If he did not know thereof, it was because of his supine neglect." In the case of Jones v. Florence Mining Co., 66 Wis. 268, 28 N. W. 207, 209, 57 Am. Rep. 269, the Supreme Court of Wisconsin said: "The danger resulting from leaving loose stones or ore in the roof or sides of the mine is a danger which the employer may well impose the duty of guard. ing against upon those working in the mine. Such danger is the direct result of their operations, and they are always on the ground, and have better facilities for knowledge when a danger of that kind exists, and for removing the same, than the pit boss or captain of the mine; and there would seem to be no ground for holding that the owner of the mine may not impose such duty upon the miners themselves." In the case of Cherokee, etc., Co. v. Britton, 3 Kan. App. 292, 45 Pac. 101, the court said: "While it was its duty to provide him with a reasonably safe place to perform the labor he was engaged in, it was only bound to exercise ordinary care in providing for the safety of the men engaged in the mine so far as it could reasonably be expected. It was not an insurer against unforeseen accidents, which are liable to happen from the action of the weather, or the unanticipated slipping of earth, slate, coal, or stone from the walls or roof of the mine." In the case of Finlayson v. Utica M. & M. Co., 67 Fed. 507, 510, 14 C. C. A. 492, 494, the court used the following language: "It is the general rule that it is the duty of the master to exercise ordinary care to provide a reasonably safe place in which the servant may perform his services.

*

* But this rule cannot be justly applied to cases in which the very work the servants are employed to do consists in making a dangerous place safe, or in constantly changing the character of the place for safety as the work progresses. The duty of the master does not extend to keeping such a place safe at every moment of time as the work progresses. The servant assumes the ordinary risks and dangers of his employment that are known to him, and those that might be known to him by the exercise of ordinary care and foresight. When he engages in the work of making a place that is known to be dangerous safe, or in a work that in its progress necessarily changes the character for safety of the place in which it is performed as the work progresses, the hazard of the dangerous place and the increased hazard of the place made dangerous by the work are the ordinary and known dangers of such a place, and by his acceptance of the employment the servant necessarily assumes them." In Consolidated C. & M. Co. v. Clay's Adm'r (Ohio) 38 N. E. 610, 613, 25 L. R. A. 848, the court said: "Here the place was not furnished as in any sense a permanent place of work, but was a place in which surrounding conditions were constantly changing, and, instead of being a place furnished by the master for the employés, within the spirit of the

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decisions referred to, was a place the furnishing and preparation of which was itself part of the work which they were employed to perform." In the case of Oleson v. Maple Grove C. & M. Co., 115 Iowa, 74, 87 N. W. 736, the court said: "The doctrine that the master must provide a safe place has no application to a case where the place becomes unsafe during the progress of the work. As to such danger, the law only requires reasonable care to employ competent men and provide suitable material. * The employé is bound to take notice of the ordinary operations of familiar laws, and to govern himself accordingly. Failing to do so, he takes the consequences. He cannot charge such consequences upon the master when he can see that which is open and apparent to a person of ordinary intelligence." In Petaja v. Aurora Iron Min. Co., 106 Mich. 463, 64 N. W. 335, 66 N. W. 951, 32 L. R. A. 435, 58 Am. St. Rep. 505, the Supreme Court of Michigan said: "The claim of the plaintiff is that the master did not furnish a safe place to work. In our opinion, this place where the men were at work was an incident of mining. It was a result of the common work of the miner and the trammer, both of whose labor combined to make it. After the miner had loosened the ore and the trammer had removed it, it was ready for the timber men, who followed up, when notified, putting in sets, which enabled the process of mining to be carried further. The undisputed evidence shows that the trammers and miners had not put the newly opened space in condition for the timber men, and that the miners had not caused them to be notified that their services were required." In the case of Knight v. Cooper, 36 W. Va. 232, 14 S. E. 999, the Supreme Court of that state said: "If, as he stated on the second trial, the clearing away of fallen slate for the setting up of props was one of the things he had to do as a miner, then that was one of the ordinary hazards incident to his dangerous employment." In the case of Ohio & M. Ry. v. Pearcy, 128 Ind. 127, 27 N. E. 479, the court said: "And the employé is charged with the knowledge of such defects as he would have ascertained by the exercise of reasonable care and diligence in this behalf."

