precedent to obtaining his deeds. Had he suc-, cial as to defendants, charged only with negliceeded in giving personal notice to the appel- gence in the manner of its maintenance. lants, a less stringent rule might be invoked in his behalf."

[Ed. Note.-For other cases, see Trial, Cent. The judgment is reversed, and the cause Dig. §§ 703-717; Dec. Dig. 295.] remanded for further proceedings.

CHADWICK, J. Respondent fell on a had any business dealings with any of the manhole and was injured. The manhole was defendants, although the examination might maintained in the sidewalk for the purpose reveal the ultimate fact that the defendant of putting fuel into the basement of a hotel was insured. If such information comes which was conducted by appellants. It is al-about naturally and is an incident to a lawleged that the covering on the manhole was ful inquiry, there can be no error. If it is innegligently maintained. Defendants Huth, the owners of the building, were dismissed out of the case during the progress of the trial. The jury found in favor of the city of Tacoma, and rendered a verdict in favor of respondent Jensen in the sum of $1,500. There was testimony to sustain the finding of the jury that the cover to the manhole was negligently maintained, and a motion for non-ent was guilty of misconduct in that he obsuit was properly overruled.

jected in a collateral way it is held to be harmful. The gravamen of the offense is not in the disclosure of a collateral fact, but in the manner of its disclosure; that is, the misconduct of counsel. The cases to sustain our holding are collected in Moy Quon v. Furuya, 81 Wash. 526, 143 Pac. 99.

[2] It is objected that counsel for respond

jected to the further participation in the trial [1] Upon the examination of one of the of the attorney for the defendants Huth aftjurors and in answer to the question, "Your er they had been dismissed out of the case. business is what?" he answered, "I am with A motion for a nonsuit had been made on L. N. Hanson Company, liability insurance | behalf of the Huths, which was not "resistand surety bonds." He was then interrogat- ed." There followed a confusion of ideas, ed further: and the court finally denied the motion. "Q. Do you carry insurance on the Carlton Counsel for respondent evidently proceeded Hotel? A. No. Q. Do you know Mr. Schlenz? upon the theory that the Huths were out of A. That is in a business way? Q. That is you the case and other counsel that they were have done business with them? A. I think possibly.

Q. Do you know what branch of your still in. Hence the objection to their further line of business which you have done for these participation. When the objection was made different people, any of it indemnity? A. I think that for the Pacific Brewing & Malting all parties seem to have come to a common Company we might have written some. Q. Any understanding and counsel for respondent kind with the Schlenzes and Huths? A. Oh, I "consented" that a judgment of nonsuit be could not recall. I think possibly it was liability entered. We can find no prejudice in the proand such as that. Q. Ever hear of this case? A. I don't just recall as I have. I generally ceeding. keep in touch with all these personal injury cas- [3] Nor was it error to dismiss the defendes because that is my line, but I don't just re- ants Huth. The consent that a judgment of call the case now. Q. It is a part of your busi-nonsuit might be entered was equivalent to a ness, regular business to keep in touch with them? A. Yes. Q. And ascertain to what ex- voluntary dismissal. 14 Cyc. 411. Any one tent if at all your company is interested? A. or more joint tort-feasors may be dismissed Yes. Q. You don't recall whether you ever had out of a case if the plaintiff consents thereoccasion to look into this or not? A. No. Q to or takes no exceptions to an order of disYou don't know now whether your company is interested in the result of the suit? A. I don't missal. It is not a matter of legal concern think so. No. I am pretty sure it is not. Q. It to his codefendants. Birkel v. Chandler, 26 may be and it has escaped your attention? A. Wash. 241, 66 Pac. 406; Ronald v. Pacific I think possibly this would be in our general lia-Traction Co., 65 Wash. 433, 118 Pac. 311; bility insurance policy. I think another company, that is Q. You think you are not interested in that way in this case? A. No. Q. Well, we will pass you."

Counsel predicates error upon this incident, saying:

"This court has held in many instances that any attempt on the part of counsel to bring before a jury the question of insurance in a case of this character is reversible error."

