(182 P.) (107 Wash. 628) (Supreme Court of Washington. July 23, 1919.) 1. RECEIVERS 35(1) — APPOINTMENT NoTICE OF APPLICATION. The appointment of a receiver for a corporation, without notice to the corporation is void, even though made after execution against the corporation had been returned unsatisfied. 2. RECEIVERS 35(2)-APPOINTMENT-NoTICE OF APPLICATION SUMMONS IN GARNISHMENT. A summons or writ of garnishment is not sufficient notice to the garnishee corporation to sustain the appointment of a receiver for the garnishee after execution against it had been returned unsatisfied. Department 1. issued thereon and returned unsatisfied, and that the company was insolvent. Upon learning of the appointment of a receiver the company, by special appearance, promptly made application to the court for an order setting aside the order by which the receiver had been appointed, claiming the appointment was void, among other reasons, because it was made without any notice to the company. The application to vacate the order was denied, whereupon the company, continuing its special appearance, has appealed, still preserving its special appearance in this court. [1] The appointment was not of a temporary receiver as an emergency order until the company could be notified to appear and show cause, but purports to be the appoint-, ment of a permanent receiver. This court has uniformly held that the appointment of such a receiver without notice is without Appeal from Superior Court, King County; jurisdiction and vold. State ex rel. Ridgely J. I. Ronald, Judge. v. Superior Court, 86 Wash. 584, 150 Pac. 1153. Respondents admit such to be the rule where the receiver is appointed prior to judgment, but contend notice of an application is not necessary after judgment. There. is no difference; notice is required in either case. The appointment requires proof of a necessity therefor, and in this particular case respondents submitted proof by way of affidavit. It is an adversary proceeding and, except in the case of an emergency order, the court is without jurisdiction to determine the Gay & Griffin and Geo. H. Rummens, all of existence of a state of facts justifying the Seattle, for appellant. taking and retaining of another's property by Byers & Byers and Aust & Terhune, all of means of a receiver without giving that other Seattle, for respondents. MITCHELL, J. E. M. Gordon et al. obtained a judgment against C. D. Hillman et al., and afterwards procured a writ of garnishment and had it served upon the Pacific Excursion Company, a corporation. The company, in responding to the writ, by way of a special appearance, moved to quash it. Upon the court's denial of the motion the company refused to plead further, and judgment was entered against it. Thereafter, without notice to the company, Gordon et al. presented to the trial court a motion, supported by the affidavit of their attorney, for the appointment of a receiver for the company, and at once the trial court appointed a receiver. The affidavit referred to the judg ment, and alleged that execution had been an opportunity to be heard at the time of the determination. [2] Respondents further contend that if notice of an application for the appointment of a permanent receiver was required the original process, or writ of garnishment, was sufficient. It is difficult to see how the service of a writ of garnishment could give notice that later on, after judgment against the garnishee defendant, the judgment creditor would present to the court a motion and affidavit and at once take an order appointing a permanent receiver. The contention is without merit. Reversed, with direction to vacate the order appointing a receiver. HOLCOMB, C. J., and TOLMAN, MACKINTOSH, and MAIN, JJ., concur. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (107 Wash. 476) bile was being driven at a dangerous and il SCHWALEN v. W. P. FULLER & CO. et al. legal rate of speed, and that no warning was (No. 15354.) (Supreme Court of Washington. July 2, 1919.) 1. TRIAL 108-MISCONDUCT OF COUNSEL-DISCRETION OF Court. given of its approach, and that its windshield had been allowed to become covered with rainwater, so that the driver was unable to see pedestrians crossing the street. Appellant Fuller & Co. in its answer denied that Roy was driving the automobile at the time of the accident for its use and benefit, In a personal injury action, where counsel for plaintiff, in his examination of the jurors on voir dire, ingeniously and persistently so interrogates them as to suggest that an indem- or with its knowledge or consent, or within nity bonding company is interested in the de- the scope of his employment, and also pleadThe appelfense, the court, in the exercise of a wise dis-ed other affirmative defenses. cretion, should make a ruling which would dis- lant Roy in his separate answer made simicontinue such conduct. COLLISION ON STREETS-JURY QUESTION. It was not negligent, as a matter of law, for a driver of an automobile to allow rainwater to collect on the windshield. 