PARKER, J. This is a proceeding in the marriage the deceased sold the furniture; the administration of the estate of Sarah A. exact amount which she received therefor being Buchanan, deceased, wherein Earl McCoy, a deceased James Buchanan had been a laborer unknown to the court. Prior to his marriage to son and heir of deceased, seeks to have working in various sawmills in the state of brought into the estate and administered as Washington and British Columbia for a period part thereof certain property which he claims of about four years, and had saved but little. was the community property of his deceased Clinton' McDaniel in April, 1901, executed if any, money. James Buchanan and one mother and her husband, James Buchanan, articles of incorporation of the Puget Sound at the time of her death, which property Lumber Company, being filed on April 11, 1901. James Buchanan claims as his separate prop-On April 13, 1901, James Buchanan paid inerty, and that it is therefore not subject to payment for six shares of its capital stock, and to the treasury of the said company $600 in administration as part of the estate of the deceased and James Buchanan then went to community. The relief prayed for by Earl Victoria, British Columbia, and were married McCoy is, in substance, that James Buchan- on April 15, 1901, and continued to live toan, who is the administrator of the estate of Three hundred dollars additional was paid in gether as husband and wife until her death. deceased, be required by the court to inven- by James Buchanan in payment of three adtory this property and administer the same ditional shares of stock in said company in as the property of the community which was August, 1901, and in July, 1902. James Buchdissolved by the death of Sarah A. Buchanan. anan at all times after the mill was put into operation, and until the death of his wife, Issues were joined and trial had upon the Sarah A. Buchanan, devoted his entire time merits, before the superior court without a and attention to work in connection with the jury, resulting in findings and judgment as operation of said mill. Of the sum of $900 in money paid for said stock $500 or more of the prayed for by Earl McCoy, from which James same was paid with money furnished by the deBuchanan, both personally and as adminis- ceased, and not more than $400 of said money trator, has appealed. The principle question, was furnished by the said James Buchanan. and the only one which we deem it necessary in payment for stock on April 13, 1901, was The money furnished by the deceased and paid to here notice, is: Was the property the furnished by the deceased in contemplation of community property of deceased and James an immediate marriage with the said James Buchanan at the time of her death? Buchanan and for the purpose of helping finance the said lumber company as a community enterprise, and the remaining money was paid for the same purpose. The said lumber company was financed to a large extent by borrowed money raised from notes signed by the corporation and by the members thereof, including James Buchanan, and largely by the use of money so borrowed the original mill was practically rebuilt or changed several times, greatly increasing its value and capacity, and one time after it had been destroyed by fire it was eninsurance, and partly from money so borrowed. tirely rebuilt, partly from money collected from The capital stock of said company was divided into 50 shares of par value of $100 each, and about the year 1909 16% shares had been issued and stood in the name of James Buchanan, 16% shares had been issued to and stood in the name of Wade Hampton, and 16% shares had been issued and stood in the name of E. V. Wintermote, who had purchased the stock formerly owned by Mr. Daniel, and about said time James Buchanan and Mr. Wintermote purchased the stock of Mr. Hampton for $17,000, paying him therefor in cash out of the corporate funds, but said time Mr. Hampton delivered his certificates of stock to the officers of the company, and since said time no transfer has been made of said certificates, and at the time of the death of said deceased, and continuing to the present time, all of the outstanding stock was owned by the community composed of Mr. Buchanan and the deceased, owning one-half thereof, and Mr. Wintermote, owning the remaining one-half. Through the money borrowed on the credit of James Buchanan and the other members of the said lumber company while the deceased and James Buchanan were husband and wife, and through the work, energy, and skill and management of the said mill by the said James Buchanan and his associates during the time that Mr. Buchanan and said deceased were married, the said mill plant and equipment increased many times in value. A dividend of 30 per cent. upon the capital stock was declared in 1905, and the same, amounting to $500, was credited to the account of James Buchanan upon the books of the company in the same account in which the

