ment would certainly establish a loss, at least to the extent of its value. The execution of a note in exchange for satisfaction is in legal effect equivalent to the exchange of property therefor. It confers a right to invoke legal process to seize and levy upon property in value equal to the amount of the note. This precise question under a policy identical with this one was determined adversely to appellant's contention in Kennedy v. Fidelity & Casualty Co., 100 Minn. 1, 110 N. W. 97, 9 L. R. A. (N. S.) 478, 117 Am. St. Rep. 658 [10 Ann. Cas. 673]. We quote the following pertinent language from the opinion in that case: 'But the whole argument of appellant rests upon the claim that the mere giving of the notes did not amount to a loss actually sustained, for the reason that the maker of the notes and the guarantor might never be called upon to make payment, might become insolvent, that there is no certainty they will ever be paid, and, if not paid, there is no loss actually sustained. This means that the party assured, no matter what his financial condition might be, would be compelled to raise the actual cash within 60 days and pay it to the judgment creditor, or be foreclosed from enforcing the indemnity against the company. If the position is sound, the money could not be raised by borrowing at a bank, or at any other place, upon promissory notes secured either by a signer or by property, because, before the notes became due, the in value, or the parties might become insolproperty might become worthless, deteriorate vent, and no actual payment ever be made;

evidence is insufficient to show a loss actu- | ance of property in satisfaction of the judgally sustained and paid by the respondent in satisfaction of a judgment, within the meaning of the conditions of the policy. It is not denied that a judgment may be paid and satisfied by a judgment debtor by the giving of a promissory note for the amount thereof to the judgment creditor, but the contention is that the note must be given in good faith, having in view the purpose and object of payment, with the intent that the note shall afterwards be paid, and that these elements are wanting in the instance before us. But we fail to discover in the evidence anything that seems to justify this conclusion. The direct evidence of the parties making the settlement is to the contrary, and it will be remembered that the terms of the proposed payment and satisfaction were made known by the administratrix to the judge sitting in probate and received his sanction and approval before the settlement was made. It seems to us that this latter fact is alone sufficient to dispel any idea of bad faith that might arise from the transaction itself, and sufficient to require some direct and cogent proof of bad faith before it can be held that the transaction is not what it purports to be. It is true that the note was not secured, and the respondent apparently had sufficient property out of which the judgment could be made. But the company's other liabilities were not shown, and to have levied upon the property would certainly have destroyed the respondent's business, and possibly forced it into bankruptcy when but a partial satisfaction of the judgment might be obtained, whereas it may be paid in full by the present arrangement. It is no answer to say that the note may never be paid at all, or that it may be compromised and settled for less than its full amount after the assured is reimbursed by the surety company. This can happen no matter how the note is paid. Had the assured paid the judgment in cash out of its own funds, or paid it in money borrowed from another, there could be a secret agreement to repay it, or some part of it, to the assured after the collection is made from the insurance company. But this is beside the question. The real question is, Is there such an agree- ference in the method, and in either case it Logically there is no difment? And before this question can be an amounts to a payment and satisfaction of swered affirmatively, there must be some sat- the judgment. If the assured accomplished isfactory evidence to that effect. In this the satisfaction and payment of the judg record, as we say, there is no such evidence. ment by executing and delivering the promisThat a note given in satisfaction of a sory notes above described, the good faith of judgment may amount to a loss actually susthat transaction was hardly open to questained and paid within the meaning of an tion, even though it gave the assured the insurance policy containing such a condition advantage of collecting from appellant comwas held by us in Seattle & S. F. R. & Nav. pany the amount of insurance before the Co. v. Maryland Cas. Co., 50 Wash. 44, 96 notes came due.' The good faith attending Pac. 509, 18 L. R. A. (N. S.) 121. In that the execution of the note in the case at bar case we said: "The argument is made that is manifest from the record, and, as said in there is no loss within the meaning of the the above case, that matter is not open to above until cash has been actually paid in question, since, by means of the note, the

hence no loss. Fairly construed, the language means simply that the judgment must date of its entry, and, when such judgment be paid and satisfied within 60 days from is paid or satisfied, the loss is actually sus tained. Of what consequence is it to the company whether respondent has on hand immediate cash to pay the judgment, or borrow that amount on the most favorable whether the judgment debtor is compelled to terms, or whether he makes the payment and secures the satisfaction by the execution of promissory notes running direct to the judgment creditor?