4. TRIAL 233(4)—INSTRUCTIONS. In an action by a pedestrian injured by an automobile, contention of plaintiff being that collision took place on crossing, and contention of defendant being that it occurred at the intersection, the court should have instructed separately as to the reciprocal duties and rights of pedestrians and vehicles at street crossings and intersections; though the pedestrian had the right of way at both places, under a city ordi nance. Department 1. lar allegations to those contained in the answer of his coappellant. Testimony was introduced which indicated that Roy had allowed rainwater to collect on the windshield of the automobile and by reason of that fact the driver was unable to see where he was going, and that the accident was due to this cause. Trial resulted in a verdict for the respondent, which was not disturbed upon repondent's motion for new trial or for judg. ment notwithstanding the verdict. [1] Counsel for the respondent, in his examination of the jurors upon their voir dire, ingeniously and persistently so interrogated them as to suggest that an indemnity bonding company was interested in the defense of the action. While no direct statement was made that would indicate the interest of such bonding company, yet the impression was created that such interest existed. A matter presented as was this must be left to the ethics of the profession and the discretion of the trial judge, but where a course of conduct is persisted in apparently with the purpose of prejudicing the jury, the exercise of a wise discretion should call for a ruling which would discontinue such con duct. [2] A trial amendment was made to the pleadings, which allowed the introduction of Appeal from Superior Court, King Coun- a city ordinance providing: ty; John S. Jurey, Judge. Action by Mary Schwalen, executrix of the last will and testament of Joseph H. Schwalen, deceased, against W. P. Fuller & Co. and Frank Roy. Judgment for plaintiff, and defendants appeal. Reversed and remanded. C. J. Whittemore, Peters & Powell, and Kerr & McCord, all of Seattle, for appellants. Stanley J. Padden, of Seattle, for respond ent. "No person shall drive any vehicle that is so inclosed, constructed, or loaded as to prevent the driver thereof from having a clear and unobstructed view to the front, rear, and on both sides and based upon the pleading and introduc tion of that ordinance the court gave the following instruction: "I instruct you that on December 15, 1917, it was unlawful for any person to drive any vehicle that was so inclosed as to prevent the driver thereof from having a clear and unobstructed view to the front of said vehicle." And the further instruction that: MACKINTOSH, J. December 15, 1917, at the intersection of Twelfth avenue and East Union street, in the city of Seattle, the deceased was run into by an automobile owned by the appellant, W. P. Fuller & Co., and at the time being operated by the appellant Roy. The complaint charges, among other allegations of negligence, that the automo-jury." "You are instructed that a violation of a positive law is in itself negligence. But you are further instructed in this regard that whether recover would depend on whether or not such or not such negligence would entitle plaintiff to negligence was the approximate cause of the in For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (182 P.) We have not passed seriatim on all of the errors assigned, although we have considered them and have given a general view of such matters as we consider justify the granting of a new trial. The pleading, evidence, and instructions (law, and the court was therefore correct in in this regard were directed to the fact that denying the motion. at the time of the accident rainwater had accumulated upon the windshield to such an extent that the driver's view was impaired. Rain, fog, or snow are not "obstructions," within the meaning of this ordinance, which clearly has reference to mechanical obstructions, either permanent or temporary, in the "inclosing, construction, or loading" of the vehicle, such as would prevent the free vision of the driver. Such words, in the connotation used, cannot without violence be applied to natural atmospheric conditions. Judgment reversed, and the cause remanded for a new trial. HOLCOMB, C. J., and MITCHELL, MAIN, and TOLMAN, JJ., concur. (No. 15097.) (107 Wash. 676) (Supreme Court of Washington. July 29, 1919.) 188(2) SUFFICIENCY OF EVI [3] There being no other evidence in the case in regard to the violation of this ordinance except that referring to rain upon the HUSCHKE ▼. ARCADIA ORCHARDS CO. windshield, such alleged violation is not proved. The court could properly have charged the jury as to the common-law negligence of the driver in permitting the windshield to become clouded and to find whether, DAMAGES under the circumstances, that was negligence or not and the proximate cause of the injury, but it was prejudicial error to have instructed the jury that the situation constituted negligence as a matter of law. Tergeson v. Robinson Manufacturing Co., 48 Wash. 294, 93 Pac. 428; Jock v. C. & P. S. Ry., 53 Wash. 437, 102 Pac. 405; Rastelli v. Henry, 73 Wash. 227, 131 Pac. 643. DENCE. A verdict for damage for failure to furnish water to irrigate plaintiff's trees cannot be sustained where there was no definite proof of the difference between value of trees with and without water. Department 1. Appeal from Superior Court, Spokane County; D. F. Wright, Judge. Action