The trial court made findings covering the facts in considerable detail. Contention is made in behalf of appellant that these findings are not in accordance with the evidence in a number of particulars. Because of the nature of the case, we have deemed it wise to look to the evidence as found in full in the statement of facts as certified by the court, rather than to the abstracts thereof prepared by respective counsel, in which they seem to be at variance. We have therefore read all of the evidence as found in the statement of facts, and are convinced therefrom that we should now take the same view of the facts as the trial court did, especially since the court's conclusions rest largely upon the oral testimony of witnesses whose credibility is involved; in other words, we cannot say that the evidence does not preponderate in favor of the court's findings. We shall not analyze the evidence here, but state the facts, in substance, as found by the trial court, and some additional facts which we think the record shows and are worthy of note. The quotations in our statement following are from the findings:

Sarah A. Buchanan was married to James Buchanan on April 15, 1901. She was then a widow, and had five children living, one of whom was Earl McCoy, the petitioner in this proceeding. "Shortly prior to her marriage to James Buchanan and in January, 1901, the deceased sold a timber claim then owned by her as her sole and separate property, and received therefor the sum of approximately $885 over and above all sums necessary to pay incumbrances upon said property, and prior to her marriage she was the owner of the furniture in the hotel known as the Brunswick Hotel, located on East Twenty-Fifth and D streets, in the city of Tacoma. Said hotel had from 30 to 36 rooms furnished, and the furniture was

IN RE BUCHANAN'S ESTATE

131

and out of this fund the community expenses | property, in so far as such interest is eviof the deceased and Mr. Buchanan were paid. denced by one-half of the capital stock thereDeceased and James Buchanan did not in their lifetime treat said property as the separate prop-of standing in the name of James Buchanan. erty of either of them, but as their community Of course, this stock is personal property, property, and, when compared to the value of and it may also be noted that the property said mill plant at the time of the death of de- of the corporation is now, and at all times ceased, the original investment in said stock was so small, and its part in creating the final has been, substantially all personal property. result was so uncertain and insignificant, that, Some of these facts may seem irrelevant, but taken in connection with the impossibility of we think none of them are wholly so, in view ascertaining its proportion in the value of the capital stock or of said mill at the time of her of the involved nature of our problem. death, and the fact that the salary of the said James Buchanan in conducting said mill and the dividends derived from said stock were intermingled, whatever of separate funds entered into said property was so intermingled with the community property as to have lost its identity and separate character, and all of said stock and all interest in the said mill plant constituting a one-half interest therein was the community property of the said deceased and Mr. Buchanan at the time of her death."

We do not overlook the fact that the conclusions of the court as to the property being community property, in the above-quoted portions of the findings, can hardly be regarded as findings of fact, but rather as conclusions of law. We therefore do not adopt them as findings of fact. Sarah A. Buchanan died April 12, 1911, within three days of ten years after her marriage to James Buchanan. Thereafter James Buchanan was duly ap

pointed administrator of her estate and that of the community which was dissolved by her death.

The facts above summarized are gathered from the findings of the court. There are other facts shown by the record which we deem also worthy of note here, as follows: The Puget Sound Lumber Company was during the lifetime of Sarah A. Buchanan what might be designated a close corporation; its stock being owned by those very few persons who were actively engaged in promoting its business. Indeed, when the manner of its operation and financing is considered, it might be said to have been operated much as a partnership, though it can hardly be said that it was not technically a corporation. James Buchanan was at all times its active manager and one of its principal officers; and, while he received a salary, as appears from the books of the company, the growth of its business and the accumulation of its property were manifestly the result of his personal efforts apparently more than that of any one else, and in any event much more than the result of the small amount of capital invested at the beginning by himself and wife. He was manifestly more than a mere employé for wages or salary. His whole attitude and demeanor towards the business of the company points to his efforts in its management as being more for the purpose of making money as a part owner thereof than as being interested only in receiving wages or salary for his work as an employé. The property here involved is a one-half interest in this corporation, its business and