payment of a valid judgment. The Minne- [4] As written, the contract is broad enough sota case cited is also reported in 9 L. R. to cover a loss sustained by the assured A. (N. S.) 478. In a note following the case from an accident arising because of a violaas there reported is the following statement: tion of a speed ordinance by one of its au"The conclusion reached in the above case tomobile drivers. The only question that is that the giving of a note amounts to a loss open to the appellant, therefore, is whether actually sustained by the person indemnified such a contract is void as against public within the meaning of a contract of indemni-policy. ty, where the note is accepted by the creditor as actual payment and satisfaction of the original debt, has the sanction of all the authorities.' In support of the statement the following authorities arè cited in the note, all of which we have examined and find to be in point: Bausman v. Credit Guarantee Co., 47 Minn. 377, 50 N. W. 496; Lee v. Clark, 1 Hill (N. Y.) 56; Wilson v. Smith, 23 Iowa, 252; Gardner v. Cooper, 9 Kan. App. 587, 58 Pac. 230, 60 Pac. 540; Pasewalk v. Bollman, 29 Neb. 519, 45 N. W. 780, 26 Am. St. Rep. 399; Flannagan v. Forrest, 94 Ga. 685, 21 S. E. 712." The evidence of good faith in that case was, if there is a difference, less direct than the evidence in the case at bar, and the conclusions there reached is direct authority for the same conclusion here.

[2] It is further suggested in this connection that the judgment was not paid within 90 days from the date of its rendition. But it was paid within 90 days from the time of its affirmance by this court, and we think this within the meaning of the policy. To construe it otherwise would render the conditions of the policy contradictory and unenforceable, since the company is elsewhere granted the right to appeal in cases where it takes upon itself the defense of the action. If it does appeal, then clearly the maturity of the contract must be postponed until judgment is reached on the appeal, else the appeal is rendered nugatory.

[3] The appellant next contends that there can be no recovery over against it by the respondent because it appeared on the trial of the original cause that the liability of the respondent arose from a violation on its part of the ordinances of the city of Spokane fixing the limit of speed at which an automobile may be driven on the streets of that city. But this question is hardly open to the appellant in the broad aspect in which it is presented by it. The policy contained no condition purporting to exempt the insurance company from liability for an accident caused by the violation of a speed ordinance on the part of the assured; the effort to insert such an agreement in the policy was by parol. We are clear that this was not permissible. The appellant was not a mere common-law surety. On the contrary, it fixed the limits of its liability by a written contract elaborate and minute in its details. Having reduced its agreement to writing, it cannot, of course, add to, limit, or otherwise vary the terms thereof by showing a parol contemporaneous agreement on the

Answering this question, we are clear that the contract is not so void. Undoubtedly a contract indemnifying another against consequences arising from willful violations of a statute, or from the commission of crime generally, committed by the assured himself, is void for the reason given, but one may lawfully insure another against the consequences of such acts committed by his servants and employés, if such acts are not directed by or participated in by the assured. If this were not so, bonds taken to insure against the misappropriation or embezzlement of funds by employés generally would be void, and we need not go beyond our own decisions to find authority to sustain obligations of this character.

[5] The question suggested in the third affirmative defense is not seriously pressed in this court. Indeed, it would seem that the defense was not open to the appellant in this action. It had charge of the action for damages, and, if other causes than the wounds inflicted by the automobile caused the death sued for, it should have been made a defense in that action. Failing to urge it there, or urging it and suffering defeat, estops the appellant from urging it as a defense here.

[6] Finally, it is claimed that the respondent violated that clause of the policy requiring it to render such co-operation and assistance in the defense of the action as lay in its power. It appears that, at the inquest held on the death of Burger, counsel who generally represented the respondent appeared and questioned certain of the witnesses, among whom was an officer of the responent. In his examination at that hearing the officer, in answer to questions of counsel, made certain statements concerning the instructions given the different automobile drivers with reference to their duties, which conflicted with his evidence at the trial of the action for damages, and this fact was shown in the latter trial by way of his im peachment. It is this conduct of the respondent's officer that is thought to violate the condition of the policy referred to. But it does not appear that the officer willfully testified falsely at the inquest, or that his testimony was anything more than the result of a mistake on his part. Nor is it shown that it in any way affected the verdict of the jury. Clearly under such circumstances it would be a harsh remedy to avoid the policy.

There is no reversible error in the record and the judgment will stand affirmed.