by Ernest Huschke against the Arcadia Orchards Company. Judgment for plaintiff, and defendant appeals. Reversed. See, also, 89 Wash. 423, 154 Pac. 800. Lee & Kimball and Cullen, Lee & Matthews, all of Spokane, for appellant. [4] The traffic ordinances of Seattle give the pedestrian the right of way at street intersections or crossings in the district which was the scene of this accident. The contention of the respondent was that the collision took place upon the crossing, while the appellant's evidence tends to show that it occurred at the intersection. The court, in its instructions, combined a definition of the MACKINTOSH, J. In Huschke v. Arrights and duties at street crossing and inter- cadia Orchards Co., 89 Wash. 423, 154 Pac. section in one instruction. These instruc- 800, will be found a prior decision of this tions, possibly, were there no other error in case, which remanded it for a new trial. the case, would not be sufficiently erroneous The facts are set forth in the former opinto entitle appellants to a new trial, but upon ion, and it is therefore unnecessary to refer the retrial of the case it would be better to to them here. Upon the new trial, which instruct separately as to the reciprocal rights resulted in a favorable verdict for the reand duties of pedestrians and vehicles at spondent, evidence was introduced as to street crossings and intersections, and thus what would be a reasonable time to be afpresent appropriate instructions which the forded the appellant in which to furnish the jury could apply to the case as they find the supply of water called for in the contract. fact to be as to the exact location of the col- Evidence was also introduced tending to lision. Although the pedestrian may have show that the appellant had furnished such the right of way at both places, the jury water at the place designated, but that rewould have a right to be informed that great-spondent had made no attempt to take the er hazard attended the pedestrian in one sit uation than in the other. The evidence claimed by appellant Fuller & Co. to entitle it to judgment notwithstanding the verdict on the ground that it showed appellant Roy was not acting under the direction of Fuller & Co., or within the scope of his employment, is not sufficient to transform the question from one of fact to one of water, nor had he prepared his land for its reception. In Pasco Reclamation Co. v. Rankert, 73 Wash. 363, 131 Pac. 1143, we said: "The evidence fairly shows that the only reason the water has not been delivered to the appoint from which he desires to take the water, pellant is because of his failure to designate any and his failure to construct the necessary conduit thence to his land, as he agreed to do. The For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Indictment, charging commissioner of public welfare of county in aiding and abetting grocer to fraudulently obtain money from the county by presenting claim to county consisting of 13 fraudulent orders signed and delivered to grocer by the commissioner, held not duplicitous, there being but one offense and not 13; the gist of the offense being the obtaining of money by fraudulent and false pretenses. 3. INDICTMENT AND INFORMATION 125(20) DIFFERENT MEANS OF COMMITTING CRIME. Where a single offense may be committed in different ways or by different means, it may be charged in the information to have been committed by more than one of the ways or means, provided the ways or means charged are not repugnant to each other. 4. INDICTMENT AND INFORMATION FALSE REPRESENTATIONS. 125(6) Indictment may charge a number of false or fraudulent representations, where used in consummating offense charged. 5. CRIMINAL LAW 1114(2) — REVIEW-IN STRUCTIONS. [1] No statement of facts or bill of exceptions had been brought to this court, and therefore the only question which can now be considered relates to the indictment. This was demurred to on the ground, among others, that it charged more than one crime. The only question to be determined is whether the indictment was duplicitous. The indictment is too long to be here set out in full, but the facts therein stated may be summarized as follows: James J. Callaghan, the appellant, was commissioner of public welfare of King county, Wash., and was the authorized representative of the county for the disbursement of its funds for the relief of poor and indigent residents. On the 27th day of August, 1917, Gandolfo represented to the board of commissioners of King county, that Gandolfo & Co., a corporation, had furnished groceries and supplies of the value of $10 to each of 13 different persons giving the name and street address of each. At the same time he presented to the board of commissioners a claim against King county, in the sum of $130. This claim consisted of 13 false and fraudulent written orders, signed by J. J. Callaghan, the appellant, each for the sum of $10 and purporting to be signed by the persons named therein. The board of county commissioners, believing the false pretenses and representations made by Gandolfo and relying thereon, allowed the claim and authorized its payment. The county auditor delivered to Gandolfo a warrant against the county in the sum of $130, payable to Gandolfo & Co. Gandolfo presented this warrant to the proper officer of King county, and received thereon the sum of $130 in lawful money. No The pretenses and representations made by Gandolfo were false and untrue. groceries or supplies had been delivered to any of the persons named. The orders were wholly false and fraudulent. The signatures of all the parties upon the back of the orders, purporting to acknowledge receipt of the supplies mentioned therein, were forged. The appellant, as commissioner of public Appeal from Superior Court, King County; welfare for King county had aided and abetA. W. Frater, Judge. ted Gandolfo in obtaining the money, in the In absence of statement of facts or bill of exceptions, court, on appeal, cannot pass upon any question as to instructions. Department 1. