cause. be maintained to foreclose a mortgage upon property in the hands of a receiver appointed by a court, but that the remedy of the mortgagee is by petition in the original Doubtless the remedy here suggested is an appropriate remedy, but the question is one of procedure merely. As the deed of trust antedated the receivership, the lien of the beneficiaries thereof on the corporate property was superior to that of the general creditors created by the receivership, and the court could properly permit the trustee to pursue any remedy appropriate to subject the property to their lien. Since it gave permission to sue in an independent action, this court will not reverse the order as of course. Some showing of abuse of discretion by the court must be made by the complaints before that result will follow. Cass v. Sutherland, 98 Wis. 551, 74 N. W. 337. that through inadvertence, without the fault 2. TAXATION (8 642*)-TAX SALES-JURIS- Where a tax foreclosure suit was begun rolls as owner, and service of process was against a corporation appearing on the tax made on a corporation of that name, but it disclaimed any interest in the property, and publication, in accordance with Rem. & Bal. thereafter service of process was made by Code, § 227, the service of process was sufficient; a tax foreclosure proceeding being one in rem. [Ed. Note.-For other cases, see Taxation, Cent. Dig. §§ 1305-1307; Dec. Dig. § 642.*] 3. TAXATION 805*)-TAX SALES-SUIT TO SET ASIDE-PARTIES. Where the property obtained by a husband through tax sales became the community property of himself and wife, the wife was a necessary party to a suit to set aside the tax sales and deeds, and the action against her must be commenced within the statutory period. [Ed. Note.-For other cases, see Taxation, Cent. Dig. §§ 1593-1597; Dec. Dig. § 805.*1 Department 2. On rehearing. Judgment [3] The appellants question the sufficiency of the evidence to justify the findings of fact made by the court, but we think they are estopped from raising the question. They have taken no exceptions to the findings, and we have held in a long line of cases that such exceptions are necessary under the statute to permit their review. Craver v. Moss-affirmed. bach, 57 Wash. 662, 107 Pac. 1037, 109 Pac. For former opinion, see 70 Wash. 579, 127 1016; Ferdig v. Simpson, 47 Wash. 475, 92 Pac. 370; Pierce v. Pettit, 46 Wash. 668, 91 Pac. 190; Bybee v. Bybee, 45 Wash. 187, 87 Pac. 1122; Adams v. Casey, 39 Wash. 37, 80 Pac. 853. Pac. 192. tried together. order of dismissal. CROW, C. J. Three separate actions were commenced by J. B. Dabney on October 3, 1908, to set aside tax sales and deeds cov[4] We have not overlooked the fact that ering city lots in South Aberdeen, Chehalis the record contains affidavits by appellant's county. These actions, hereinafter mentioncounsel to the effect that they were presented as a single cause, were consolidated and at the time the findings were signed by the Plaintiff appealed from an court below, and took proper exceptions thereto, and thought they had been noticed on the margin of the findings by the trial judge in the manner permitted by the statute. But the record cannot be supplied in this manner. If the record fails to speak the proceedings of the court, the remedy is to apply to the court where the admission occurs for its correction. It cannot be supplied by the ex parte statements of counsel. [1] On October 26, 1912, the judgment of the trial court was affirmed. 70 Wash. 579, 127 Pac. 192. As no statement of facts was then before us, we said: "The findings of the trial judge sustain the regularity of the foreclosure proceedings and support the order of dismissal in this action. As no statement of facts has been brought to this court, the findings must be accepted as true. They sustain the judgment, which is affirmed." By stipulation, and a petition for rehearing, a showing was thereafter made to the effect CROW, C. J., and MORRIS, MAIN, and that a statement of facts had been prepared, ELLIS, JJ., concur. We find no reversible error in the record, and the judgment will stand affirmed. (73 Wash. 583) DABNEY v. STEARNS et al. (Supreme Court of Washington. 1913.) May 24, 1. APPEAL AND ERROR ($ 832*)-GRANTING OF REHEARING-GROUNDS. filed, served, and certified, which through inadvertence, and without fault of appellant or his attorneys, was not transmitted to this court. As appellant was without fault, his petition for rehearing has been granted, and the cause is now before us. The record shows that although the lots were assessed to North West Land & ImWhere the court on the original hearing provement Company, and the original tax affirmed a judgment on the theory that the foreclosure proceedings were against that corfindings sustaining the judgment were con- poration as owner, the record title in fact clusive because of the want of a statement stood in the name of the Northwestern Land of facts in the record, a rehearing would be granted on it appearing that the statement of & Improvement Company, a corporation. facts was duly filed, served, and certified, and The last-named corporation was organized in [3] The evidence sustains a finding that the title and property obtained by respondent J. O. Stearns, through the tax sales, became the community property of himself and wife, and that Mrs. Stearns was a necessary party to this action, which as against her and the community was not commenced within the time limited by law. Huber v. Brown, 57 Wash. 654, 107 Pac. 850; Baylis v. Kerrick, 64 Wash. 410, 116 Pac. 1082; Fleming v. Stearns, 66 Wash. 655, 120 Pac. 522. 