TOR TO PERSON INJURED. An independent contractor constructing streets for a city, who negligently leaves an unexploded blast beneath the surface of the street, is liable to one injured by a subsequent explosion thereof, even though the city has accepted the street; since this was not a defect arising from negligent construction of the street, but a negligent act collateral to his contract, so imminently dangerous as to make him liable, regardless of any contractual relation with the person injured. 4. MUNICIPAL CORPORATIONS (§ 809*) -DE- The holes in which to set the poles had to FECT IN STREETS LIABILITY OF CONTRAC- be dug somewhat deeper than the street was cut down in the performance of the improvement work, and where the ledge of rock was encountered the rock necessary to be removed was broken up by blasting. While the employés of the Washington Water Power Company, among whom was the respondent, were drilling for the purpose of putting in a blast in one of such holes, the drill encountered the unexploded blast left in the rock by Foster & Hindle, causing it to explode. The explosion put out one of the respondent's eyes and otherwise seriously injured him, and he brought the present action, with the result before stated. [Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. §§ 1688-1694; Dec. Dig. § 809.*] Department 2. Appeal from Superior Court, Spokane County; Sullivan, Judge. Action by Andrew Wilton against the City of Spokane and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded as to City of Spokane, and affirmed as to the other defendants. Hurn & Upton, Robinson & McHugh, H. M. Stephens, W. E. Richardson, and Ernest E. Sargeant, all of Spokane, for appellants. Morrill, Chester & Skuse, of Spokane, for respondent. [1] The record does not make clear the grounds on which the judgment against the city was rested. Several grounds on which it is thought it may rest, however, are suggested in the argument, and these we will notice briefly in their order. It is first said it could not be let to independent contractors, and that the city could not escape liability for the negligent performance by endeavoring to so let it. The particular contention is that the work of blasting rock in 'that the work was of such a character that an inhabited portion of a city is so inherently dangerous in itself that public policy forbids that the city be permitted to let the work to an independent contractor. But if this be the general rule, we do not think the ligence and nothing else, and the city is liable for the act only in the same way, and to the same extent, that it would have been liable had the contractors left the dynamite on the surface of the street in the traveled part of the roadway on leaving the work; it is liable for injuries resulting therefrom only in the case it knew of its being so left, or by the exercise of reasonable diligence could have known of it. "But the employer a grade for a street. Such an action is neg FULLERTON, J. The respondent brought this action against the city of Spokane, Foster & Hindle, a copartnership, and the Washington Water Power Company, a corporation, to recover for personal injuries. Before issue was joined on the complaint, the action was dismissed as to the Washing-present case falls within it. The leaving of an unexploded blast of dynamite in the rock ton Water Power Company. Afterwards it was prosecuted to a judgment against the below the surface of a street is not an inciother defendants, both of whom appeal. The dent to the work of blasting rock to make facts of the case are not complicated, nor seriously in dispute. The city of Spokane let a contract to Foster & Hindle for the improvement of one of its streets. The work included the grading of a roadway along the center of the street and the construction of a parking strip and a sidewalk on each side thereof. By the terms of the contract Foster & Hindle were made independent contractors, responsible to the city for the result of the work only, not as to the manner in which it was to be performed. In grading the street to its proper level, a ledge of rock was encountered which the contractors removed by blasting; the explosive used being dynamite. In the course of the work a blast put in near the bottom of the required grade failed to explode, and the contractors, instead of removing it, covered it up and constructed the surface of the street over it. Afterwards the city accepted the work as a compliance with the contract without knowledge of the unexploded blast. Some months later the Washington Water Power Company applied for and was grant- [2] A second reason suggested for sustained permission to erect a line of poles along ing the judgment against the city is that the margin of the improved street on which the relation of master and servant existed to string electric wires for lighting purposes. between the city and the respondent. But is not liable where the obstruction or defect in the street causing the injury is wholly it is manifest that the respondent was not in the employ of the city. He was a mere licensee upon the street, and while the city owed him the duty to refrain from doing him willful injury, and from setting snares for him, it owed no duty to provide him with a safe place in which to work. [3] Again, it is said that the city is responsible for the condition of its streets, and hence liable for any injury arising from defects therein, no matter by whom the defect may have been caused. But