Counsel for appellant rely upon that line of decisions holding that the status of property as to its being community or separate is determinable from its status at the time of its acquisition by either member of the community, and that its "rents, issues, and profits" go to its owner. Counsel proceed upon the theory that this stock was the separate property of appellant in the beginning because of his claimed ownership of the money which then purchased it, and that its increased value because of the growth of the business and property of the Puget Sound Lumber Company also became his separate property. In this behalf our attention is called to the decisions of this court in Webster v. Thorndyke, 11 Wash. 390, 39 Pac. 677, Harris v. Van De Vanter, 17 Wash. 489, 50 Pac. 594, Guye v. Guye, 63 Wash. 340, 115 Pac. 50, Hester v. Stine, 46 Wash. 469, 90 Pac. 731, 37 L. R. A. (N. S.) 186, Teynor v. Heible, 74 Wash. 222, 133 Pac. 1, 46 L. R. A. Wash. 514, 137 Pac. 1009, which decisions (N. S.) 1033, and In re Deschamp's Estate, 77 value thereof during coverture, and crops have to do with real property, the increased raised thereon, and also with live stock and their natural increase. The theory and nature of counsel's argument is evidenced by their quotations from our decision in Guye v. Guye, supra, at page 348 of 63 Wash., at page 734 of 115 Pac., as follows:

"Counsel argue, however, that the natural enhancement in the value accruing while the marital relation existed should be treated as tracts adjudged to be separate property by the community property. They point out that the trial court have enhanced in value practically $350,000 since the marriage of the appellant and Francis M. Guye, and contend that it is propand intent of the statute. erty acquired during marriage within the spirit But we think this contention untenable also. Since by the statute the spouse owning separate property is enso such owner must be entitled to the natural titled to the rents, issues, and profits thereof, increase in value, as such increase is as much the issue of such property as would be the rents the ownership of a specific tract might be conderived therefrom. So also, under such a rule, stantly changing. As long as its value remained stationary or decreased it would be separate property. But the moment it increased in valpart separate and in part community. And so. ue it would become mixed property; that is, in again, property that is separate property to the next day again be separate property, owing day might be mixed property to-morrow, and on to its fluctuation in value. We cannot think this meaning of the statute. We think the statute meant to declare that a specific article of pererty, once the separate property of one of the sonal property, or a specific tract of real prop spouses, no matter how it may auctuate in val

its property, to be shared in equally by the members of the community, and to follow the channels of devise and descent provided by the statute."

ue, remains so, unless, by the voluntary act of the spouse owning it, its nature is changed." We are unable to gather from these observations of the court any rule more favorable to counsel's contention than that specific real or personal property, once becoming separate property, remains so, unless by voluntary act what as it is here, and was reviewed at some length. Justice Leonard, speaking for the court, observed:

of the spouse owning it its nature is changed. But this, it seems to us, does not solve the question of when profits or gains resulting largely from personal efforts of one of the spouses becomes separate or community property. It is by no means always clear that such profits and gains are or are not rents, issues, and profits of separate property, though separate property may have, in a measure, contributed to such gains.

In Lake v. Lake, 18 Nev. 361, 392, 4 Pac. 711, 728, the question was presented some