1891, but for many years prior to the com- | as tax foreclosures are proceedings in rem. mencement of this action, beginning with the Spokane Falls & N. R. Co. v. Abitz, 38 Wash. year 1898, and at all times thereafter, it 8, 80 Pac. 192; Noble v. Aune, 50 Wash. 73, made no payment of its annual license fees. 96 Pac. 688. On February 23, 1910, it was stricken from the records of the office of the Secretary of State for nonpayment of license fees. Laws 1907, p. 27, § 7 (Rem. & Bal. Code, § 3715). When the original tax foreclosure suits were commenced, the sheriff of Chehalis county made returns that he was unable to find the North West Land & Improvement Company or any of its officers within his county. Thereafter service was made upon North West Land & Improvement Company, a corporation, having its principal place of business in Spokane county, which corporation forthwith disclaimed any interest in the real estate. Thereupon further service was made in compliance with section 227, Rem. & Bal., by publication of summons in a newspaper printed and published in the city of Olympia, the seat of government of this state. In due course foreclosure decrees were entered, sales were made, and tax deeds were issued to respondent, J. O. Stearns. Prior to, and at all times since, the foreclosure actions and the commencement of this action, respondent J. O. Stearns was and is a married man living with his wife, Fannie Soule Stearns, in Chehalis county. By amendment to his answer he alleged that the real estate was and is the community property of himself and wife. Thereafter, by or der of court, Mrs. Stearns was made a party defendant and was served with process. She was not made a party, nor was she served with process within the period of the statute of limitations. Section 162, Rem. & Bal. She pleaded this statute in her answer. The trial court found that the tax foreclosure judgments were regular; that due and legal service of process had been made; that sales were made by the county treasurer in pursuance thereof; that by the sales and subsequent tax deeds the legal fee-simple title was conveyed to respondent J. O. Stearns; that respondent Fannie Soule Stearns, who appeared by separate answer, was not served with summons within three years after the issuance of the tax deeds; and that the appellant failed to establish any facts which would entitle him to set aside the tax sales and deeds. A decree was entered dismissing the action. [2] We have examined the statement of facts and conclude that the evidence sustains the findings made. The foreclosure proceedings were commenced against North West Land & Improvement Company, the corporation, which appeared upon the tax rolls as owner of the property, and service was made upon a corporation of that name. Subsequent service was also made in accordance with the provisions of section 227, Rem. & Bal. The service thus made was sufficient, The judgment is affirmed. FULLERTON, MAIN, MORRIS, and ELLIS, JJ., concur. (73 Wash. 610) POLK v. SPOKANE INTERSTATE FAIR. (Supreme Court of Washington. May 24, 1913.) 1. NEGLIGENCE (§ 141*) — CONTRIBUTORY NEGLIGENCE-INSTRUCTION. through a fire in a stable. owned by defendIn an action for the loss of horses ant, but used by plaintiff with defendant's consent, where the defense was contributory standing the exercise of care on the part of negligence, an instruction that if, notwithdefendant, the danger from fire still remained, and plaintiff knew that fires were likely to occur, he assumed the risk of such danger, is erroneous for not charging plaintiff with what he should have known as well as what he knew. [Ed. Note.-For other cases, see Negligence, Cent. Dig. §§ 382-399; Dec. Dig. § 141.*] 2. APPEAL AND ERROR (§ 1064*)-HARMLESS ERROR-INSTRUCTIONS-FAILURE TO SUBMIT ISSUES. It appearing that there were no other instructions in which plaintiff's knowledge of the danger was referred to, such an instruction was prejudicial, even though the jury found that defendant was negligent in not employing sufficient watchmen, since defendant was entitled to have the effect of plaintiff's knowledge correctly set forth. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 4219, 4221-4224; Dec. Dig. 1064.*] 3. TRIAL (§ 203*)-INSTRUCTIONS-NECESSITY. In an action for the loss of horses destroyed by a fire in the stables of a fair, where the defense was contributory negligence, it was error to refuse to charge that, even if the defendant was negligent in not not recover if he knew, or could have known, employing sufficient watchmen, plaintiff could of the danger and left his property exposed to it. [Ed. Note.