the rule is not so broad as this. The city is liable only for those defects in its streets of which it has knowledge, or by the exercise of reasonable diligence could have obtained knowledge. It is not a guarantor of the safe condition of its streets for all purposes and at all times. Its full duty is performed when it exercises reasonable diligence in keeping its streets in repair. We think therefore that the court erred in holding the city liable for the injury. that negligence is a breach of the contract. Longmeid v. Holliday, 6 Law & Eq. Rep. 562. We conclude therefore that the trial judge was right in refusing to sustain the challenge of the appellants Foster & Hindle. The judgment will be reversed and remanded, with instructions to dismiss as to the appellant city of Spokane, but will stand affirmed as to the other appellants. CROW, C. J., and MAIN, MORRIS, and ELLIS, JJ., concur. (73 Wash. 586) HAYS v. MERCANTILE INV. CO. et al. (Supreme Court of Washington. May 24, 1913.) 1. JUDGMENT (8 145*)-DEFAULT-OPENINGGROUNDS. Where plaintiff, against whom a default had been entered for want of a reply to an afset aside the default and tendered a reply firmative defense of res judicata, moved to which did not deny the facts set forth in the affirmative defense but only the legal effect of the former decree, it was not an abuse of discretion to refuse to set the default aside. [Ed. Note.-For other cases, see Judgment, Cent. Dig. §§ 271, 292-295; Dec. Dig. § 145.*] 2. JUDGMENT (§ 654*)-CONCLUSIVENESS— DISMISSAL WITH PREJUDICE. [4] The appellants Foster & Hindle make the contention that the evidence is insufficient to justify the verdict against them. They argue that when they completed the contract and turned the street over to the city, and the city accepted the work as a compliance with the contract, their liability ciary under a will to procure its probate for Plaintiff had contracted with the benefito third persons for the negligent perform- a fee of one-half the property. The will was ance of the work ceased, and from thence- admitted, but the probate was later set aside, forth the city alone was responsible for any in plaintiff's absence, for lack of process, and, such negligent performance. This argument by another attorney, probate was refused. In in the proceedings for a re-probate conducted is perhaps sound in so far as it relates to a former action to set aside the decree redefects in the street arising from a mere fusing probate for fraud against his rights, negligent performance of the work, but we plaintiff's bill was dismissed as to the administrator and the beneficiary for lack of prosecuthink it has no application to an act of the tion. At the time of the trial, plaintiff moved nature here charged against the contractors. to have these parties reinstated as defendants The leaving of the unexploded charge of and appealed from the order denying his motion, thereafter refusing to continue the trial dynamite in the rock beneath the surface as to the other defendants. The court heard of the street was not a matter connected the evidence of the defendants and dismissed with the contract work. It was a matter the bill with prejudice, finding it to have been vexatious. The appeal from the order refuswholly collateral thereto, and was, as we ing to reinstate the two defendants was dishave said, of itself a negligent and wrongful missed, and thereafter plaintiff commenced this act, rendering the persons wrongfully leav-action, in which the pleadings raised substantially the same issues. Held, that the former ing it there liable to any one who in the decree was res judicata as to those issues in lawful pursuit of his own business should this case. be injured thereby. The liability of the contractors for the injury arising from the explosion rests on the same principle it would have rested had they knowingly or negligently left the explosive on the surface of the street and a traveler on the street had come into contact therewith and received an injury; it rests on the wrongful and negligent nature of the act itself. There is a distinction between an act of negligence imminently dangerous to the lives of others and one that is not so. In the former case the party guilty of the negligence is liable to the party injured, whether there be a contract between them or not; in the latter, the negligent party is liable only to the party with whom he contracted, and on the ground [Ed. Note.-For other cases, see Judgment, Cent. Dig. § 1165; Dec. Dig. § 654.*] 3. JUDGMENT (§ 143*)-MATERIALITY OF REP RESENTATIONS. Where a judgment admitting a will to probate was set aside on the ground of lack of jurisdiction by reason of lack of process, a fraud, whereby the petition to set aside the probate was erroneously made to appear to have been filed in the same proceedings within one year after the probate, is immaterial, since, where the former order is void for lack of process, a petition to vacate it is not limited to one year from the entry of the decree. [Ed. Note.-For other cases, see Judgment, Cent. Dig. §§ 269, 270, 272-291; Dec. Dig. § 143.*] 4. COURTS (§ 36*)-PROBATE PROCEEDINGSCITATION-PRESUMPTIONS. Where it is alleged by the claimant of an interest under a will that the proceedings whereby the will was rejected were had without his knowledge or consent, but there is no allegation of want of valid citation, it will be presumed that the proceedings were based upon valid citation. [Ed. Note.