065; Moynihan v. Hills Company, 146 Mass. service required of the same, and by reason 586, 16 V. E. 574, 4 Am. St. Rep. 318; Tenof the negligence of the defendant in failing nessee Coal, Iron & Railroad Co. v. Hayes, to properly secure the said guy rope or ca- 97 Ala. 201, 12 South. 98; Armour v. Golble," the gin pole fell, etc. The only evidence kowska, 95 Ill. App. 492; Solarz v. Manhatoffered at the trial in support of these alle- tan Railway Co., 31 Abb. X. C. (X. Y.) gations was that above outlined, and the fur- 426, 29 N. Y. Supp. 1123; Highland Boy ther fact that the cable gave way at the Gold Min. Co. v. Pouch, 121 Fed. 148, 61 point where it was spliced to the gin pole,

C. C. A. 40; Cincinnati, I., St. L. & C. Co. three of the strands of the splice breaking, v. Roesch, 26 V. E. 171, 126 Ind. 1.). and three pulling out. On the trial at the With reference to the second question, we conclusion of the respondent's case, the court

think the evidence offered was properly exgranted a nonsuit and discharged the jury, cluded under the issues as made. The alleand later, on respondent's motion for a new gation to the effect that the appellant failed trial, set the norsuit aside and granted a to provide the respondent with a safe place new trial. This appeal is from the last- in which to work was rather a deduction mentioned order. The trial judge based its from the specific acts of negligence thereturuling on two grounds: First, that he had fore alleged than a general allegation of negcrred in holding that the respondent had ligence. As such it did not widen the scope

91 P. 36

of the inquiry so as to admit evidence of neg- be canceled and set aside, and that she be ligence not covered by the specific allegations. awarded an undivided one-half interest in the Henne v. Steeb Shipping Co., 37 Wash. 331, land. The trial court found that the deed was 79 Pac. 938; Redford v. Spokane St. Ry. Co., the valid and voluntary act of Mary O'Connor, 9 Wash. 55, 36 Pac. 1085.

that she was of sound mind, and that she In so far therefore as the order for a new intended to convey all of the realty to the trial was based on the latter ground it was respondent. Although many assignments of erroneous, but, since it is sustained by the error have been presented, and numerous first ground stated, it must be affirmed. It points are discussed in the briefs, the one is so ordered.

controlling question on this appeal is whether

the findings are sustained by the evidence. HADLEY, C. J., and CROW and RUD- Having carefully examined and weighed all KIN, JJ., concur. ROOT, J., dissents

of the evidence, we conclude that they are supported by its clear preponderance. The

appellant by two marriages, both contracted (47 Wash. 121)

against the opposition of her parents then MCCLELLAN V. O'CONNOR.

living, had become estranged from them. She (Supreme Court of Washington. Sept. 7, 1907.) | had been divorced from her first husband, DEEDS-EVIDENCE-VALIDITY-FRAUD.

and the evidence shows that her mother de Evidence in an action by a sister against termined that neither she nor her second her brother to set aside a deed to the brother

husband should receive any of the land; that from their mother on the ground of fraud held to support findings for defendant.

Mary O'Connor voluntarily executed and de[Ed. Note.-For cases in point, see Cent. Dig.

livered the deed to her son, the respondent, vol. 16, Deeds, 8 615.]

with whom she lived, and by whom her sup

port was provided; and that she was at the Appeal from Superior Court, Pierce Coun

time in complete possession of all her faculty; A. E. Rice, Judge.

ties, being of sound mind. There is an utter Action by Mary Agnes McClellan against

failure of competent evidence tending to show Thomas G. W. O'Connor. Judgment for de

any fraud on the part of the respondent, or fendant, and plaintiff appeals. Affirmed.

that he overreached his mother in any manSol Smith, for appellant. Welsh & Welsh, ner. No good purpose would be accomplished for respondent.

by discussing the evidence in detail. It is

.

sufficient to state that it clearly sustains the CROW, J. The plaintiff, Mary Agnes Mc- findings made by the trial court, and the final Clellan, brought this action against her broth- decree entered. er, Thomas G. W. O'Connor, to cancel and set The judgment is affirmed. aside a deed executed by one Mary O'Connor, a widow, the mother of plaintiff and defend