-For other cases, see Trial, Cent. Dig. 88 477-499; Dec. Dig. § 203.*] 4. NEGLIGENCE (32*)-CONDITION OF LAND -LICENSEES. The owner of premises is liable to those coming upon them by his invitation, who, while in the exercise of due care, are injured *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes because of some negligent or unsafe condi- | fell upon the stables and into piles of reftion. [Ed. Note. For other cases, see Negligence, Cent. Dig. 88 42-44; Dec. Dig. § 32.*] use just beyond them, and, in order to protect the stables, a number of watchmen were stationed around them during the display 5. NEGLIGENCE (§ 66*)-CONDITION OF LAND and for some time thereafter. All these -LICENSEES-CONTRIBUTORY NEGLIGENCE. When one voluntarily and willingly places facts were well known to respondent, and, himself or his property in danger, he is pre-appreciating the danger of the situation, he sumed to assume all the risks reasonably to instructed his employés to take precaution be apprehended. of negligence were pleaded: First, in the against the danger from fire. Two grounds [Ed. Note. For other cases, see Negligence, Cent. Dig. §§ 86-89; Dec. Dig. § 66.*] 6. NEGLIGENCE (§ 136*) -KNOWLEDGE DANGER CONTRIBUTORY NEGLIGENCE QUESTION FOR JURY. OF Mere knowledge of the danger is not contributory negligence, but it is a question for the jury whether plaintiff used the care and caution commensurate with his knowledge of the danger. [Ed. Note. For other cases, see Negligence, Cent. Dig. §§ 277-353; Dec. Dig. § 136.*] 7. ACTION (8 45*)-JOINDER-CLAIMS ARIS ING FROM SAME TRANSACTION. One who has suffered damage by the loss of his horses in a fire on defendant's premises may join in the same action a claim for his damage and one for the damage sustained by others through a like loss which has been assigned to him. [Ed. Note.-For other cases, see Action, Cent. Dig. §§ 378-383, 385-448; Dec. Dig. § 45.*] Department 2. Appeal from Superior Court, Spokane County; Wm. A. Huneke, Judge. Action by Stuart Polk against the Spokane Interstate Fair. Judgment for plaintiff, and defendant appeals. Reversed and remanded. Post, Avery & Higgins, of Spokane, for appellant. Belt & Powell, of Spokane, for respondent. MORRIS, J. Respondent and his assignors lost two race horses and other property through a fire which burned the stables in which the horses and other property were kept, and, alleging the negligence of appellant as the cause of the fire, brought this action in which judgment was obtained below. careless and negligent manner in which the known. [2] If the court had in other apt instructions placed this defense before the jury, we should not regard the failure of the court to extend respondent's assumption of danger beyond his actual knowledge as in this instruction as fatal, as this instruction is predicated upon appellant's exercise of due care, and, the jury having found that appellant did not exercise due care, it might be said the instruction has no application to the finding. This instruction, however, is the only one in which respondent's knowledge of the danger is referred to, and appellant is entitled to have the effect of respondent's knowledge set before the jury in such a way as to embrace what he should have known as well as what he did know. Error is assigned in the giving and refusing to give certain instructions. We have reviewed those which we think call for a reversal of the judgment. So far as necessary to refer to the facts, it appears that appellant has for many years conducted an annual fair at Spokane, at which horse racing was one of the daily features. Stables were provided on the east edge of the fair grounds, the free use of which was given to the owners of such horses as cared to use them. It was the custom of appellant to give an exhibition of fireworks each evening during the progress of the fair. These fireworks were set off in the northerly end of the inclosed grounds, and the skyrockets and other like pieces were aimed so as to pass over [3] Again, the defense being contributory the line of stables and into the uninhabited negligence which recognizes want of due care space beyond. The skyrockets frequently on the part of appellant, the jury should have [7] Appellant also suggests a question of respondent's right to bring the action as to the damages sustained by others through a like loss, and which right of action has been assigned to him. Without discussing this claim further, we will only say it has been duly considered, and in our opinion it is not well taken. Bell v. Jovita Heights Co., 127 Pac. 289. been instructed as to the proper rule to guide | the injured person used care and caution them in case they found such want of due commensurate with such knowledge, thus care on the part of appellant, and the re- making it a question of fact. So here appelspondent knew, or should have known, of lant was entitled to have its defense subthe