-For other cases, see Courts, Cent. Dig. §§ 142-144; Dec. Dig. § 36.*] Department 2. Appeal from Superior Court, King County; King Dykeman, Judge. Action by W. H. Hays against the Mercantile Investment Company and others. Judg. ment for defendants, and plaintiff appeals. Affirmed. W. F. Hays, of Seattle, and Henry St. Rayner, of Portland, Or., for appellant. Jas. B. Howe and Peterson & Macbride, all of Seattle, for respondents. ELLIS, J. This is a recrudescence of the contest involving the estate of John Sullivan, deceased, which has been intermittently before some court, either of first instance or appellate, state, or federal, ever since the spring of 1901. For the history of that estate, reference is made to the following decisions: In the Matter of the Estate of John Sullivan, Deceased; Edward Corcoran et al. v. Marie Carrau et al., 40 Wash. 202, 82 Pac. 297; W. H. Hays v. Terrence O'Brien, as Administrator of Estate of John Sullivan, and Marie Carrau et al., 56 Wash. 67, 105 Pac. 162; O'Callaghan et al. v. O'Brien et al. (C. C.) 116 Fed. 954; Carrau v. O'Calligan, 125 Fed. 657, 60 C. C. A. 347; O'Callaghan et al. v. O'Brien et al., 199 U. S. 89, 25 Sup. Ct. 727, 50 L. Ed. 101. the plaintiff claims to have been prevented from having a hearing on the original appeal to this court, and from having a hearing before the superior court of King county in probate at the time the probate of the nuncupative will was refused, and in the distribution of the estate above referred to. It is alleged, in substance, that at the time of the entry of the order dismissing the petition of Edward Corcoran and Charles H. Farrell, as administrator of the estate of Hannah Callaghan, deceased, in contest of the alleged nuncupative will, and at the time of the appeal from that dismissal to this Court and the decision thereon as reported in 40 Wash. 202, 82 Pac. 297, the plaintiff was absent from the state of Washington, and that all these things were done without his knowledge or consent and through a conspiracy between the predecessors in interest of the defendant corporations and the attorney for Marie Carrau in that proceeding, who, it is alleged, assumed to represent her without plaintiff's consent and in fraud of his rights under his contract with Marie Carrau. It is further alleged that in that proceeding and on that appeal the record was falsified to make it appear that the petition had been originally filed in the probate proceeding in King county within one year after the entry of the original order of probate on March 8, 1901, whereas it is now claimed that it was filed as a petition in a separate proceeding in equity to contest the alleged nuncupative will. It is also alleged that the proceedings seeking to re-probate the will, culminat In The plaintiff, who claims a half interesting in the order of the superior court of King in the entire estate by reason of a contract county rejecting the will on January 25, 1906, with Marie Carrau giving him that interest were without plaintiff's knowledge or conas an attorney's fee in consideration that he sent; but it is not alleged that the last-menestablish her rights as devisee under an al- tioned attempted probate was not upon reguleged nuncupative will, brings this action by lar citation as required by the statute. a bill in equity to set aside the judgment his complaint the plaintiff also alleged, in of this court entered upon the decision in 40 substance, that he had filed a suit against Wash. 202; and to set aside the judgment the predecessors in interest of the defendof the superior court of King county, Wash., ants herein; that one Terrence O'Brien, adin probate, dated January 25, 1906, finally ministrator of the Sullivan estate, and Marie rejecting the probate of the alleged nuncupa-Carrau were parties to that suit and filed tive will of John Sullivan, deceased; and to vacate and set aside the judgment of January 10, 1907, in the same court distributing the property of the estate to Edward Corcoran and Charles H. Farrell, as administrator of the estate of Hannah Callaghan, deceased, and to Samuel H. Piles; and to cancel and hold for naught certain quitclaim deeds conveying the property formerly belonging to the estate to the defendant corporations; and to require the defendant Marie Carrau to deed to the plaintiff an undivided one-half interest in the property. The grounds of complaint are an alleged fraud and conspiracy between Corcoran, Farrell, and their attorneys Piles, Donworth, Howe, and others, and one J. W. Robinson, who represented Marie Carrau in most of the litigation above referred to, by which conspiracy and fraud demurrers to his complaint; that the superior court dismissed his action as to O'Brien, administrator, and Marie Carrau; that the plaintiff herein appealed from that order of dismissal to this court; that this court dismissed his appeal; and that plaintiff was thereby prevented from having a trial of that action upon the merits. The decision on that appeal is reported in 56 Wash. 67, 105 Pac. 162. The answer of the defendants in this action, after denying the allegations of the complaint, pleaded that the action last above referred to had been tried in the superior court of the state of Washington for King county, and that plaintiff's claim had been adjudged without merit and vexatious; that he was prosecuting that action not in good faith, but for the purpose of clouding the defendants' title; that the decree entered in | ter in their answer, which motion was rethat suit