IIADLEY, C. J., and FULLERTON, RUDant, to recover the title to and possession of

KIN, MOUNT, and DUNBAR, JJ., concur. one-half of the realty thereby conveyed, and to also recover certain personal property. From a decree quieting the title of the de

(47 Wash. 103) fendant, and refusing to cancel the deed, the

GRUBB V. STEWART et al. plaintiff has appealed. The evidence shows that on April 5, 18998,

(Supreme Court of Washington. Sept. 6, 1907.) one William O'Connor, a single man, brother

1. USURY-PLEADING-NECESSITY FOR PLEA OF of appellant and respondent, died intestate; USURY. that certain land in Pacific county of which

Usury is unavailable as a defense unless he died seised descended to his mother, Mary

pleaded. O'Connor; that on November 1, 1898, Mary

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

vol. 47, Usury, $ 276.] O'Connor, by quitclaim deed, conveyed the

2. SAME-PERSONS ENTITLED TO PLEAD. land to the respondent, Thomas G. W. O'Con

Where defendants were not creditors nor nor; and that thereafter, on October 27, 1903, in privity with an investment company which Mary O'Connor died intestate; that on No- was complainant's debtor under a contract on vember 27, 1905, more than seven years after

which complainant's claim was based, they could

not avail themselves of the defense that the conthe execution of the deed, and more than two tract sued on was usurious; such defense being years after the death of Mary O'Connor, the personal to the debtor and his puivies. appellant, Mary Agnes McClellan, instituted [Ed. Note.-For cases in point, see Cent. Dig. this action, alleging that the respondent had

vol. 47, Usury, $ 361.) procured the execution of the deed by fraud

Appeal from Superior Court, Clallam Counand misrepresentation; that Mary O'Connor,

ty; Geo. C. Hatch, Judge. the grantor, was without business capacity; that she did not know what she was doing;

Suit by Betsy P. Grubb against James

Stewart and others. From a decree in favor that the deed was without consideration; that the land therein described still belonged

of complainant, defendants appeal. Affirmed. to ber estate; and that the appel nt as her James Stewart and Graves, Palmer & Murheir at law was entitled to a one-half interest phy, for appellants. Trumbull & Trumbull, therein. Appellant demanded that the deed for respondent..

MOUNT, J. On the 5th day of January, of the interest of Mrs. Grubb in the con1899, the United States Savings & Loan Com- tract of sale. This letter was accordingly pany, a corporation located at St. Paul, Minn., sent and receipt thereof acknowledged by entered into a contract with the Pacific & the savings and loan company. Thereafter, Oriental Investment Company, a corporation on January 5, 1900, the trust agreement was located at Port Angeles, in this state, to sell placed of record in Clallam wunty where to the last-named corporation lot 3, in block the land was located; but thereafter no pay13, of the town of Port Angeles, for a con- ment of the sum of $700, or any part theresideration of $1,700. According to the terms of, was made to Mrs. Grubb. The Pacific of this contract, $125 was to be paid in cash & Oriental Investment Company subsequentupon delivery of the contract, and thereupon ly, up to the year 1902, paid the United States possession of the property was to be delivered Savings & Loan Company on the purchase to the purchaser. Four hundred and twenty- price of the lots about $800 in principal and fiye dollars was to be paid on or before Jan- interest, besides the first payment above namuary 1, 1900, and like amounts on January 1, ed; but, notwithstanding payments were not 1.901, and 1902. The deferred payments were made as agreed to in the contract, no forto bear interest at 8 per cent, per annum, feiture was claimed. On the 11th day of and the purchaser was to keep the improve- July, 1902, the Pacific & Oriental Invest. ments on the premises insured and the taxes, ment Company, in consideration of $10, asetc., paid. "Time was made the essence of signed its contract of purchase to the rethe contract, and, in case of noncompliance spondent Stewart, and the assignment was by the purchaser, all payments thereon were approved by the savings and loan company. to become forfeited to the selling corporation. Mr. Stewart thereafter completed the payThis first payment upon this contract was ments due on the original contract, and on made by Mrs. Grubb, the respondent in this July 14, 1.803, took title in himself from the (ase, and thereupon she and the investment

