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fendant as a clerk in a grocery store, that| [2] In the instructions to the jury the he was not familiar with automobiles, that court, in substance, told the jury that, when on the day of his injury the defendant or- an employé is ordered or permitted by one dered him to crank the automobile without having authority over him to do a temporary informing him of the danger thereof, and work beyond the work which he had engaged that, while the plaintiff was turning the to do, and the one in authority knows, or crank to start the engine, the defendant, ought to know from all the circumstances without notifying the plaintiff, advanced the in the case, that such work is dangerous, it spark lever, which caused the engine to kick is the duty of the employer to caution and back and break the plaintiff's arm; second, instruct a disqualified employé sufficiently to that the plaintiff did not know that there was enable him to understand the dangers he will any danger of the engine back-firing, or kick- encounter. Another instruction was also giving back, and that the defendant failed to en along the same lines. It is argued by the warn the plaintiff of the danger, and failed appellant that the court erred in using the to instruct him how to take hold of the han- | words if the "defendant ordered or permitted dle of the crank. These allegations of negli- the plaintiff to attempt to set the engine of gence were denied by the defendant; and he the automobile of defendant in motion,” be alleged that the injury was caused by the cause the use of the word "permitted" was plaintiff's own neglect, that the defendant confusing to the jury. It may be that the ordered the plaintiff not to go about the auto- use of the word “permitted," taken from its mobile, but that the plaintiff voluntarily, in connection with the facts of the case, was violation of orders, and without the knowl not apt; but it is plain from a reading of edge of the defendant, attempted to crank the instructions in connection with the facts the automobile, and was injured.

that the court meant to tell the jury that, Upon these issues the case was tried to if the defendant ordered the plaintiff to set the court and a jury. A verdict was returned the engine in motion, then it was the duty of in favor of the plaintiff for the sum of $500 the plaintiff to instruct an ignorant servant damages to his person and $100 expenses. if dangers were attendant thereon. The The trial court granted a new trial unless plaintiff's case was based upon the allegathe plaintiff would remit from the verdict tion that he was ignorant of the dangers the sum of $200. This was done, and a judg- of cranking an automobile; that he was orment for $ 100 was entered. This appeal fol- dered by his master to do the work. The delowed. Numerous assignments of error are fense was based upon the statement that the made in the appellant's brief; but the as- defendant had forbidden the plaintiff to use signments are discussed under six points, the automobile, and that he was injured by which we shall briefly notice.

disobeying the orders of the defendant; that [1] It is argued first that the court erred he voluntarily, without the knowledge of the in denying motions for a directed verdict and defendant, attempted to crank the automofor judgment non obstante. This is based bile, and was thereby injured. There was upon the contention that no negligence on the no idea of permission, except as it may be inpart of the defendant was shown. It is ferred from an order by the defendant to the claimed that the evidence shows that the plaintiff to crank the automobile; and we plaintiff knew as much about cranking the think this is what the court meant, and what autoniobile as the defendant did, and that the jury understood by the instruction. If therefore it was not negligence for the de the use of the word “permitted” was error, it fendant to request the plaintiff to crank the was error without prejudice, because there automobile. The plaintiff testified that he was no contention on the part of the defendwas unfamiliar with the management of the ant that he permitted the plaintiff, as a volautomobile, and was unfamiliar with the unteer, to crank the automobile. The demethod of safely starting the engine. All fendant either ordered the plaintiff to crank the evidence tended to show that, when ait, or the plaintiff cranked it without the person is turning the engine, or cranking an knowledge of the defendant and against his automobile, the advancement of the spark desires. We are satisfied, therefore, that lever at that time will cause the engine to these instructions were not erroneous under back-fire, or kick back. We think the evi- the circumstances. dence fairly shows that the defendant knew [3] It is next contended that the court or should have known this fact. It was erred in instructing the jury to the effect clearly negligence, therefore, for the defend that in estimating the amount of damages ant to advance the spark so as to cause the to be allowed to the plaintiff they had a engine to kick back when he knew the plain- right to take into consideration the pain and tiff was turning the engine by the crank, be- suffering which the jury found the plaintiff cause it was clearly shown that when an to have sustained as the result of his injuengine kicks back, or back-fires, the person ries, “and any future pain and suffering, if holding the crank is placed in imminent dan- any, that the evidence shows that the piainger. We are satisfied that upon this fact, tiff will be subjected to." It is argued by the alone the question of negligence was for the appellant that the complaint did not ask for jury, and the court therefore did not err in damages for future pain and suffering, and This court has held in a number of cases conduct which would warrant the granting that an instruction is erroneous where the of a new trial. When counsel made this jury are directed that they may find damages statement it was objected to, and the court for future pain and suffering which would told the jury, in substance, that they should probably occur in the future. Bennett v. 0.- not consider statements of counsel unless the W. R. & N. Co., 83 Wash. 64, 145 Pac. 62. same were supported by the evidence. We The court in this case did not so instruct the think this was not such misconduct of counjury, but instructed that they might find for sel as would warrant the granting of a new future pain and suffering which the evidence trial. We are also satisfied that the judgshowed that the plaintiff would be subjected ment as finally rendered is not excessive. to. We think this is a correct instruction, The judgment is therefore affirmed. and therefore not erroneous. In the Bennett Case, supra, we held that, where there MORRIS, C. J., and FULLERTON, ELLIS, is evidence that the plaintiff will be sub and CHADWICK, JJ., concur. jected to future pain and suffering, he is entitled to recover therefor. It is where there is a mere probability that the plaintiff will