perpetually enjoined the plaintiff sisted by the plaintiff, who then tendered a herein from asserting any right, title, or in- reply which the court refused permission to terest in any of the property in question; file on the ground that it was tendered too that the plaintiff had sought to have that late and after the period of five days from decree set aside; that his motion was de- the service of the answer. The default was nied; that he appealed therefrom, and the entered. The plaintiff applied to the court Supreme Court of this state dismissed his to set aside this default, but his application appeal. This affirmative defense sets forth was denied, and judgment was entered disthe allegations of the plaintiff's complaint missing his complaint with costs. From that in the former action wherein practically the judgment, the plaintiff prosecutes this appeal. same charges of fraud and conspiracy, though not with the same particularity, are set out as appear in the complaint in the present action. The answer herein further alleges that, when that suit was brought on for trial, the plaintiff appeared in person and by attorney, but after an opening statement withdrew and refused to participate in the trial, though advised that the defendants, the predecessors in interest of the defendants here, would proceed to put in their evidence sustaining their denials and the allegations of their affirmative answer and cross-complaint, which was accordingly done, and a decree entered dismissing the plaintiff's action with prejudice, and granting the defendants relief as prayed for in that answer. A copy of that decree is set out in the present answer, in which it is recited that, upon motion of the defendants, the action was dismissed as to the codefendants O'Brien and Marie Carrau for failure of the plaintiff to prosecute the action against them, and that the plaintiff made his opening statement, at the close of which he moved the court to vacate the order of dismissal as to O'Brien and Carrau, which motion the court denied, whereupon the plaintiff, by his attorney, in open court gave notice of appeal to the Supreme Court from the order of dismissal as to O'Brien and Carrau, and from the order denying the motion to reinstate them as defendants, and that plaintiff proceeded no further; and the other defendants by their attorney inquired if the plaintiff intended to proceed with the trial, to which the plaintiff in person replied that he did not intend to continue further with the trial; that thereupon the defendants, by their attorney, announced that they would proceed to introduce evidence in support of their denials and in support of their affirmative answer, and would move the court to dismiss the plaintiff's action with prejudice, whereupon the court directed the defendants to proceed with the introduction of their evidence, and the plaintiff and his attorney, without obtaining permission from the court, withdrew from the courtroom and from the presence of the court and took no further part in the trial of that action. When the answer setting up these facts in the present action had been served and filed and five days had elapsed without a reply thereto having been made by the plaintiff, the defendants moved for a default against the plaintiff We [1] It is contended that the court abused his discretion in entering the judgment of default against the appellant and in refusing the appellant leave to file his reply. find in this no abuse of discretion, since an examination of the reply which was tendered shows that it in no manner controverted or denied the facts set forth in the affirmative defense showing practically the same facts as here pleaded had been pleaded in the former action, nor as to the contents of the decree in that action, but merely denied the legal effect of that decree. [2] It seems to us plain that, if the complaint in this action had set out in full the decree in the former action, the complaint in this action would have been demurrable in that it would have shown that the decree in the former action disposed of the issues sought to be raised in this. We have examined the complaint which was brought up in the former appeal (56 Wash, 67, 105 Pac. 162) and find that the allegations of that complaint set up every fact which it is claimed constitutes the fraud alleged in the complaint in this action, except that the complaint in this action alleges that the fraud was only discovered by the appellant on January 10, 1912. This is manifestly negatived by the complaint in the other action, which sets up the same matters alleged as fraud in the present action. [3] Moreover, the gravamen of the fraud alleged in both actions was that the record in the original appeal was falsified so as to make it appear, which it is alleged was contrary to the fact, that the petition to set aside the probate of the alleged nuncupative will, which was entered on March 8, 1901, had been filed within one year after that probate. It is manifest, however, that, even if such a fraud be admitted, it was immaterial, since the decision of this court in the original appeal, reported in 40 Wash. 202, is expressly based upon the ground that the original attempted probate of the alleged nuncupative will was void for lack of jurisdiction to enter it, by reason of lack of process, and for that reason the appellants in that case were not limited in their time to file their petition to vacate it to one year from the entry of the void decree. Neither