Groot v. Oregon Short Line R. Co., 34 Utah, 152, 96 Pac. 1019.

[4, 5] Error is predicated upon an instruction in which the court told the jury that there was no evidence to warrant a finding of fault in the construction of the manhole

any danger to pedestrians walking over the same if the covering over the manhole by the persons in charge of the Carlton Hotel, was inserted in the opening and was maintained

We do not understand that the court has ever gone so far. The extent of our holding is that if it be apparent that counsel deliber-in the way that it was designed to be maintainately sets about, although in an indirect way, to inform the jury that the loss, if any, will fall upon an insurance company instead of the defendant, his conduct will be held prejudicial.

"In cases of this kind if it should appear that the purpose of the examination was to inform the jury that the burden of a judgment, if obtained, would fall upon an insurance company instead of the defendant, we would hold it such misconduct on the part of the attorney as would warrant a reversal." Hoyt v. Independent Asphalt, etc., Co., 52 Wash. 677, 101 Pac. 367.

Counsel had a right to inquire into the business of the juror and to know whether he

ed, and rubbish or débris were not permitted to lodge or accumulate in the space intended for missed from the action. This leaves for your dethe covering, and Huth and wife have been distermination the question, whether or not the defendants City of Tacoma, or F. C. Schlenz and wife, or either or both of them, were guilty of negligence charged against them by the plaintiff in this action."

The instruction was wholly unnecessary, inasmuch as the Huths had taken a judgment of nonsuit; but we cannot see wherein it prejudiced appellants. Neither is it objectionable as a comment upon the facts. Granting that no witness did swear directly

that sticks and bark and rubbish had been [It is only so held when the misstatement or permitted to accumulate in the collar of the unnecessary statement can be fairly held to lid of the manhole there is evidence from which the jury could have inferred the fact. [6] Negligence, while never presumed, may nevertheless be proved like any other fact by ircumstantial evidence. Sweeten v. Pac. Power & Light Co., 153 Pac. 1054; Abrams v. Seattle & Montana Ry. Co., 27 Wash. 507, 68 | Pac. 78; Sroufe v. Moran Bros., 28 Wash. 381, 68 Pac. 896, 58 L. R. A. 313, 92 Am. St. Rep. 847.

The court told the jury:

"I instruct you that you are not at liberty to conclude that the walk in question at the time and place of the accident, was in a dangerous condition simply because of the accident which happened to plaintiff. But you must consider all the facts and circumstances with relation to the condition of the walk at the time of the accident, and from all of the facts and circumstances in the case, as shown by the evidence and under the instructions I give you as to the law, determine in your own mind whether the place where plaintiff was injured was in a dangerous condition to persons traveling in the ordinary way, using ordinary care."

It is said:

The

"Under this instruction the jury would be justified in returning a verdict against the appellants regardless of whether any act of negligence had been established against them or not. court in effect directs the jury that if they find that the sidewalk at the place and time where the plaintiff was injured was in a dangerous condition they must find a verdict for the plaintiff. No mention is made of this dangerous condition being caused by the negligence of appellants. The only question for the jury to determine was whether or not the sidewalk was in a dangerous condition."

[7] We have often held that an instruction will not be isolated for the purpose of criticizing it, but that we will keep it in its setting and construe it with reference to and in relation to the other instructions given to the jury. We will not now stop to assemble the We have read the instructions and find that the court instructed fully upon the law of negligence, and that respondent could not recover unless the jury found that pellants were in fact negligent.

cases.

be a misdirection of such consequence as to raise a presumption of prejudice. If the element of lessened earning capacity was the only question in the case, the instruction would have been erroneous; but it was not. The jury was not put to the stress of speculation. There was fact to rest the verdict upon and law to sustain it. The other objection is without merit. Respondent had for a time at least been unable to pursue his usual vocation. We cannot presume that the jury went beyond the evidence.