United States Savings & Loan Company. company entered into the following agree- Thereafter, on November 26, 1904. Stewart ment: “Por: Angeles, Washington, March 28, conveyed the premises to the appellants Vellie 1899. To Whom it May Concern: This is Mastick and husband for an alleged considto certify that the sum of four hundred and eration of $1,800, and took a mortgage back twenty-five dollars ($125) has been paid by for $1.300. Thereafter this action was beMrs. Betsy Grubb, of the city of Port An- gun by respondent, alleging that she was the geles, Washington, as first payment of pur- equitable owner, and praying that the apchase of lot three (3), block thirteen (13), of pellants be decreed to hold the legal title the original government townsite of Port in trust for her. She did not offer to repay Angeles, with the buildings thereon. And the Stewart the money he had advanced on the agreement of sale made to the Pacific & Ori- purchase price of the lots. The appellants ental Investment Company by the United answered, alleging, in short, that the $125 States Savings & Loan Company is held in advanced by respondent to the Pacific & Oritrust by the said Pacific & Oriental Invest

ental Investment Company was advanced as ment Company for the said Mrs. Betsy Grubb a loan, and that the same had been fully upon the following conditions, to wit: The paid, and, if not paid, was barred by laches. said Pacific & Oriental Investment Company The trial court found that the amount adto have and to hold possession of said prop- vanced, viz., $125, to the Pacific & Oriental erty for the term of one year from January Investment Company, was a loan, and that 1, 1899, in consideration of said company pay- the trust agreement amounted to a lien on ing taxes for the year 1898 and paying in- the lot for said sum of $125, with interest at terest and insurance on same. And it is 7 per cent., and ordered the property sold further expressly agreed and understood that

to satisfy this claim, provided the amount should the said Pacific & Oriental Invest- was not paid by the appellants within 60 ment Company at any time during the year days. This appeal is prosecuted from that 1899, or up to the 4th day of January, 1900, judgment. pay the said Mrs. Betsy Grubb the sum of The principal point contended for by the seven hundred dollars ($700) gold coin, then appellants is that the contract between rethe said Mrs. Betsy Grubb relinquishes all spondent and the Pacific & Oriental Investclaim to said property and invests the title ment Company was usurious, and for that in the Pacitic & Oriental Investment Com

reason the principal should have been repany.” This contract was duly signed and duced by the amount of usurious interest acknowledgeil. On December 26, 1899, Mrs. contracted for under section 3671, Ballinger's Grubb sought advice from appellant Stewart, Ann. Codes & St. It is not necessary for who was then a practicing lawyer in Port us to decide the question whether the conAngeles, as to what she should do in case tract between respondent and the Pacific & the Pacific & Oriental Investment Company Oriental Investment Company as set out should fail to pay the $700 named in said above was usurious, because the appellants contract on or before January 4, 1900. Mr. cannot be permitted to raise this question Stewart advised her, and drafted a letter to in this case, for two reasons: First. The be sent to the United States Savings & Loan | defense of usury was not pleaded in the anCompany at St. Paul, notifying that company

"When usury is relied upon as a defense, it must be pleaded,” especially where PER CURIAM. This is a proceeding in usury does not appear upon the face of the disbarment brought against E. J. Grover, a record. Brundage v. Burke, 11 Wash. 679, practicing attorney of this state, by the re40 Pac. 313. Second. The appellants acquir-spondents, who are also practicing attorneys ed the property with full notice, both actual of this state and members and representaand constructive, of the claim of the respond- tives of the Whatcom County Bar Associaent. The deed from the United States Sav- tion. Specific charges of unprofessional conings & Loan Company to Jr. Stewart recit- | duct were made in writing, filed in the sued that it was made "subject to any liability | perior court, and a citation issued to the apwhich may arise by reason of anything which pellant requiring bim to appear and show may have been done by the parties under cause on a day named therein why he should the contract issued to the Pacific & Oriental not be disbarred from further practice as an Investment Company, or any one claiming attorney at law. The appellant appeared, under them, and by reason of which contract and put in issue the allegations of misconthis conveyance is made to the second party duct charged against him, and also set up as assignee thereof." The appellants were new matter by way of an affirmative defense. not creditors, nor in any way in privity with A reply was filed denying the new matter althe Pacific & Oriental Company, the debtor leged, and on the issues thus made a trial of the respondent, and therefore could not was bad resulting in a judgment disbarring plead the defense of usury, because such the appellant from practicing his profession defense is personal to the debtor or his for a term of two years. This appeal is privies, and cannot be set up by a stranger. from that judgment. 29 Am. & Eng. Enc. of Law (2d Ed.) p. 531; The appellant first assigns error on the rul2 Current Law, p. 1766; Lamoille County ing of the court refusing to dismiss the proNat. Bank v. Bingham, 50 Vt. 105, 28 Am. ceeding for want of jurisdiction. This asRep. 490, and authorities cited in note to signment is based on the fact that the acts page 191 of 28 Am. Rep. (50 Vt. 105).