CHAFFEE v. HAWKINS et al. (LYNCH, suffer that the instruction is erroneous. We find no waiver upon this question.

Intervener). (No. 12904.) 141 It is next urged as error that the (Supreme Court of Washington. Jan. 7, 1916.) court refused to give certain instructions to 1._ACKNOWLEDGMENT 62 - VALIDITYthe effect that, if the jury found that the

PLACE.

A deed fair on its face, signed by the granservant chose an unsafe way in which to tors and duly acknowledged, imports verity, perform the act, where there was a safe and will not be held invalid merely because of method which a reasonably prudent person uncertainty in the proof of the place of acknowlwould take, then the servant could not re

edgment.

[Ed. Note.-For other cases, see Acknowledge cover. This, no doubt, is the rule in a prop

| ment, Cent. Dig. 88 345–347; Dec, Dig. Om62.] er case; but the only application this rule

2. ACKNOWLEDGMENT 56, 62–CERTIFICATE could have here is as to the manner in | OF NOTARY-IMPEACHMENT-PROOF. which the respondent says he took hold of | A grantor may impeach the notary's certifithe crank handle. There is nothing in the

cate for fraud or other reasons recognized in

equity, but the proof thereof must be clear and record to show that there was a safe way,

convincing. and also an unsafe way, in which to take

| [Ed. Note.--For other cases, see Acknowledg.

Ed. Note. For other cases se hold of the crank handle. There was evi- ment, Cent. Dig. 88 301, 302, 315, 345-347; dence to show that taking hold of the crank | Dec. Dig. Om 56, 62.] in a certain way was safer than taking hold 3. ACKNOWLEDGMENT Pm 62 – IMPEACHMENT of it in some other way. But the plaintiff ! OF NOTABY'S CERTIFICATE-PROOF.

Where the testimony of mortgagors in a also testified that he was not aware that

mortgage foreclosure suit, denying that they ac. there was a safe way to take hold of the knowledged the mortgage, was contradicted by crank and an unsafe way. He was not in the testimony of all others who were present,

and was in conflict with the attendant circumstructed upon that point, and did not know.

stances, and it appeared that, in consideration We think an instruction with reference to

of the giving of the mortgage and the notes the choice of ways does not apply to such secured by it, a pending action had been disfacts.

missed and a judgment satisfied, thereby releas[5] It is next argued that the verdict is

ing a judgment lien, and that the mortgage had

been duly recorded, there was a want of that excessive, and that the jury were influenced

clear and convincing proof essential to an imby passion, shown by the fact that in the in peachment of the notary's certificate to the acstructions the jury were told that they could

knowledgment. not return a verdict in excess of $40 for ex

| [Ed. Note. For other cases, see Acknowledgpenses to which the plaintiff had been put

ment, Cent. Dig. $ 345-347; Dec. Dig. Om 62.) for doctor's bills, etc., and because the jury