danger, and to this end appellant request-mitted to the jury under proper instructions ed an instruction in which the court was and its contention determined as any other asked to charge that if the jury should find fact in the case. that the defendant was negligent in respect to setting off the fireworks or in guarding against fires therefrom, and that such negligence brought about the destruction of any property, the defendant should not be charged therewith if the plaintiff was aware of the danger that said property was subjected to by reason of the fireworks, and knew, or should have known by reason of the conditions existing at the race track, that a fire was liable to occur in connection with the fireworks, and that the property was liable to be injured or destroyed thereby, and that under these circumstances, and with this knowledge, the plaintiff or the persons in charge of said property left the same exposed to the risk and danger. This, or other appropriate charge, should have been given; otherwise the jury is left to a consideration of the facts from the standpoint alone of whether or not the appellant exercised due care, when they should also have been instructed as to the rule in case they found neither party exercised due care. It seems to us there can be little, if any, controversy as to what the law is, under the facts disclosed. [4, 5] The owner of premises is liable in damages to those coming to them at his invitation, who while in the exercise of due care are injured because of some unsafe or negligent condition; but it is equally true that, when one voluntarily and willingly puts himself or his property in danger, there is a presumption that he assumes all the risks reasonably to be apprehended from such conduct. In cases of this kind this assumption is called "contributory negligence," and is as much a defense in these cases as in any other to which it may be applied. Carle ton v. Franconia Iron & Steel Co., 99 Mass. 216; Caniff v. Blanchard Nav. Co., 66 Mich. 638, 33 N. W. 744, 11 Am. St. Rep. 541; O'Donnell v. Patton, 117 Mo. 13, 22 S. W. 903. Judge Cooley tersely expresses this rule in Marquette H. & O. Rd. Co. v. Spear, 44 Mich. 169, 6 N. W. 202, 38 Am. Rep. 242, in saying: "That which one consents to, and invites, he cannot complain of in the law as an injury." The judgment is reversed, and cause remanded for a new trial. CROW, C. J., and FULLERTON, ELLIS, and MAIN, JJ., concur. (73 Wash. 624) LINSTEDT v. NATIONAL CASUALTY CO. (Supreme Court of Washington. May 26, 1913.) 1. TRIAL (8 67*)-RECEPTION OF EVIDENCEREOPENING CASE. Where evidence, given by the plaintiff with leave of the court after he had closed his case in chief, established a prima facie case of waiver by an insurance company of a condition in within six months after making proof of loss, its policy, requiring an action to be begun there was no error in the court's rulings allowing the introduction of such evidence and overruling a motion to dismiss the action for failure to prove such waiver. [Ed. Note.-For other cases, see Trial, Cent. Dig. § 157; Dec. Dig. § 67.*] 2. PLEADING (§ 180*)-REPLY-DEPARture. There is no departure in a reply in a case, where only a part of the cause of action is set out in the complaint and the reply merely states the rest. [Ed. Note. For other cases, see Pleading, Cent. Dig. 88 358-384; Dec. Dig. § 180.*] Department 2. Appeal from Superior Court, King County; J. T. Ronald, Judge. Action by Nels C. K. Linstedt against the National Casualty Company. Judgment for plaintiff, and defendant appeals. Affirmed. Granger & Clarke, of Seattle, for appellant. Van Dyke & Thomas, of Seattle, for respondent. FULLERTON, J. The appellant, in consideration of certain premiums paid it, insured the respondent against loss of time, [6] This does not mean that knowledge of resulting from bodily injuries "effected dithe danger will defeat recovery by one sus-rectly and independently of all other causes taining an injury because of that danger. through external, violent and accidental We have held to the contrary in many cases, means." The amount of the insurance was in saying, as in Jordan v. Seattle, 26 Wash. made to depend on the extent of the dis61, 66 Pac. 114, that knowledge of the dan- ability caused by the injury, and it was proger does not of itself constitute contributory | vided that if the injuries were sustained negligence in law, but it may in fact, and while riding as a passenger within the init is therefore for the jury to say whether closed part of any railway passenger car provided for the exclusive use of passengers | no desertion of the cause of action set out and propelled by steam, compressed air, in the complaint. The respondent was still cable or electricity, the indemnity payable compelled, in order to recover, to prove the should be double the amount which would principal allegations of his complaint, and under the terms of the policy be otherwise the most that can be said against the pleadpayable for such injuries. While the policy ing is that the entire cause of