of misconduct charged against the respondUnder the facts stated above, which are ent related to his conduct with reference to substantially undisputed, we are satisfied the certain claims against a bankrupt whose esjudgment was right. It is therefore affirmed. tate was then pending before a referee in

bankruptcy appointed by the District Court HADLEY, C. J., and CROW, FULLER- of the United States for the Western District TON, and DUNBAR, JJ., concur.

of Washington; tlie charges being that the appellant had solicited and collected money

from his clients under the pretense that the (47 Wash. 39)

same was needed for the purpose of bribing STATE ex rel. HARDIN et al. V. GROVER. the referee in order to induce him to render (Supreme Court of Washington. Sept. 5, 1907.)

a favorable decision on the client's claim. It 1. ATTORNEY AND CLIENT — DISBARMENT OF

is argued that this is in the nature of a ATTORNEY-JURISDICTION.

contempt to the referee in bankruptcy, and Where defendant, a regular practicing at- consequently the only court authorized to torney of the superior court, in proceedings in

punish the offense was the District Court of bankruptcy in the federal court solicited and collected money from his client on the pretense

the United States, by which the referee in that it was needed to bribe the referee in bank- bankruptcy was appointed. But this contenruptcy, the offense was one directly involving tion mistakes the nature of the offense. The his integrity and professional honor, so that the

offense committed by the appellant was not superior court had jurisdiction to disbar him, though the offense was committed in another

a contempt committed before the referee in jurisdiction.

bankruptcy. It was in the nature of a sub2. TRIAL-FINDINGS-SEPARATION.

stantive offense, directly involving his inWhere a petition for disbarment contained

tegrity and professional honor, and his fittwo distinct charges or specifications, the court was not required by Ballinger's Ann, Codes &

ness to practice as an attorney at law. Any St. § 4942, requiring different causes of action, court, the bar of which the delinquent is a when united in one complaint, to be separately member, has jurisdiction to disbar for unstated, nor by any other section of the Code, to

professional conduct, when and wherever separate its findings with reference to the separate charges specified; it being sufficient that

committed, whether the unprofessional conthe findings of fact and conclusions of law were duct relates to matters occurring in court, or separately stated as required by section 5029.

to a purely private and personal transaction

between the attorney and his client, and the Appeal from Superior Court, Whatcom

superior court in this instance had jurisdicCounty; A. W. Frater, Judge.

tion. Disbarment proceedings by the state of

The petition for disbarment contained two Washington, on relation of Ed. E. Hardin and

distinct charges or specifications. In making others, against E. J. Grover. From a judg

its findings the trial court did not make these muent of disbarment, defendant appeals. Af

the subject of distinct findings, but found the firmed.

facts as if the charge contained but one specHealy & Slentz and McCaferty, Bell & God- ification, numbering the findings seriatum frey, for appellant. Ed. E. Hardin, H. M. from 1 to 14. It is argued that this is fatal White, and Lin H. Hadley, pro se.

to the validity of the judgment, as the findings on the different specifications should missible as bearing on the question whether he have been separate, distinct, and independent, was exaggerating his condition. inasmuch as the charges were separate, dis

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

vol. 50, Witnesses, $8 1106-1108.] tinct, and independent. But there is no rule of law or practice that requires the findings Appeal from Superior Court, Spokane to be different than they were made by the

County; Miles Poindexter, Judge. court. The Code, of course, requires differ

Action by William A. Schneider against ent causes of action when united in one com- the Great Northern Railway Company. From plaint to be separately stated (Ballinger's a judgment in favor of plaintiff, defendant Ann. Codes & St. 8 4942), but there is no

appeals. Reversed. such requirement with reference to findings M. J. Gordon and Charles A. Murray, for of fact. These are sufficient when given in

appellant. A. G. Gray, for respondent. writing and separately stated from the conclusions of law (Id. $ 5029), and this latter re- FULLERTON, J. The respondent, on July quirement was complied with by the trial 3, 1906, being then a resident of Newport, court.