It will be seen by these cases that the exercise of diligence on the part of the servant to ascertain and protect against dangers that are liable to occur is regarded as one of his duties. Respondent's counsel cite, and apparently rely much upon, the case of Railway Co. v. Jarvi, 53 Fed. 65, 3 C. C. A. 433; but the decision of that case was made by the same court which decided the case of Finlayson v. Utica M. & M. Co., hereinbefore cited, and in the latter case the distinction was clearly pointed out between the facts of the Jarvi Case and those of a case like the one at bar. We think the instruction given by the trial judge as hereinbefore quoted was, as to the first portion thereof, indefinite,

uncertain, and confusing, and as to the last portion thereof an incorrect statement of the law.

Some other of the instructions are open to criticism, but what we have said regarding the one above quoted we think will afford a sufficient guide upon a new trial as to all.

As to the sufficiency of the evidence, we express no opinion. Owing to the large amount of incompetent evidence and the erroneous theory upon which the case was tried and the jury instructed, we feel that a new trial should be had.

The judgment of the honorable superior court is reversed, and the case remanded for a new trial.

MOUNT, C. J., and CROW and RUDKIN, JJ., concur.

DUNBAR, J. I dissent. On the first proposition, in relation to the admissibility of testimony, while the rule of a particular mine-if by "rule" is meant a regulation or law governing the operation of such mine only-would doubtless be inadmissible for the purpose of tending to prove or establish the rules in another mine, the whole testimony shows clearly that it was elicited and admitted for the purpose of proving a general custom of the mines in that locality, and of what was generally conceded to be the duty of miners, muckers, and inspectors, or shift bosses. This is plainly shown by the form of the question itself, for the question was not what was the rule of any particular mine there being several in that localitybut "generally among the Coeur d'Alene mines," showing conclusively that it was a general custom among miners that was sought to be proven. And, even if the question could possibly be considered so narrow, the answers to the question, which are not set forth in the majority opinion (and it is the answer to a question which constitutes prejudice, and not the question), make no attempt whatever to show a rule of any mine, but simply to prove what was expected of certain workers. The following excerpts from the testimony of the witness illustrate this idea: "Q. What is a miner? A. Well, a miner is a man that is supposed to take care of himself under ground. *** Q. What is a mucker? A. A mucker is one who shovels and sorts the ore. Q. Now, what is the difference between a miner and a mucker, if any? A. A miner is supposed to take care of the ground and bar it down and make it safe for the mucker, and the mucker is supposed to come in and clear the dirt up after it is broken down," etc.—all without reference to any particular mine. Certainly, if it was a custom in mines generally for muckers to rely on some one else to test all walls under which they worked, the respondent had a right to show that general custom on which he relied to defend himself against the charge of contributing

to his injury by not exercising the caution which an ordinarily prudent man would exercise under the circumstances.