mainly from the property, rather than the joint "And in this or any other case, if profits come efforts of the husband and wife, or either of them, they belong to the owner of the property, although the labor and skill of one or both may trary, if profits come mainly from the efforts or have been given to the business. On the conskill of one or both, they belong to the community. It may be difficult in a given case to determine the controlling question, owing to the equality of the two elements mentioned, but The property here involved is not real we know of no other method of determining to property; nor do we think that the original whom the profits belong. In the use of sepainvestment from which in a measure it comes rate property for the purpose of gain, more or was in any event at the beginning more given, no matter what the use may be; and yet less labor or skill of one or both must always be than four-ninths the separate property of the profits of property belong to the owner, and appellant; five-ninths at least being the then in ascertaining the party in whom the title separate property of deceased. Nor can we rests the statute provides no means of separatconcur in the view that the some twentyfolding that which is the product of labor and skill from that which comes from the property alone." increase in value of this original investment resulted as a natural increase apart from The following decisions, while not directly the personal efforts of appellant while a in point, we think, lend support to this view: member of the community. We are constrain- Abbott v. Wetherby, 6 Wash. 507, 33 Pac. ed rather to the view that such change, in- 1070, 36 Am. St. Rep. 176; Sherlock v. Dencrease, and growth in the business and its ny, 28 Wash. 170, 68 Pac. 452; Beggess v. property was very much more the result of Richards' Adm'r, 39 W. Va. 567, 20 S. E. 599, the personal efforts of appellant during the 26 L. R. A. 537, 45 Am. St. Rep. 938; Penn ten years of his married life, in the perform-V. Whitehead, 17 Grat. (Va.) 503, 94 Am. Dec. ance of which he was the servant of the community. As we view it, we are then confronted with the question: What was the principal producing cause of these profits and gains? This may not be a very exact or satisfactory rule of determining whether property is community or separate. But, where a small original investment of separate funds is united with the personal efforts of a member of the community, and therefrom profits and gains to the extent of some twentyfold are returned, the property being personal and undergoing many changes, we know of no other rule by which the question of such gains being community or separate property can be determined, other than by taking into account the relative contributing force of the original investment and the personal efforts of a member of the community. The authorities do not furnish us much light upon this question in so far as decisions directly in point are concerned. However, in Yesler v. Hochstettler, 4 Wash. 349, 366, 30 Pac. 398, 403, observations were made by Judge Stiles, speaking for the court, quite in harmony with this view as follows:

478; Glidden, Murphin & Co. v. Taylor, 16 Ohio St. 509, 91 Am. Dec. 98.

It may also be said that our decision in Katterhagen v. Meister, 75 Wash. 112, 134 Pac. 673, and decisions therein noticed are in harmony with our conclusions here reached touching the question of investments of funds borrowed during coverture becoming community property, though borrowed upon the credit of one spouse; the theory being that such gains are the product of community individual efforts.

These observations, we think, in any event lead to the conclusion that the gains and profits produced by the personal efforts of appellant, though added to, in a measure, by the original investment, become community property. We agree, however, with the trial court that the funds, though at the beginning separate property of appellant and Sarah A. Buchanan, in the proportion of four-ninths and five-ninths, which purchased the stock in the first instance, have during the ten years of coverture become so intermingled with community property and lost their identity as separate property that all of the stock and interest in the Puget Sound Lumber Company "In this case the land purchased with the borrowed money paid for itself, and a large profit standing in appellant's name became the comin land and money besides. It was a specula-munity property of appellant and his deceastion purely personal in which the energy, skill, and business prudence of Mrs. Yesler certainly were greater factors than the credit given by the mortgage of her land. But these mental forces, whether of husband or wife, are servants of the community, and their products are

ed wife, Sarah A. Buchanan.

The proper disposition of the case is fraught with great difficulty, but upon the whole record we cannot escape the conclusion that the trial court properly disposed of the rights of

the parties, and that its order and judgment & Hughes, all of Seattle (Hyman Zettler, of must be affirmed. Seattle, on rehearing), for respondent.

MORRIS, C. J., and MAIN, HOLCOMB, | judgment for the plaintiff entered after deniand MOUNT, JJ., concur.

F. V. Brown and F. G. Dorety, both of Seat-pellant argues the point, coupled with the tle, for appellant. Jas. McCabe and Higgins somewhat novel character of the grounds

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

urged and their evident importance to appel- | use of fusible plugs as a means of preventing lant, have impelled us to give as briefly as explosions and as to the presence or absence possible the reasons why we are unable to of scale on the crown sheet. The reliability accede to the arguments advanced. of respondent's witnesses and the sufficiency and consistency of their testimony are all questions which the verdict precludes us from reviewing.