[10] Neither can we say, as a matter of law, that the verdict is so large that it reflects the prejudice or the passion of the jury. Respondent suffered a painful injury. He testified that he was in constant pain; that his work kept him upon his feet all the time; that the injury had brought on a varicose condition of the veins in his leg; and that he was weak and became quickly exhausted. Respondent was 60 years of age at the time the accident occurred, and there is medical testimony to the effect that his injuries are permanent and will not grow less in degree. We find no prejudicial error.

Affirmed.

MORRIS, C. J., and ELLIS, MOUNT, and FULLERTON, JJ., concur.

PAINTER et ux. v. KENNEDY et al. (No. 12559.)

(Supreme Court of Washington. Jan. 12, 1916.)

1. MORTGAGES 556-ASSUMPTION OF MORTGAGE-EFFECT.

Where a sale of mortgaged land was negotiated by a private individual, but, when the sale was made, the deed was taken in the name of a bank which, in fact, acted only as the agent take payment of the mortgages or agree to asof another person, and the bank did not underap-sume them, it could not be liable in an action for foreclosure for a deficiency judgment, since create a liability to redeem the promise of the its mere taking the deed in its name did not negotiator to assume the mortgage; such promise not being merged in the deed.

[Ed. Note. For other cases, see Mortgages, Cent.Dig. §§ 1592-1595, 1597; Dec.Dig. 556.j 2. APPEAL AND ERROR 960-SCOPE OF RE- ORDERS OF TRIAL COURT-DISCHE

VIEW-
TION.

[8, 9] It is complained that the jury were instructed that it might allow respondent a recovery for "depreciation in his earning capacity, if any," and all loss and damages, "for inability to follow his usual occupation" whereas there was no testimony to show depreciation in earning capacity or inability to follow his usual occupation. It appears that respondent returned to his work in about six weeks, receiving the same wages he had ceived before the accident. We must credit jurymen with having the common understanding of men, and when told that they may allow for a particular damage, if any, that they will not accept that statement as a fact and predicate a recovery upon it, unless there is testimony to sustain it. It is not In such case, where the purpose of the every misstatement or unnecessary statement cross-complaint was to set up an independent of the law that will be held to be prejudicial.cause of action, an order striking it as coming

The court on appeal will not disturb the order of the lower court striking the cross-comre-plaint of one who, although not defaulted against, failed to answer until after trial below; such an order being largely in the discretion of the lower court.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 3825, 3832-3834; Dec. Dig. 960.]

3. JUDGMENT 569 RES ADJUDICATA WHAT CONSTITUTES.

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

too late would not be res adjudicata of the rights | homish county property existing at the time of the cross-complainant.

[Ed. Note. For other cases, see Judgment, Cent. Dig. 998; Dec. Dig. 569.]

of such transfer, and thereby became liable to the original and cross-complainants for the payment of the original indebtedness, and Department 2. Appeal from Superior consequently liable to the cross-complainants Court, Grant County; Guy C. Alston, Judge. for any deficiency which might be chargeable Action by S. K. Painter and Lena Painter, after the foreclosure sale. The cross-comhis wife, against J. A. Macauley and others, plaint was served on the bank, and it made in which E. J. Kennedy and wife filed cross-answer thereto by a general denial and by an complaints. From a deficiency judgment on affirmative plea to the effect that the actual foreclosure against the defendant Grant Coun-purchaser of the property was one E. J. Dufty Bank, the Bank appeals, and from an or- fey, and that it took the legal title to the der striking the cross-complaint of the de- property as security for certain notes executfendant Ralph C. Bell, trustee, he appeals. ed and delivered to it by Duffey, and for no Judgment as to the Grant County Bank re- other purpose. versed and remanded, with instructions, and judgment as to Bell affirmed.

John Sandidge, of Everett, for appellant Bell. Hulbert & Husted, of Everett, and William M. Clapp, of Ephrata (Troy & Sturdevant, of Olympia, of counsel), for appellant Grant County Bank. Herr, Bayley & Wilson and Carl E. Croson, all of Seattle, for respondents Kennedy.