Nor can I agree with the second proposition that the court erred in giving the instruction set forth in the majority opinion. In my opinion, it was nothing but the announcement of the universally accepted rule that the servant has a right to rely upon the presumption that the master will furnish him a reasonably safe place in which to work; and, if he has a right to rely upon it, then there is no duty of inspection on his part. The court instructed the jury that the servant, in entering into a hazardous employment, assumed the usual risks of the servant and those which are apparent to ordinary observation; that when he accepts or continues in the service with knowledge of the character of obstructions from which injury might be apprehended, he also assumes the hazard incident to the situation; and, further, that as to those which are not obvious, assumed by the employé, if the master had exercised reasonable care to guard against the defective condition of structures and appliances, he would still not be liable, and they would be classified as dangers that were apparent to observation. Now, the portion of the instruction which is objected to does not state that the burden is not imposed upon the servant under any circumstances to use diligence, for that portion of the instruction is with reference todefects in the structures or appliances, and to defects only. In fact, there is no question involved in this case about assuming any other kind of risks than a hidden defect, or a defect in the place which was furnished the respondent in which to work. The excerpts from the opinion in Anderson v. Inland Telephone, etc., Co., 19 Wash. 575, 53 Pac. 657, 41 L. R. A. 410, must be interpreted in the light of the subject under discussion, and it is as true now as it was then that it is a duty incumbent upon reasonable men to exercise in a reasonable manner the faculties of which they are possessed. But in that case it was found that it was the duty of the lineman, who was injured while climbing a telephone pole by coming in contact with a charged wire, to inspect the poles and wires, and that in the performance of his duty he was equipped with apparatus for that purpose; and it would therefore have been nothing but a reasonable exercise of prudence to have examined the wire before touching it. But in this case the duty of inspection rested with the mine owners. The next case cited-Olson v. McMurray Çedar Lumber Co., 9 Wash. 500, 37 Pac. 679– was a case where the injury was caused by the plaintiff getting his fingers mixed up with some live rollers with which he was working in a sawmill. There a man was working around dangerous machinery, where the danger was palpably obvious, and where he must have known that, if he did not

work with circumspection, he would be hurt. Hence we said, and said properly, that under such circumstances men's faculties and senses are given them for the purpose of self-preservation, and they must exercise them to a reasonable extent. The case of Steeples v. Panel, etc., Box Co. was where the plaintiff fell off of a platform on which it was his duty to work, and where there was no railing on one side; where he had worked about the premises for two months, and had been on this platform on prior occasions. It was simply held there that that was an obvious peril, which he ought to have taken notice of; and there could not very well have been any other holding in the case. The statement quoted that the plaintiff would be bound under the circumstances, if it was his duty as a reasonably prudent man to have made such an examination as would have resulted in the desired information, can have no bearing on this case; for it is well established here that, so far as the plaintiff's work was concerned, it had nothing to do with the wall above him, and it is also equally well established that the duty of inspection was not imposed upon him. Jennings v. Tacoma R. & M. Co. was a case where an employé of the motor company undertook to push a car out of the building, where the door through which he had, to pass was only 31⁄2 inches on each side wider than the car, and, instead of taking hold of the end of the car to push it out, he took hold of the side of the car, and when he came to the door he undertook to push himself through with the car, and was, of course, caught and hurt between the car and the door. It would be difficult to establish any parallel between that case and the one at bar. And so with all the other cases from this court relied upon by the appellant. These were all cases written by the writer of this dissenting opinion, and can readily be distinguished from the case at bar. They were all cases where the employés were hurt by reason of their negligence with regard to the thing which hurt them, when they were working with the thing which hurt them, and consequently must have had their attention called to the danger, the danger being obvious, and hence the duty of care devolved upon them.

But the distinction between the principles involved in those cases and the one at bar seems to me to be so plainly marked that it should not be overlooked. In this case there is no question of working with dangerous tools or around dangerous machinery, or of failing to exercise ordinary judgment in the transaction of the work, or of refusing to exercise the ordinary faculties of the mind; for the respondent was not hurt with anything with which he was working, nor did the manner of his work affect in the least degree the misfortune which overtook him. Hence the inapplicability of the cases cited. This distinction is very clearly an80 P.-50