action is not was in force, the respondent received bodily set out in the complaint. But to set out a injuries while riding in the inclosed part of part of the cause of action in the complaint a railway passenger car provided for the ex- and the balance in the reply is not a deparclusive use of passengers and propelled by ture in pleading, however defective the pleadsteam, which totally disabled him for a con- ing may otherwise be. Neither is it the propsiderable period of time and partially dis- er remedy for such a defect to go to trial abled him for another such period; the ag- and object to the introduction of evidence. gregate times of such disabilities covering The pleading should be moved against, so the life of the policy. The respondent in that the pleader may have an opportunity to due time notified the appellant of his injury, correct it without the delay and expense of and later demanded an adjustment of his taking a nonsuit and commencing his action loss. Negotiations were carried on between over again." them for some time, but no agreement was reached. This action was finally brought to recover on the policy, and resulted in a verdict and judgment in favor of the respond ent. This appeal followed. [1, 2] In his complaint the respondent alleged that proper notice and proof of the accident and the resulting injuries sustained by the respondent therefrom had been given to the appellant. In its answer the appellant admitted that such proofs were furnished, but alleged that they were so furnished at a particular date, and that the action had not been begun within six months from the time of furnishing such proofs as required by the policy. The respondent for reply alleged that the proofs to which the appellant referred in its answer were not final proofs, but proofs made in furtherance of the negotiations between the parties for a settlement, and set forth that the terms of the policy requiring final proofs had been waived. At the trial, after the respondent announced that he had closed his evidence in chief, the appellant moved for a nonsuit on the grounds that the action had not been begun within six months of the making of proofs of loss, and that the matter set up in the reply was a departure from the cause of action alleged in the complaint. The respondent thereupon requested and was granted leave to reopen his case and introduce evidence tending to show a waiver by the appellant of proofs of loss in accordance with the allegations of his reply. After he had again rested, the motion was renewed and denied by the court. These rulings constitute the first error assigned. But we find no error in the rulings complained of. The evidence offered made a prima facie case of The remaining objections go to the sufficiency of the evidence to sustain the verdict and judgment. We can conceive, however, of no useful purpose in setting forth a review of the evidence on the objections made. It is sufficient to say that in our judgment there was substantial evidence on every material allegation necessary to be proven. The judgment is affirmed. CRÓW, C. J., and MAIN and ELLIS, JJ., concur. (73 Wash. 619) WILTON v. CITY OF SPOKANE et al. (Supreme Court of Washington. May 26, 1913.) 1. MUNICIPAL CORPORATIONS (8 762*) — DEFECT IN STREETS-HIDDEN DEFECTS DUE TO CONTRACTOR. Where an independent contractor constructing a street for a city, in which work blasting was necessary, negligently left an unexploded charge of blasting powder under the surface, which subsequently exploded and injured plaintiff, the city is not liable on account of the inherently dangerous character of the work; since the injury was caused by the negligent act of the contractor wholly collateral to the work, and of which the city had no knowledge and no means of obtaining knowledge. [Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. 88 1605-1611; Dec. Dig. § 762.*] 2. MUNICIPAL CORPORATIONS (§ 801*)-Care OF STREETS-DUTY TO LICENSEES. A city does not owe a master's duty to provide a safe place for work to one who is employed by an electric light company to erect poles along a street under permission from the city, but owes only the duty to refrain from doing willful injury to him and from setting snares for him. [Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. §§ 1660-1665; Dec. Dig. § 801.*] 3. MUNICIPAL CORPORATIONS (§ 788*) — DEFECTS IN STREETS-NOTICE. A city is liable only for defects in its streets of which it has, or with reasonable diligence could have obtained, knowledge, and it is not a guarantor of their safety. waiver of proofs on the part of the appellant, and the remaining question is controlled by the case of Erickson v. McLellan & Co., 46 Wash. 661, 91 Pac. 249. In the case cited, concerning similar pleadings, we said: "A departure in pleading takes place when, in a subsequent pleading, a party deserts the ground taken in his last antecedent pleading and resorts to another. Here there was [Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. §§ 1641-1643, 1646, 1652; Dec. Dig. § 788.*] |