4. MORTGAGES 556 - DEFICIENCY JUDG

MENT-LIABILITY OF GRANTEES. returned a verdict for $100 on account of A recital of a warranty deed that it was this item. This, no doubt, was the reason "subject * * * to all liens" did not make the that the trial court ordered a reduction of grantees liable to a deficiency judgment on fore

closure of a mortgage not specifically mentioned the verdict from $600 to $400. Conceding

in such recital. that the jury returned an erroneous verdict in

[Ed. Note.-For other cases, see Mortgages,

Noten in the sum of $100, when the instructions Cent. Dig. 88 1592–1595, 1597; Dec. Dig. Om permitted them to return a verdict for only 556.) $40 upon that question, that error was com- 5. MORTGAGES m 558 – DEFICIENCY JUDGpletely cured when the total amount of the MENT--LIABILITY OF GRANTEE excessive verdict was stricken or reduced

The grantee in a deed made subject to

liens generally is liable for a deficiency judg(6, 7) It is finally claimed that in the open ment rendered on foreclosure of mortgage ing statement of counsel for the plaintiff a against the property only when it clearly apstatement was made to the effect that shortly pears that it was his intention to assume and

pay the mortgage debt; any doubt as to his inafter the accident the defendant discharged

tention being resolved in his favor. the plaintiff from his employ, and refused to (Ed. Note.-For other cases, see Mortgages, pay his doctor's bill, and that this was mis- I Cent. Dig. & 1596; Dec. Dig. 558.)

Department 1. Appeal from Superior, fore had by them with him, did not read over the Court, Yakima County; Thomas E. Grady, said notes, and did not observe that there was Judge.

with the same any document purporting to be a

mortgage, or any document other than a note, Suit by Stephen E. Chaffee, trustee for C.

and appended their signature to the various pa. A. Jones and others, against Luther Haw 1 pers as they were presented to them for that kins and others, wherein John H. Lynch in- purpose; that after so doing they immediately

left the office without either acknowledging, or tervenes. From decree for defendants, plain

intending to acknowledge, the execution of any tiff appeals. Reversed and remanded, with mortgage, and never knew that they had signdirections.

ed a mortgage until the commencement of this

action;" "that the defendants are illiterate colorStephen E. Chaffee, of Sunnyside, for ap- ed people and, although able to write and read pellant. Lynch & Chesterley and John H. to some extent, yet they are slow of intellect, Lynch, all of North Yakima, for respondents. I thought, and speech, and it is difficult for them

to comprehend business affairs of the nature

involved in this suit." CHADWICK, J. Prior to October 22, 1913, The court further found that defendants defendants Luther Hawkins and Jennie Haw-I Chesterly took their deed without actual kins, his wife, were indebted to several per- knowledge of the existence of the appellant's sons upon certain promissory notes in the mortgage; that they were not bound theresum of $80.10 each, and to another in the by, and had taken title to the land subject sum of $274 upon a judgment theretofore only to the lien of intervener's mortgage. rendered, in all aggregating the sum of $755. The court accordingly held that appellant 60. Appellant is an attorney at law and have judgment against defendant Hawkins had, prior to that time, begun a suit against for the full amount claimed and $125 attor. the defendants Hawkins to recover the sums ney's fees; that the mortgage given to se. due upon the promissory notes. In considera- cure him as trustee was null and void ; that tion of a dismissal of the suit and the sat- the Lynch mortgage was a prior lien for $2,isfaction of the judgment that had thereto-000, less the sum of $294, which had been fore been entered against them, the defend- paid thereon; and that title to the land was ants Hawkins made a new note, and a mort- in the defendants Chesterley. gage upon a 40-acre tract of land, the legal Appellant's mortgage is in proper form, and title to which was then in them. On Febru- was seasonably recorded. It purports to be ary 1, 1913, the defendants Hawkins had acknowledged before H. L. Miller who was employed the intervener Lynch to defend an the cashier of the bank at Sunnyside, and is action involving their land, and had given a attested with his seal. The instrument and mortgage-in form a quitclaim deed-in the its acknowledgment is sustained by the tessum of $2,000 to secure his attorney's fees and i timony of the appellant and by the notary. the expenses of the suit. In January, 1914, The testimony of the defendants Hawkins defendants Hawkins made, executed, and de- is to the effect that they did not agree to livered their deed of warranty conveying the and did not intend to sign a mortgage; that mortgaged premises to defendants Chester- if they did so, the mortgage was given in igly

norance of the fact that it was a mortgage. "subject, however, to all liens, incumbrances and