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nounced in Kelley v. Mining Co. (Mont.) 41 Pac. 273, where, in the course of the opinion, the court said: "The plaintiff was employed at the time of the accident in running a tunnel in defendant's mine. He was doing this work under the immediate supervision and direction of John Sheehan, the foreman and manager of the mine. Sheehan was not working in the mine with plaintiff. The plaintiff was not engaged in creating a place on his own judgment, and at his own risk. He assumed the risks naturally attendant upon driving the tunnel. It was the duty of defendant to keep that part of the tunnel or place already created safe, by whatever reasonable means were necessary. If the plaintiff had been injured in the actual work of drilling or blasting in the face of the tunnel he was driving, he may have had no claim on the defendant for damages; for these were risks he assumed as a miner. But he did not assume the risk of defendant's failure to keep that part of the tunnel or place already created reasonably safe and secure. He assumed the risks incident to the work in front of him, and not the risks of defendant's failure to properly care for that part of the tunnel or place behind him, which he had completed, and turned over to the care and control of the defendant." It would be difficult to distinguish this case from the one at bar upon principle, and, as will be seen, they are almost identical on questions of fact. This case was cited with approval by Judge Morrow in the case of Bunker Hill & Sullivan Min. Co. v. Jones (C. C. A.) 130 Fed. 813, another case of injury in a mine. In that case it was said: "If the jury believed the testimony on the part of the plaintiff, the safety of his employment depended upon the proper timbering of the stope above and immediately adjoining the place where he was set at work. He was not employed as a timber man, but as a miner and machine man, or driller. It was no more a part of his duty to inspect the timbering above him, or the condition of the rock in the chamber above, according to the custom in that mine, than it would have been to inspect the track on the tunnel floor, or the cars in which the ore was carried out. Other men were detailed for that part of the work. The shift boss, whose orders he was obliged to obey, indicated the place in which he was to work. He entered upon the performance of his duties, and was warranted in the assumption that the necessary precautions had been taken by the defendant to prevent the caving and falling of rock from the stope above." And so it may be said here. This man was not employed even as a miner, who outranks him, but as a humble mucker, whose duty it was to keep his head down to his work, and pay attention to that and that only. There is no question involved here of obvious danger or dangerous machinery, or want of exercise of ordinary care on the part

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of the respondent, or anything of that kind. It must, in the nature of things, outside of the custom which was shown in this case, be the custom and the duty of mine owners to inspect these mines, so far as the caving of walls over the miners is concerned. There can be no shirking of that responsibility. According to the majority opinion, there was a joint duty or responsibility of testing here. Such a theory as that would prevent a recovery by unfortunate victims in mines under any and all circumstances; for if they did inspect, and were mistaken in their judgment about the danger, they could not recover, for the reason that the duty of inspection devolved upon them. If they did not inspect, they could not recover, because their duty was to inspect. Considering the character of the employment and the character of the people who are employed in mines, it is the last place where courts ought to begin to relax the rule of a safe place to be furnished to employés. This doctrine of safe place to employés, under conditions such as are shown in this case, is the doctrine that is sustained by every state in the Union, and by the courts of every civilized country, and both precedent and right demand that it should be continued in force.

The judgment should be affirmed.

(38 Wash. 528)

MCMANUS v. MORGAN et al. (Supreme Court of Washington. April 28, 1905.)

TAX

BY

DEED-VALIDITY - FORECLOSURE-SERVICE

PUBLICATION-STATUTES-CONSTRUCTION -SUIT TO CANCEL DEED AS CLOUD ON TITLEPARTY PLAINTIFF COMPLAINT — TENDER LIMITATION.

1. Under 2 Ballinger's Ann. Codes & St. § 5679, providing that, when an action is for the recovery of lands or other property sold for taxes, the complaint must state that all taxes, penalties, interest, and costs paid by the purchaser at the tax sale have been fully paid or tendered and payment refused, a complaint alleging that prior to the commencement of the action the plaintiff caused to be tendered to defendant as such purchaser the amount of all taxes, penalty, interest, and costs as purchaser at the sale, but that the defendant refused to receive the payment, is sufficient.

2. It is not necessary, under such statute, that the tender of the taxes, etc., should be paid into

court.