On the issues framed between Kennedy and the bank a trial was had resulting in findings to the effect that the bank had assumed and agreed to pay the incumbrances on the property conveyed to it, and in a decree to the effect that the plaintiffs recover over against the bank for any deficiency that may remain after the sale of the mortgaged property. From this decree the Grant County Bank appeals.

FULLERTON, J. On November 27, 1911, After the trial of the issues between the the defendants Kennedy and wife borrowed defendants Kennedy and the Grant County from the respondent S. K. Painter the sum Bank had been concluded, and after the court of $1,500, securing the same by mortgage on had announced its judgment therein, one certain real property situated in Snohomish Ralph C. Bell, as trustee, who was made decounty. Subsequently Kennedy and wife fendant in the original action, filed an answer mortgaged the premises to other parties to and cross-complaint, serving it upon Kennedy secure their several obligations, the total face and wife and the Grant County Bank with value of all of the mortgages aggregating an original summons, seeking a foreclosure of on December 28, 1912, some $4,335. On the certain of the junior mortgages and a sale day last mentioned Kennedy and wife ex- of the property thereunder. A deficiency changed the property for certain property of judgment was also sought against the bank one E. C. Davis situated in Grant county. for any deficiency that should remain after Davis was then president of the appellant the sale of the mortgaged premises and the Grant County Bank, and the deed from Ken- application of the proceeds of the sale propnedy and wife of the Snohomish county properly applicable thereto in payment of the erty was made to the bank. There was also amount due on the junior mortgages. The a mortgage on the Grant county property, and the deeds as exchanged severally recited that it was made subject to the incumbrances on the property therein described. There was no recital in either deed that the grantee therein assumed the incumbrances.

On January 5, 1914, the respondent Painter, his wife joining therein, brought the present action to foreclose the mortgage executed to him by Kennedy and wife. In his complaint he made parties defendant the original mortgagees, the subsequent lienholders, and the Grant County Bank. In the complaint as originally filed he asked for a deficiency judgment against all of the defendants, but subsequently filed a supplemental pleading disclaiming a right to a deficiency judgment against any of the defendants other than the mortgagors. The bank thereupon made no answer to the complaint.

On February 20, 1914, the defendants Kennedy and wife filed a cross-complaint in the action in which they alleged that the bank, in consideration of the exchange of the properties before mentioned, assumed and agreed to pay all of the incumbrances on the Sno

bank moved to strike this complaint as coming too late, which motion the trial court granted. Bell appeals from the order evidencing the ruling of the court upon the mo

tion.

[1] Noticing first the appeal of the Grant County Bank, we are unable to find anything in the record upon which the judgment against it can rest. It was testified by both Davis and Kennedy that the property in Grant county, given in exchange for the property conveyed to the bank was the property of Davis, and that all of the negotiations leading up to the exchange were had between Davis and Kennedy and their representatives. Davis denied that a promise to assume the incumbrances was made by any person. Kennedy testified that the promise was made by Davis, but even he does not say that Davis made the promise for or as the representative of the bank. In fact, nowhere in the record, in so far as we can discover, was the bank's name mentioned in the transaction until all of the negotiations were concluded, and nothing remained to be done but execute and deliver the deeds. If the fact be that Davis

of the vacancies caused by the recall of all
art. 11, § 6, providing that the board of county
three of the commissioners of a county; Const.
commissioners shall fill all vacancies occurring
in any county office, not applying where the
offices of all the county commissioners become
[Ed. Note.-For other cases,
Cent. Dig. § 51; Dec. Dig. 43.]
see Counties,

vacant.

promised to assume the incumbrances, and I had power to appoint commissioners to fill two then caused the deed to run in the name of the bank, it would not of itself create a liability on the part of the bank to redeem the promise. Such a promise does not become merged in the deed and thereby bind the person to whom it is executed. Indeed, it is only on the principle that such a promise "is not merged in the deed, and is not contradictory, but independent, of it," that it can be enforced at all. Ordway v. Downey, 18 Wash. 412, 51 Pac. 1047, 52 Pac. 228, 63 Am. St. Rep. 892. The bank can be held only in the case that it promised to pay the incumbrances. It stands, therefore, in so far as the record discloses, precisely in the position it would have stood had the property been originally conveyed to Davis and by Davis subsequently conveyed to it.