We have not overlooked the answer of the taxes which are a valid and subsisting charge

husband defendant that the signature was upon said premises, and subject to a quitclaim deed intended as a mortgage executed by Luther not his signature, but the whole of his testiHawkins in favor of John H. Lynch recorded mony makes it plain--and it is not seriously in volume 133 of deeds at page 634, deed records contended that it is not so that he intended in the office of the auditor of Yakima county, Washington, which said grantee hereby assumes

to say no more than that it was not a binding and agrees to pay as a part of the purchase signature, price above mentioned.”

[1] A collateral issue was developed on the Thereafter appellant, acting as trustee for trial. It became uncertain whether the inhis clients, began this action to foreclose strument was acknowledged in the office of the lien of his mortgage. Mr. Lynch inter- the appellant or at the bank. Much is made vened, and from the complaint, the petition of this uncertainty by counsel, but in the and answer in intervention, and the answer light of the whole record and the established of the defendants, the issue whether appel- principle that a deed fair upon its face, signlant's mortgage was in fact executed is drawn. ed by the grantors and duly acknowledged, The court below found that the claims rep- imports verity which courts will not lightly resented by appellant were valid claims at disregard constrains us to hold that the place the time they were executed; that at no the deed was acknowledged is not very matetime, either before or at the time the mort- rial. gagé purports to be executed did the defend-/ [2] Appellant contends that one who has ants Hawkins, or either of them, promise or signed a deed will not be heard to question agree to execute any mortgage or expect or it or to challenge the certificate of the notary intend to do so, and that:

who has taken and certified to his acknowl"As soon as the notes and said mortgage were edgment. There is abundant authority to prepared, they were placed before the defend- sustain this premise but we think the better ants Hawkins for signature and the said Haw

doctrine is that a grantor may impeach such kins and wife, relying upon Mr. Chaffee to prepare notes for their signature in accordance certificate for fraud or other reasons, finding

ples of equity. We think the true rule is as [4, 5] The only question now necessary for stated in Western Loan & Savings Co. v. us to decide is whether appellant is entitled Waisman, 32 Wash. 644, 73 Pac. 703, where to a deficiency judgment against defendants the court said:

Chesterley. The law is that a deed taken "That the evidence required to overcome a subject to prior liens does not bind the gran. certificate of acknowledgment must be clear tee to pay, unless it is stated in the instruanil convincing is generally held, and it may

ment or is shown by independent evidence well be said that where fraud or duress is not shown as a circumstance attending an acknowl- that it was taken in fact subject to the payedgment, the unsupported testimony of parties ment of the existing incumbrance, or that directly interested in the impeachment is not

the existing incumbrance was a part of the of that clear and convincing character that is necessary to overcome a record and an official purchase price. It seems clear to us that act."

the assumption clause in the Chesterley deed The doctrine is sustained in Drew v. Bouf- did not bind the vendees to pay or make them fleur, 69 Wash. 610, 125 Pac. 947, and State v. personally liable for any lien or incumbrance Hatfield, 65 Wash. 550, 118 Pac. 735, Ann. other than the mortgage owned by the interCas. 1913B, 895. See, also, 1 R. C. L. p. 294, vener. The deed was made subject to liens as follows:

generally, and subject to a particular lien "Impeachability for Fraud, Accident, or Mis- which is described and which the grantee astake.-It is a maxim of the law that fraud viti- sumed to pay. Or if the language be doubtates all things, and certificates of acknowledg-fu

leds ful, appellant is in no better position. A ment are no exception to the rule. The other grounds upon which written instruments gener- Vendee is bound under such covenants only ally are open to attack may also be made the when it is clear that it was his intention to basis for the impeachment of certificates by assume and pay alien or incumbrance. the introduction of parol evidence. Many Jo courts, reasoning that the officer taking an ac