3. The holder of a certificate of purchase of real property on a mortgage sale is entitled to maintain a suit in equity to cancel a tax deed as a cloud on his title, under 2 Ballinger's Ann. Codes & St. § 5500, providing that any person having a valid subsisting interest in real property and a right to possession thereof may recover the same, and Laws 1899, p. 93, § 15, providing that a purchaser of property on a mortgage sale is entitled to possession thereof.

4. Under Laws 1897, p. 182, c. 71, § 96, providing that the holder of a certificate of delinquency shall give notice, as provided therein, to the owner of the property described in the certificate, that he will apply to the court for a judgment foreclosing the lien against the property mentioned, and section. 97, providing that summons shall be served in the same manner as summons in a civil action is served in the supe

rior court, a service by publication in an action to foreclose a lien for delinquent taxes is insufficient to give the court jurisdiction, where it is not made to affirmatively appear that personal service could not be made.

5. Purchasers of a tax title claiming real estate under foreclosure of their lien are not entitled to the benefit of the statute of limitations as against plaintiffs in a suit to cancel the tax deed as a cloud on the plaintiff's title, where there is no question of subsequent lien, though the plaintiff claims as purchaser at a subsequent mortgage sale of the premises under a mortgage, and the debt for which it was given had run more than six years, since, if the tax foreclosure proceedings were valid, the defendants were the absolute owners of the land freed from the mortgage lien, while, if they were not, they still had a prior tax lien which must be paid in full.

Appeal from Superior Court, Snohomish County; John C. Denney, Judge.

Action by A. E. McManus against A. W. Morgan and others. From a judgment for defendants, plaintiff appeals. Reversed.

McMurchie & Bundy and Robt. A. Hulbert, for appellant. Brownell & Coleman, for respondents.

MOUNT, C. J. This action was brought to remove an alleged cloud from plaintiff's title to real estate. The lower court sustained a demurrer to plaintiff's complaint. Plaintiff elected to stand upon the allegations of the complaint, and the action was dismissed. Plaintiff appeals.

The allegations of the complaint are, in substance, as follows: In 1889 W. W. Pettit and wife were the owners of the real estate in question. At that time the owners mortgaged the real estate to the Lombard Investment Company. Subsequently the mortgage became the property of the plaintiff, and he brought an action to foreclose it. On March 26, 1903, judgment of foreclosure was entered, and on May 9th of the same year the property was sold and bid in by the plaintiff, and the certificate of sale was issued to him. In January of 1898 the county treasurer of Snohomish county, where the land is located, issued certain certificates for delinquent taxes on the land in question for the year 1895 and prior years. This certificate was issued to one E. E. Warner, who thereafter commenced an action to foreclose such certificates under the provisions of the revenue law of 1897. In April of 1901 a judgment was rendered foreclosing the certificates of delinquency, and the property was sold and bid in by said Warner for the sum of $203.65, and on July 19, 1901, a tax deed was issued to Warner, who thereafter sold the property to the defendants. The complaint alleges that these tax foreclosure proceedings were void, for the reason that no notice of the application for judgment was ever given to said Pettits, who were the owners of the property at the time, but that an attempted service of notice was made by publication; that such notice was void, because there is no proof in the

record that said Pettits were nonresidents of the state, or could not be found therein, or that a copy of the notice was mailed to them, or that their place of residence was unknown. The complaint further alleged that, prior to the commencement of the action, the plaintiff tendered to defendants the amount of all taxes, penalties, interest, and costs paid for the said tax deed, which was refused. Respondents contend that the complaint is insufficient, first, because the amount of the tender was too small, and, second, because the money tendered was not paid into court. The allegation of the complaint upon this subject is "that prior to the commencement of the action, to wit, on the 14th day of May, 1903, this plaintiff caused to be tendered to the defendants the sum of $260.85, that being the amount paid by said Warner for all taxes, penalty, interest, and costs, as purchaser at said sale, but that the defendants then and there refused to receive such payment."