Wash., purchased a round-trip ticket from Finally, it is contended that the evidence that place to Sandpoint, Idaho. His purpose does not justify the findings of fact;. but, in going to Sandpoint was to attend a celewhile a large space in both briefs is devoted bration of the national holiday. He reached to an argument of this question, we do not Sandpoint some time in the evening of the feel that a discussion of it here would serve 3d, stayed there over the 4th, and started any useful purpose. We have already in- for home on an early train which passed dicated the nature of the charges, and it is through Sandpoint at about 5 o'clock on the sufficient to say that a careful examination morning of the 5th. Ile was somewhat late of the testimony convinces us they were sub- when he reached the station, and boarded the stantially proven.

train, with the assistance of the brakeman, The judgment appealed from must be af- after it had started to move out. The (onfirmed; and it is so ordered.

ductor was taking tickets in the car into which the respondent entered, and took up

the respondent's ticket without giving him a (47 Wash. 45)

seat check in return. On reaching a seat SCHNEIDER V. GREAT NORTHERN RY.

the respondent immediately went to sleep. CO.

When the train arrived at Priest River, a

station between Sandpoint and Newport, the (Supreme Court of Washington, Sept. 5, 1907.)

conductor approached the appellant, woke 1. TRIAL-RECEPTION OF EVIDENCE-REMARKS him up, and insisted that he get off the train. OF JUDGE.

There is a sharp conflict in the evidence as A remark by the court in overruling an ob

to what occurred at that time, but the conjection to evidence that he did not think it was very material nor entitled to much weight, but troversy ended by the respondent's getting that the jury might consider it, was objection- off the train assisted by the conductor. After able as a comment on the evidence, prohibited by

they reached the station platform, some furConst. art. 4, § 16.

ther talk was had, when the respondent was [Ed. Note.-.For cases in point, see Cent. Dig. vol. 46, Trial, § 81.]

permitted to reboard the train and ride to the

destination called for in his ticket. It is the 2. APPEAL-MISCONDUCT OF COURT-PREJUDICE.

respondent's contention that he was removed Where the court in ruling on the evidence from the train with such force and violence remarked that it was not very material nor en

as to injure him physically, and he brought titled to much weight, but the jury might consider it, and on exception taken did not with-, this action to recover for his physical injuries, draw the same, nor give any caution to the jury

as well as the shame and disgrace of havthat it was their duty to judge as to the weighting been wrongfully expelled from the train. and credibility of the evidence, the remark was

The trial resulted in a verdict and judgment prejudicial. [Ed. Note.--.For cases in point, see Cent. Dig.

in respondent's faror in the sum of $700), and vol. 3, Appeal and Error, $ 4135.]

this appeal is prosecuted therefrom. 3. WITNESSES-CREDIBILITY-EVIDENCE.

On the trial, the appellant put the conWhere, in an action for ejection of a pas ductor on the witness stand and proceeded senger, there was a sharp conflict between plain- to question him concerning the plaintiff's contiff and the conductor as to what occurred when plaintiff was required to leave the train, evi

dition as to intoxication at the time he dence concerning plaintiff's condition as to so- was put off the train at Priest River. To briety at the time was admissible as bearing on this the respondent objected, and the court, his credibility.

ruling upon the objection, said: "I don't [Ed. Note.-.For cases in point, see Cent. Dig. vol. 50, Witnesses, $8 1101, 1102.]

think it is very material, or entitled to much

weight, but the jury may consider it.” The 4. SAME-CROSS-EXAMINATION. Where, in an action for ejection of a pas

appellant thereupon excepted to the remarks senger, plaintiff claimed to have suffered severe as a comment upon the evidence, but the physical injuries, and testified that after the in- court neither withdrew the remarks from the jury, on the same day, he visited another town, going and coming on defendant's trains, before

jury, nor gave them any caution as to whom he consulted a physician concerning his injuries,

the duty belonged of judging the weight and "vidence as to the purpose of his visit was ad- | credibility of the evidence. Manifestly the

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