the complaint in this action nor the tendered reply attempts to negative the fact, which is established by that appeal, that the original -ORDER OF DISTRIBUTION-CONCLUSIVE- er citation. Nor does the complaint in this 4. EXECUTORS AND ADMINISTRATORS (§ 315*) action or the reply to the respondents' answer allege that the appellant, as was his right and duty, under his contract with Marie Carrau, ever sought to re-probate the alleged nuncupative will. He merely claims that the effort which was made to re-probate the will was without his knowledge or consent. [4] It is not alleged, however, that that attempt to re-probate the will was not founded upon a valid citation. In the absence of that allegation, we must assume that it was. If it was founded upon a valid citation, then it was his duty to have appeared therein and set up his alleged interest. We have carefully examined the record on the appellant's premature appeal reported in 56 Wash. 67, 105 Pac. 162, and we are satisfied that the complaint in that action makes the decree rendered thereon res judicata of the matter sought to be raised in the present complaint; that these facts were sufficiently pleaded in the respondents' answer in this action; and that the reply which the appellant tendered to that answer did not deny the facts so pleaded. The court therefore committed no error in refusing to vacate the default and permit the filing of a reply which raised no issue, nor in dismissing the appellant's bill. The decree is affirmed. MOUNT, MAIN, FULLERTON, and MORRIS, JJ., concur. (73 Wash. 330) In re GOSS' ESTATE. (Supreme Court of Washington. May 5, 1913.) 1. EXECUTORS AND ADMINISTRATORS (§ 152*) -RIGHT OF ADMINISTRATRIX. While an administratrix cannot acquire any interest inconsistent with her representative capacity, nor make a personal profit out of her dealings with the property of the estate, yet the administratrix may properly take an assignment of the rights of another heir of decedent, provided estate funds are not used to pay therefor. An order discharging administratrix and approving a settlement made by her in an action in another court, whereby she acquired the interest of an heir, concludes the validity of the settlement and precludes persons who were parties to the administration, and represented on the hearing on the application for discharge, from attacking it. [Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. §§ 1298-1314; Dec. Dig. § 315.*] 5. EXECUTORS AND ADMINISTRATORS (8 524*) -FOREIGN ADMINISTRATION. The courts of the forum take no notice of foreign administrations, and consequently a foreign executor or administrator cannot sue or defend in his representative capacity. [Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. §§ 2330-2343; Dec. Dig. § 524.*] Department 2. Appeal from Superior Court, Lincoln County; F. K. P. Baske, Judge. In the Matter of the Estate of Anson Goss, deceased. From an order denying the objections of Effa Goss, as administratrix of Alfred P. Goss, and of Fred A. Goss, by his guardian, to distribution of the residue of the estate, the objectors appeal. Affirmed. Danson, Williams & Danson, and Geo. D. Lantz, all of Spokane, for appellants. Post, Avery & Higgins, of Spokane, for respondent. MORRIS, J. Anson Goss died June 19, 1909, leaving surviving him three children, Mrs. Shanahan of Sprague, Alfred P. Goss, residing in Montana, and Mrs. De Haven, residing in Michigan. For some time prior to his death Anson Goss had been engaged in the banking business at Sprague, and at his death left a large estate, consisting principally in notes and mortgages. The majority of these notes were payable to Mrs. De Haven. No will was found among his effects, and Mrs. Shanahan applied to the superior court for letters of administration. This application came on for hearing September 7th, when Mrs. De Haven filed objections to the granting of letters to Mrs. Shanahan, and set forth that the deceased had died testate, and that she had been in possession of the will and had offered the same for 72*)-VALIDITY-CONSENT probate in the state of Michigan. On NoA judgment by a court of competent ju-vember 4th Mrs. Shanahan's petition for risdiction, finding that a third person was the owner of property listed by an administratrix as belonging to her decedent, is not invalid because entered by consent of all the parties. [Ed. Note.-For other cases, see Judgment, Cent. Dig. 130; Dec. Dig. § 72.*] [Ed. Note.-For other cases. see Executors and Administrators, Cent. Dig. §§ 621-628; Dec. Dig. § 152.*] 2. JUDGMENT JUDGMENTS. ($ 3. WILLS (8 718*)-ESTOPPEL TO ATTACK— ACCEPTANCE OF BENEFITS. Where beneficiaries under a will consent to a partial distribution, accepting their shares, that acceptance bars them from attacking the validity of other bequests in the will, and the will must be accepted as valid. [Ed. Note.-For other cases, see Wills, Cent. Dig. 88 1717-1721; Dec. Dig. § 718.*] letters was granted, and she was appointed administratrix, the objections of Mrs. De Haven being overruled; the court finding that there was no will within the jurisdiction of the court, and that Mrs. De Haven, although claiming to have the last will of the deceased, had failed and refused to produce it. On November 24th Mrs. De Haven filed a suit in equity in the Circuit Court of the United States for the Eastern District of Washington, claiming as her own property all of the notes which Mrs. Shanahan had obtained under her appointment as adminis |