Jones on Mortgages, $ 748, and citations. 27 knowledgment acts judicially, have asserted that Cyc: p. 1343. From this it follows that if it if a certificate is regular on its face, parol evi- be doubtful, the doubt will be resolved in dence may not be received to contradict it in favor of the vendee, and a recovery against the absence of an allegation of fraud, mistake, collusion, imposition, or the like. According to

s him will be denied. this view, certificates are not entitled to the The court below held jurisdiction of the precise degree of credit that is given to judg: case until the case of Union Central Life Iniments of courts of record; but they are held to be entitled to much of the weight and au

surance Co. v. Hawkins, 84 Wash. 605, 147 thority of records, and to be subject with some

de tohe obiect with some Pac. 199, should be finally decided in this modifications to the same general principles of court in order to determine whether the inconstruction and intendment which apply to tervener was entitled to the full amount of other matters of the same class."

his mortgage, less the sum paid. That case • All the books agree, however, that the evi

being disposed of favorably to the intervendence offered to impeach an acknowledgmenter's clients, he is entitled to a foreclosure of regular in form must be clear, cogent, and his lien. convincing. 1 Cyc. at page 623, lays down the

The case is reversed and remanded, with rule:

directions to enter a decree that will pro"Where a certificate of acknowledgment is tect the lien of appellant and the lien of the regular on its face, a strong presumption exists in favor of its truth. * ** * The proof to

intervener in the order of their priority. overthrow a certificate regular on its face must be so clear, strong, and convincing as to exclude MORRIS, C. J., and MOUNT, ELLIS, and every reasonable doubt as to the falsity of the FULLERTON. JJ.. concur. certificate."

[3] In the case at bar, while it is true that the defendants Hawkins deny the mortgage, their testimony is not supported by any oth- WELCH et ux. v. PETLEY et al. (No. 12889.) er witness, nor do there seem to be any (Supreme Court of Washington. Jan. 11. 1916.) equities which can be said to sustain their

1.' MUNICIPAL CORPORATIONS Om821-STREET contention. On the other hand, their testi- IMPROVEMENT - PERSONAL INJURY — NEGLImony is denied by all who were present, and / GENCE-SUBMISSION TO JURY. is challenged by all the concomitant facts

Where, in an action against a contractor

and a city for personal injuries from a defective and circumstances. A pending action was

sidewalk, it appeared that the contractor was dismissed; a judgment was satisfied which grading the street under a contract therefor operated to release the property from the with the city and occupied a portion of the judgment lien. The mortgage was recorded

street for that purpose near the point of injury

with machinery and a coal pile; that he had and became a matter of constructive notice | barricaded the street but not the sidewalk, to the purported makers, and it may be fair- wbich was left open for the public, and on the ls inferred from the record. a matter of no- | night of the accident he had hung red lanterns

on the machinery and coal pile, but had placed tice to their attorney, the present intervener,

no lights or warning signals at a point where and the defendants Chesterley.

he had that day torn up the sidewalk, which was We conclude that the defendants and the part of his work, and plaintiff, knowing that the intervener have not sustained the issue ten- |

grading was being done, but not knowing that

the sidewalk was torn up at that point, was dered by them by evidence that is strong, caused to fall by such condition of the sidewalk, convincing, and cogent.

the place being dimly lighted by distant street

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

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lights. The case was properly submitted to the but left lying flat on the ground at the time jury on the question of the sufficiency of the mentioned, from the donkey engine south for barriers and warnings with regard to persons using the sidewalk and on the question of plain

some distance. The contractor removed one tiff's negligence.

of the planks from the narrow sidewalk on [Ed. Note. For other cases, see Municipal the easterly side of Thirty-Seventh avenue Corporations, Cent. Dig. 88 1745-1757; Dec.

south, at the point about 90 feet south from Dig. Om 821.)