The essence of appellant's contention is that the condition of the crown sheet, bolts, and flues after the explosion shows conclusively as a scientific fact that the explosion [4] The most serious contention aside from could not have been due to any other cause the questions of evidence just discussed, is a than low water. Appellant introduced the claim that a new trial should be allowed betestimony of over a dozen boiler makers, mas- cause of misconduct of respondent's counsel ter mechanics, boiler inspectors, and others, in questioning appellant's witness Dowling, all of whom stated positively that the con- superintendent of safety for the Great Northditions after the explosion conclusively show-ern, concerning the report of the federal ined low water as the cause. We do not agree, spector on this accident. The use of these however, that this testimony established un- reports or any part thereof "for any purpose disputed scientific facts. The evidence at in any suit or action for damages growing best was of a negative character, and the out of any matter mentioned in said report statements of the witnesses were their opin- or investigation" is, by statute (Act Feb. 17, ions drawn from their previous experiences. 1911, c. 103, § 8, 36 Stat. 916 [U. S. Comp. St. Because they had never known the conditions 1913, § 8637]) made unlawful. During the shown here to occur except from a low-wa- cross-examination of the witness, counsel for ter explosion, they concluded that they could respondent asked him whether he considered not result otherwise. On behalf of the re- the government inspectors were wrong in spondent, one Hanson, fireman on the engine their conclusions, if their report on the acciwhen the explosion occurred, testified posi- dent stated that certain conditions found aftively that the water glass showed sufficient ter the explosion could not have resulted water on the crown sheet to prevent an ex- from a low-water explosion. After the explosion. An effort was made to impeach this amination had proceeded for some time and testimony by introducing a statement pre- the witness had had several features of the pared by the attorneys for appellant and ac- report stated to him and had been asked his knowledged as correct by Hanson while he opinion as to the worth of the conclusions, was in the hospital after the explosion. appellant's counsel objected to the line of Hanson denied any knowledge of this state- cross-examination, but did not base the objecment, claiming that he was unconscious for tion on the inadmissibility of the report. Redays after the explosion, and had made no spondent's counsel was stopped, whereupon such statements at any time. The credibility he attempted to put the report in evidence. of his testimony was clearly for the jury. The offer was refused. Under the federal We have, then, the evidence of the only wit- law the report was absolutely inadmissible, ness who was in a position to know positive- but we do not believe that appellant is in a ly whether there was water in the boiler, to position to complain of the conduct of rethe effect that the water glass indicated suffi- spondent's counsel in asking the witness cient to prevent a low-water explosion. Op- about the report. In his opening statement posed to this is the testimony of a large num- appellant's counsel stated to the jury: ber of capable experts that the explosion could have been due only to low water. Under such conditions, it was clearly competent for the jury to determine that the testimony of Hanson was entitled to greater weight than that of appellant's witnesses. We conclude that on this ground appellant was not entitled to judgment, and that the denial of a new trial was not an abuse of discretion.

"We will show that whenever an accident of this kind happens it is reported to the United and reports printed and published, and the data States government and an inspection is made is available so that the plaintiffs can have access to it and produce it if they so desire, as correct."

The

Respondent was justified in construing this as a challenge to produce the report. fact that the error, if any, was thus invited by appellant, and his failure to object on the ground of the inadmissibility of the report until the harm, if any, had been done, force us to the conclusion that appellant cannot now complain that he was prejudiced by the action of respondent.

Appellant contends that, even if it be found that the evidence of low water was a question for the jury, nevertheless the evidence did not show any negligence on the part of the appellant. Coupled with this contention is an attack on the character of respondent's expert testimony. The contention is not [5] The verdict awarded respondent $8,500. made that there was a total lack of evidence | Appellant now contends that this amount is of negligence, and there being some evidence | excessive and conclusive proof that it was that the button head bolts have a tendency influenced by passion and prejudice. At the to become overheated by an oil flame and al-time of his death the deceased was earning low the crown sheet to give, which would result in an explosion, it was for the jury to say, whether their use under such circum

about $175 per month. He was living with his mother and furnishing $75 per month or more to maintain the home kept for him by