The statute in relation to cases of this character provides that, when the action is for the recovery of lands or other property sold for taxes, the complaint must state "that all taxes, penalties, interest, and costs paid by the purchaser at tax sale, his assignees or grantees, have been fully paid or tendered and payment refused." Section 5679, 2 Ballinger's Ann. Codes & St. It will be noticed that the language of the complaint follows substantially the language of the statute. Under the rule that all reasonable intendments shall be made in favor of the pleading, we think it sufficiently appears that all taxes, penalties, etc., have been tendered and payment refused. Chambers v. Hoover, 3 Wash. T. 107, 13 Pac. 466; Harris v. Halverson, 23 Wash. 779, 63 Pac. 549.

It was not necessary in a case like this that the tender should be paid into court. The statute does not expressly require it. This is not an action at law to recover money, but is an action in equity, where the court will only grant the relief prayed for upon condition that the plaintiff will pay the full amount of taxes, penalties, interest, and costs which were paid by the purchaser at the original sale, and also all taxes, with interest, paid by the purchaser or his assignee since the sale, and will generally grant equitable relief. Webster v. French, 11 Ill. 254; Glos v. Goodrich, 175 Ill. 20, 51 N. E. 643; Hayward v. Munger, 14 Iowa, 516; Crawford v. Liddle (Iowa) 70 N. W. 97; Whelan v. Reilly, 61 Mo. 565.

Respondents next contend that, under the allegations of the complaint, appellant's title is insufficient to sustain the action. The complaint shows that the appellant became the purchaser of the lands by mortgage foreclosure sale on May 9, 1903, and that this action was begun five days thereafter, and before appellant was entitled to

a deed. The statute provides that "any person having a valid subsisting interest in real property and a right to the possession thereof may recover the same," etc. Section 5500, 2 Ballinger's Ann. Codes & St. When appellant purchased the real property upon mortgage sale, he became entitled to the possession thereof. Section 15, Laws 1899, p. 93. He thereby acquired all the title to the mortgaged property which the mortgagors had. This title could be defeated only by redemption or another sale; but, until a resale or redemption, the purchaser was for all purposes the owner. He certainly had a valid, subsisting interest in the property. In Diamond v. Turner, 11 Wash. 189, 39 Pac. 379, this court said: "Until the sale had been set aside, a certificate of purchase would be as fully protected as though the legal title had been conveyed by deed made in pursuance of the statute." This language is particularly applicable to this case.

Respondents next contend that the tax title is valid. This is the principal question presented upon this appeal, and the one relied upon apparently in the court below. It depends upon whether or not the court had jurisdiction to render the decree of foreclosure in the tax proceedings, where the certificate of delinquency had been issued by the county to a private person. The complaint alleged that the only notice given in that action was by publication, and that none of the facts are shown to exist by which notice of publication was authorized. It is universally held that, in all proceedings where notice is required, the notice provided by statute must be given, and, if such notice is not given, the court acquires no jurisdiction. State ex rel. Boyd v. Superior Court, 6 Wash. 352, 33 Pac. 827. And: "It is generally held that, where process is served by publication, the record should show affirmatively that all the statutory requirements regarding service by that method have been complied with." 17 Enc. Pl. & Pr. 47-50. The statute in force at the time the tax foreclosure proceedings were instituted, and under which they were prosecuted, is found in Laws 1897, p. 136, c. 71. That statute, at section 96, p. 182, provides: The holder of any certificate of delinquency shall give notice to the owner of the property described in such certificate that he will apply to the superior court of the county in which such property is situate for a judgment foreclosing the lien against the property mentioned." The statute then describes what the notice shall contain. The next section provides: "Summons shall be served in the same manner as summons in a civil action is served in the superior court." There was no other provision in the act designating the kind of service which should be made. It is argued by respondents that the act of 1897 in reference to taxes is a special act, and that the provision, "Summons shall

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