CROW, C. J., and MORRIS, MAIN, and

(73 Wash. 640)

NYE v. PATTERSON. (Supreme Court of Washington. May 27, 1913.)

1. MASTER AND SERVANT (§§ 288, 289*)-SAFE PLACE TO WORK-ASSUMPTION OF RISKEVIDENCE.

Evidence, in a servant's action for personal injuries, held sufficient to go to the jury on the issues of the servant's assumption of risk and contributory negligence.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1068-1088. 1089, 1090, 1092-1132; Dec. Dig. §§ 288, 289.*]

2. DAMAGES (8_132*)-EXCESSIVE DAMAGES INJURIES TO FOOT.

A judgment for $1,500 for injuries to a 19 year old boy, resulting in the loss of a big toe and in five weeks' disability, during which a liability of $150 for medical treatment and nursing was incurred, is excessive, and should be reduced to $1,000.

[Ed. Note. For other cases, see Damages, Cent. Dig. §§ 372-385, 396; Dec. Dig. § 132.*]

CROW, C. J. Action by Ralph E. Nye, a minor, by his guardian ad litem, against W. E. Patterson, to recover damages for personal injuries. The jury returned a verdict for $1,500 in plaintiff's favor, upon which judgment was entered. The defendant has appealed.

that appellant was negligent in failing to furnish him a safe place to work, and in failing to instruct him as to dangers incident to his employment. Appellant pleaded the defenses of an assumption of risk, and contributory negligence.

[1] The principal question on this appeal is whether the trial court erred in denying appellant's motions for a directed verdict, and for judgment notwithstanding the verdict; appellant's contention being that respondent assumed the risk of apparent dangers incident to his employment, and was guilty of contributory negligence. It is conceded that the opening existed at the bottom of the rollway where respondent was working, and that he was injured by reason of his foot passing through it and coming in contact with the saw while he was performing his duties as off-bearer, in the usual and Appellant insists that recustomary way. spondent saw, or by the exercise of reasonable care should have seen, the opening, and could have avoided the injury. Whether the danger was latent or apparent was for the jury to determine from conflicting evidence. Respondent's evidence was that his attention had not been called to the opening; that he did not know it existed; that there was nothing to call his attention to it; and that his first knowledge of its existence was obtained when his foot came in contact with the saw. This evidence in material points is corroborated. Upon the record we conclude that the issue of appellant's alleged negligence and the issues of assumption of risk and contributory negligence were all for the exclusive consideration of the jury, and that their verdict, by which these issues were determined in respondent's favor, cannot be disturbed. The motions were properly denied.

For two days prior to the accident, respondent, who was then a little more than 19 years of age, had been employed as an offbearer in appellant's sawmill. A system of [2] Appellant contends that the damages live rolls conveyed slabs to a cut-off saw to awarded are excessive. This contention must be cut into short pieces. It was respondent's be sustained. Respondent lost the great toe duty to receive these pieces from the cut-off of his right foot. His evidence shows that he saw, and cast them into a bin on the opposite incurred a liability of $150 for medical side of the rollway. While doing this work, treatment and nursing, that he was disabled respondent, following the usual custom of for five weeks, and that he suffered much the mill, stood with one foot inside, and the pain. We conclude from all the evidence other outside, the rollway. Between the that a judgment for $1,000 would afford ample saw and the place where his foot was compensation. If in 20 days after remittitur, inside the rollway, there were originally two respondent shall file with the clerk of the wooden braces, which would protect the off-superior court his written consent to remit bearer from coming in contact with the saw. The lower brace had been removed some time prior to the accident, leaving an opening 6 inches high and about 20 inches in width. Respondent contends that he was ignorant of the existence of this opening; that it was concealed by splinters, sawdust, and other refuse, and that while he was working his foot slipped through, came in contact MORRIS, ELLIS, MAIN, and FULLERwith the saw, and was injured. He alleged TON, JJ., concur.

all of the judgment in excess of $1,000, with interest thereon from the date of trial, the judgment thus reduced will be affirmed, otherwise a new trial will be granted. Respondent will recover his costs in the superior court. Appellant will recover his costs in this court.

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

4. APPEAL AND ERROR (§ 715*)-RECORD- | ty and the sale confirmed. The present acOMISSIONS-CORRECTION BY AFFIDAVIT. tion was instituted by the respondent in September, 1911, in the superior court of Spokane county. In it the respondent sought to foreclose the deed of trust for the benefit of the holders of the bonds that had been

Where exceptions to the findings of the trial court do not appear in the record, the omissions cannot be supplied by ex parte affidavits of counsel, but the lower court should be asked to correct its record.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2964, 2965, 3273; Dec. Dig. § 715.*]

regularly sold by the telephone company. The telephone company, its receiver, and certain other persons and corporations were

Department 2. Appeal from Superior made defendants to the action and appeared Court, Spokane County.