We conclude, therefore, that the court was in error in entering a deficiency judgment against the Grant County Bank.

[2] On the appeal of the defendant Bell we do not feel inclined to disturb the order of the court. Whether the court would permit the defendant at that late day to come into the case was a matter largely within its discretion, and this court is not authorized to disturb its order unless it plainly appears that there was an abuse of such discretion. We cannot so find. While it is true no formal default had been entered against the defendant, yet he was so far negligent that to grant his request would compel the court to try the action anew.

En Banc. Appeal from Superior Court, Yakima County; E. B. Preble, Judge.

Quo warranto by the State, on the relation of Harold B. Gilbert, Prosecuting Attorney, against W. L. Dimmick and others. From judgment for defendants, relator appeals. Affirmed.

Harold B. Gilbert, of North Yakima, for appellant. Snively & Bounds, of North Yakima, for respondents.

MOUNT, J. This is a proceeding in quo warranto to determine which of two sets of persons claiming to be county commissioners of Yakima county are entitled to hold such office. The trial court concluded that the respondents, W. L. Dimmick, W. E. Coumbe, and Yancey Freeman, were the legally qualified commissioners, and entered a judgment to that effect. The relator has appealed therefrom.

The facts are not in dispute. It appears that prior to October 6, 1915, J. Lancaster, J. Stuart, and William Stahlhut, were the duly elected and qualified commissioners of [3] Moreover, the answer and cross-com-Yakima county. On that day a recall elecplaint discloses that its chief purpose is to charge the Grant County Bank with the payment of the mortgages. If the bank is liable for their payment, recovery can be had in an independent action. The order is not res judicata of any right the appellant may have in that respect.

The judgment is reversed on the appeal of the Grant County Bank, and the cause remanded, with instructions to so modify it as to relieve the bank from any personal liability for the obligations mentioned in the plaintiffs' complaint. On the appeal of Bell it is

affirmed.

tion was held in compliance with chapter 146 of the Laws of 1913, and these officers were all recalled. Under the provisions of section 13 of that act, the offices of all three of the county commissioners became vacant. Thereupon the Governor appointed Messrs. Dim

mick and Coumbe as commissioners for the

First and Second districts. These officers then qualified, and appointed Mr. Freeman as commissioner of the Third district.

Mr.

Freeman thereupon qualified as county commissioner. The question in the case is whether the Governor, under the Constitution and laws of the state, was authorized

MORRIS, C. J., and ELLIS and CHAD to appoint these commissioners in the place WICK, JJ., concur.

of those recalled.

Section 13 of chapter 146, Acts 1913, p. 461, after providing that after the recall of such officers and the vacancy of the offices caused

STATE ex rel. GILBERT, Pros. Atty., v. DIM- thereby, provides:
MICK et al. (No. 13202.)

(Supreme Court of Washington. Jan. 10, 1916.)
COUNTIES 43-COUNTY COMMISSIONERS
APPOINTMENTS TO FILL VACANCIES-POWER
OF GOVERNor.

Under Rem. & Bal. Code, § 8988, providing that the Governor has power "to see that all offices are filled, and the duties thereof performed," and in view of Laws 1913, p. 461, § 13, providing that, after the recall of an officer, the vacancy shall be filled as provided by the Constitution and laws of the state, the Governor

"And such vacancy shall be filled in the manner provided by the Constitution and the laws of the state of Washington, or the charter and ordinances of the municipality, as the case may be."

The Constitution (section 6 of article 11) provides:

"The board of county commissioners in each county shall fill all vacancies occurring in any county, township, precinct, or road district office of such county by appointment, and officers thus appointed shall hold office till the next gen