Hudson street where it was about 20 inches 2. APPEAL AND ERROR 977 — MOTION FOR NEW TRIAL-OVERRULING-DISCRETION.

from the ground, and left no barrier or light Where, in an action for personal injuries,

or other warning to guard that place, and at the court below overruled defendant's motion for that place, after night or on the night in new trial for developments in plaintiff's condi

question, it was very dark. tion subsequent to the rendition of a judgment in her favor, such ruling will not be interfered

At about 10:30 in the night of June 20th, with on appeal, in the absence of a clear abuse Mrs. Welch left the southwest corner of the of discretion.

intersection of Hudson street and Thirty_[Ed. Note. For other cases. see Appeal and Seventh avenue south, walking very rapidError, Cent. Dig. 88 3860_3865; Dec. Dig. On llo 977.]

ly, or almost running, diagonally across

Thirty-Seventh avenue south, to the easterly Department 2. Appeal from Superior side of the street, reaching the line of the Court, King County; King Dykeman, Judge. sidewalk on that side a little distance north

Action by Albert Welch and Ruby Welch, of the place where the plank had been rehis wife, against B. H. Petley and others, to moved, walked to that place, and not knowrecover for personal injuries. Judgment for ing previously and not being able to see at plaintiffs, and defendants appeal. Affirmed the time that the plank had been removed,

E. P. Whiting. Jas. E. Bradford, and F. stepped down, fell, and sustained severe inM. Egan, all of Seattle, for appellants.

juries. A part of the contractor's work was Green & Chester, of Seattle, for respondents.

to remove the plank sidewalk and grade and

improve the street its entire width. Mrs. HOLCOMB, J. Eighteen errors are as

Welch had been familiar with the street and signed by the appellants, but they are argued

the sidewalk in this locality about three under three general propositions: (1) Wheth

years, but had not been along there that day, er or not appellants were guilty of negli

and was unaware of the removal of a part gence; (2) whether or not respondent Ruby

of the walk. There was an arc light at the Welch was guilty of contributory negligence;

southeast corner of the street intersection and (3) whether the court erred in giving

mentioned, extending on an arm from a wire and in refusing certain instructions.

pole. There were incandescent lights further (1) On and prior to June 20, 1914, Thirty

Thirty south on Thirty-Seventh avenue, but none Seventh avenue south in Seattle was a pub

very near the place where the accident oclic street, with a plank sidewalk along the

curred. There was a conflict in the testi. easterly side thereof for some distance south

mony as to what red lights were put up at of Hudson street, consisting of two rows of the street intersection. It seems well eswide planks laid parallel side by side, and tablished that there was one red light on the which had been used by respondents and coal pile and one on the donkey engine. Repedestrians generally for a long time. At a spondents and other witnesses in their bepoint about 90 feet south of the south line

half testified that there was no warning red of Hudson street the plank sidewalk was ele

light at the entrance to the walk going south vated about 20 inches from the ground. The

from Hudson street on Thirty-Seventh avecity had let a contract to Petley for the nue, no boa rd nailed up, nor any sign, signal, grading of Thirty-Seventh avenue south, and or warning to indicate that the walk was not on June 17, 1914, the contractor had taken to be used by the public. There was no barpossession of the street under his contract rier or sign of any kind at the south end of and, at the intersection of the street with the block to indicate that the street was Iludson street just south of the south line closed to travel. thereof, he had placed a platform on skids, ' 1. Appellants rely upon the decisions in 9 feet 9 inches wide and 35 or 40 feet long, Hunter v. Montesano, 60 Wash. 489, 111 Pac, on which was mounted a donkey engine and 571, Ann. Cas. 1912B, 955, Jones v. Collins, boilers. Just north of the south line of 177 Mass. 444, 59 N. E. 64, and Compton v. Hudson street and its intersection with Thir- Town of Revere, 179 Mass. 413, 60 N. E. 931, ty-Seventh avenue south, a car of coal was to the points that obstructions so placed, and placed on a track, and a large pile of coal of such nature as to be calculated to give was unloaded therefrom on the ground close ample notice to the public that the street to the platform and extending across the was in process of construction and not open center of the street, leaving space sufficient for travel, thereby suspended the legal liaat each end of the pile for the sidewalk and bility for not keeping the street in a safe for teams to pass between the sidewalks and condition for travel; and that a person so the coal pile up and down Thirty-Seventh traveling such street assumes the hazard inavenue south. There were cables extended, I cident thereto.

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