Action by the Washington Trust Company against the Local & Long Distance Telephone Company and others. Judgment for plaintiff, and defendants appeal. Affirmed.

John T. Mulligan and O. B. Setters, both of Spokane, and Martin & Wilson, of Davenport, for appellants. Danson, Williams & Danson and Cannon, Ferris & Swan, all of Spokane, for respondent.

therein. The defendants first moved to dismiss the action for want of jurisdiction. On the motion being overruled, they moved for a change of venue, which was likewise overruled. Thereupon they answered to the merits, and a trial was had before the court, resulting in a foreclosure of the trust deed.

[1] The appellants first assign that the court erred in overruling the motion to dismiss the action for want of jurisdiction. The claim that the court was without jurisdicFULLERTON, J. The Local & Long Dis- tion is based upon two grounds, the first of tance Telephone Company is a domestic cor- which is that the action was brought against poration, organized for the purpose of con- the receiver without first having obtained' ducting a telephone business in the state of leave to sue from the court appointing him. Washington and elsewhere, having its princi- The record discloses that the respondent, pal place of business in the city of Spokane. after beginning its action and serving the reAfter its organization the company acquired ceiver with summons, applied to the court by purchase certain telephone lines and ap- appointing him and asked and obtained leave purtenances situated in Spokane and Lincoln to maintain the action against him. The apcounties, and obtained franchises from some pellants, however, insist that this procedure of the smaller cities and towns in these coun- did not cure the defect; that the question ties authorizing it to conduct a telephone ex- is one of jurisdiction, and, being such, the change therein. The company contemplated action was a nullity, and no subsequent conextending its telephone system, and to that sent or approval by the court appointing the end determined to issue, from time to time receiver could give it validity. In support of as they could be sold and the proceeds ap- their position the appellants cite and rely plied to an extension of its system, its nego- upon the case of Brown v. Rauch, 1 Wash. tiable coupon bonds in a sum not to exceed 497, 20 Pac. 785, a case from the territorial $500,000. To secure the payment of the court. But, as we pointed out in Payson v. bonds it executed and delivered to the re- Jacobs, 38 Wash. 203, 80 Pac. 429, that case spondent, the Washington Trust Company, its was controlled by the case of Barton v. Bardeed of trust, by which it conveyed to the bour, 104 U. S. 126, 26 L. Ed. 672, and was respondent all of its property of every kind opposed to the great weight of authority in and nature then owned by it, or such as it the state courts. It was pointed out, also, might thereafter acquire, conditioned to se- that the rule was afterwards changed, by cure the bond issue contemplated. The deed act of Congress, in so far as receiverships of trust provided that bonds issued pursuant in the federal courts were concerned, and thereto should be certified by the respondent, that we had subsequently announced a differand subsequent to its execution the telephone ent rule. In the state courts the great company issued and the respondent certified' weight of authority is to the effect that failbonds to the face value of some $39,000. Of ure to obtain leave to sue a receiver is merely this issue and certification, however, only an irregularity, to be taken advantage of by bonds to the face value of $19,700 were regularly sold, the remainder of the issue being canceled by order of the court. After the issuance of these bonds the telephone company was adjudged insolvent, at the suit of certain of its creditors, brought in the superior court of Lincoln county, and a receiver appointed of its property. The receiver in the administration of his trust sold, or purported to sell, the property of the telephone company to one H. H. Reynolds for the sum of $10,000. This sale was duly reported to the superior court of Lincoln coun

a stay of proceedings, or by proceedings as for a contempt. Applying this rule to the case at bar, it is clear that the failure to obtain leave to sue the receiver was cured by the subsequent grant of permission to maintain the action against him. Sigwald v. City Bank, 82 S. C. 382, 64 S. E. 398; Ratcliff v. Adler, 71 Ark. 269, 72 S. W. 896; Hirshfeld v. Kalischer, 81 Hun, 606, 30 N. Y. Supp. 1027; De La Fleur v. Barney et al., 45 Misc. Rep. 515, 92 N. Y. Supp. 926.

[2] The second objection to the jurisdiction is that an independent action cannot