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (182 P.) manner specified. The appellant had signed | single. But one offense is charged, even and delivered the orders to Gandolfo, know- though it may have been consummated by a ing and intending that the orders were to be number of false and fraudulent representapresented as a claim to King county by Gan- tions. dolfo & Co., by Lester Gandolfo, without any groceries or supplies of any kind having been delivered to the persons named in the orders, and knowing that the signatures of the persons named therein would be forged upon the orders, and that the forged orders would be presented as a claim and paid by the county. All the acts done were with the intent to deprive and defraud the county of the sum of $130. [2, 3] The appellant claims that the indictment charges 13 separate and distinct offenses, and is therefore bad for duplicity. The respondent claims that but one offense is charged which was the obtaining of $130 from King county. The position of the 'respondent is correct. The gist of the offense was the obtaining of the money by fraudulent and false pretenses. All of the steps taken leading up to the obtaining of the money were preliminary to the act. The rule is that where a single offense may be committed in different ways, or by different means, it may be charged in the information to have been committed by more than one of the ways or means provided the ways or means charged are not repugnant to each other. State v. Pettit, 74 Wash. 510, 133 Pac. 1014; State v. Gaul, 88 Wash. 295, 152 Pac. 1029; State v. Wingard, 92 Wash. 219, 158 Pac. 725. [5] Some objection is made to the instructions, but this cannot be considered. There being no statement of facts or bill of exceptions here, the court cannot pass upon any question as to the instructions. Morgan v. Bankers' Trust Co., 63 Wash. 476, 115 Pac. 1047. The judgment will be affirmed. MOUNT, MITCHELL, and TOLMAN, JJ., concur. HOLCOMB, C. J., did not participate. [4] The same rule applies when any number of false pretenses or representations may be used in consummating the final act or purpose to be accomplished by such false pre-a tenses or representations. Bishop's New Criminal Law, § 434. AGES. 418(16)-DELAY-SPECIAL DAM Where a seller of piles, to be delivered on certain date at a place in Washington to a salmon fisheries company, had no knowledge of conditions in Alaska, where piles were to be taken and used, the purchaser was not entitled In People v. Luttermoser, 122 Mich. 562, 81 to recover damages by reason of delay in de N. W. 565, the defendant was charged with livery, in that a piledriver in Alaska was tied obtaining money by false claims from a town-up on account of the absence of a tug used as ship. He was a justice of the peace and a a tender, sent to Washington and detained there member of the township board. He wrote out waiting for the piles. four orders in payment of claims against the township, and increased each of them $10 above what they should have been. Thereafter he presented these four orders to the treasurer of the township, and obtained the money thereon. There as here the objection was made that the information was bad for duplicity. In disposing of this case the court said: "The gist of the offense was the obtaining the money by the presentation of false or invalid orders. When this is stated, it answers the further objection that the information is bad for duplicity because in the same count several distinct, petty offenses are alleged, as these supposed distinct offenses consist of obtaining these several orders, but the averment as to obtaining the money is single." In the indictment in the present case the averment as to the obtaining of money is Department 1. Appeal from Superior Court, King County; J. T. Ronald, Judge. Action by C. P. Dickey, personally and as administrator of the partnership estate of Angevine & Dickey, against the Alaska Pacific Fisheries. Judgment for plaintiff, and defendant appeals. Modified. C. H. Hanford, of Seattle, for appellant. Million & Houser and James W. McBurney, all of Seattle, for respondent. TOLMAN, J. Both parties having appealed from the judgment below, they will be referred to as plaintiff and defendant. On December 28, 1917, these parties entered into a written contract, by the terms of which the partnership of Angevine & Dickey, now represented by plaintiff, agreed to furnish For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |