Action by E. G. La Breck and others | with her, she fell and caught her leg between against the City of Hoquiam. Judgment for the boards, and was injured. This action plaintiffs, and defendant appeals. Reversed was brought on account of that injury. At and cause ordered dismissed. Sidney Moore Heath and Jas. P. H. Callahan, both of Hoquiam, for appellant. F. M. Cook and T. H. McKay, both of Aberdeen, and W. H. Abel, of Montesano, for respond ents. MOUNT, J. The plaintiffs brought this action to recover damages for personal injuries alleged to have been received by Mrs. La Breck, by reason of falling upon a defective walk. On issues joined, the case was tried to the court and a jury, and resulted in a verdict and judgment in favor of the plaintiffs for $1,625. the close of the respondents' evidence, the appellant moved the court for a directed verdict, and, at the close of all the evidence, renewed the motion. These motions were denied, and the case was submitted to the jury. The principal, and, we think, the controlling question in the case is whether the city is liable for a walkway built by a property owner, for his private convenience, upon an unimproved street. The respondents rely upon the cases of McKnight v. Seattle, 39 Wash. 516, 81 Pac. 998, and Tait v. King County, 85 Wash. 491, 148 Pac. 586. In the first of these cases, we said: "The walk was not built by the city, but by private parties, and it is claimed that there was no sufficient evidence to the effect that the city had accepted it as a part of the highway. But this street was a public street of the appellant city, opened to the use of the public, and the city was bound to keep it in a reasonably safe condition for use by the public. If this duty of the city to remove it or repair it, and sidewalk rendered the street unsafe, it was the its duty in this regard is not affected by the fact that it may not have constructed the walk." In that case, it appears that the street was open to the use of the public. In this case, Twenty-Ninth street, south of Pacific avenue, was not open to the public. It was an unimproved street, so far as the city was concerned, except upon the west side, where there was a sidewalk. A large ditch ran south, down near the middle of this street. Mr. Price, on the opposite side of the street, had obtained permission from the city to build a private roadway to his woodhouse on the east side of the street. There is no claim, in the evidence, that Twenty-Ninth street, south of the improved part of Pacific avenue, was open to the public for any purpose. Apparently it was an unusable street, and not open to the public. The case of Tait v. King County, supra, was a case where a roadway had been adopted by the county, and had been permitted to become out of repair. We held, in that case, that it was the The facts, as shown by the evidence, are substantially as follows: Pacific avenue, in the city of Hoquiam, is a street 80 feet in width. This street runs east and west. The center of the street, to the width of 20 feet, was paved to the east line of Twenty-Ninth street, which runs north and south. TwentyNinth street is 60 feet wide, and has never been improved, or used as a street, except 16 feet in width in the center, at its crossing with Pacific avenue. At about the center of Twenty-Ninth street, a plank road, 16 feet in width, extended eastward on Pacific avenue. About 100 feet east of the west line of Twenty-Ninth street, Pacific avenue was closed. One Mr. Price resides upon property owned by him at the southeast corner of TwentyNinth street and Pacific avenue. In the year 1914, he obtained permission from the city to lay a plank roadway on the east side of Twenty-Ninth street, in order that he might haul wood to his property. This plank roadway was built of boards, 16 feet in length, which had been used previously upon Pacific avenue. Twenty-Ninth street had not been improved by the city, except upon the west side, where a sidewalk had been laid, running to the south. Mr. Price, for his own convenience, and without permission from the city, placed two boards across Twenty-duty of the county to repair the road, and Ninth street, over a ditch, or slough, on the west side of Twenty-Ninth street, to the sidewalk on the opposite side of the street from his house. These two boards were 21⁄2 inches thick, by 12 inches wide, and 20 feet long. They were placed about 4 inches apart. Where the boards crossed the ditch, they were about 3 or 4 feet above the bottom of the ditch. In order to brace these boards, Mr. Price drove a stake into the mud, under each board, at about the middle of the ditch, so as to prevent these boards from sagging when they were walked upon. These boards were laid across Twenty-Ninth street at about the line of the intersection of Pacific avenue where that avenue was unimproved. Mrs. La Breck, on August 5, 1915, in the daytime, went to Mr. Price's house, and, in cross that the failure of the county so to do constituted negligence, for which a recovery might be had. Neither of those cases decide the point presented here. The respondent relies upon a number of cases from other jurisdictions, generally to the effect that a municipality is liable for the defective condition of a street or sidewalk, even though built by private parties. We think there can be no doubt of this rule, in so far as it applies to streets which have been thrown open to public use, or have been improved by the city, or by private owners along the street, at the direction of the city. In the case of Saulsbury v. Village of Ithaca, 24 Hun (N. Y.) 12, where one Turner, who owned a house and lot on the east side of Brindley street, had built a sidewalk to en State street, which sidewalk was elevated 3 was not negligence, and the plaintiff could not or 4 feet above an old cellar or excavation, recover.' into which the plaintiff fell, after first falling In the case of Ruppenthal v. City of St. upon the sidewalk, and where it was conced-Louis, a Missouri case, 190 Mo. 213, 88 S. W. ed that the city never aided or contributed to the building, maintenance, or repair of the sidewalk, or any other sidewalk at that place, and had never ordered the sidewalk to be built, the court said: "Under these facts, the defendant claims that the building of a sidewalk along Brindley street was within its discretion, and that it is not liable in a private action for omission to exercise discretionary functions for the benefit of the public at large. Or, to use the language of Judge Dillon (2 Mun. Corps. § 753): 'Where a corporation has a discretion as to the time and manner, of making corporate improvements, a private action will not lie against the corporation for omitting or neglecting to act; and the reason is that such powers are conferred to be exercised or not, as the public interest is deemed to require.'" Then, after determining that the power to improve streets is of a judicial nature, the court said: "The act of Turner in building a walk to his tenant house from state street was his act, and not the act of defendant. It was not an obstruction to the street calling for the action of the trustees to remove it. It was not an illegal use of the street on the part of Turner to which defendant could object. If the work was unskillfully or negligently done, or if it was allowed to remain in an unsafe condition, it was not the fault of defendant. The defendant is not connected with the walk so as to create any liability by reason of its condition. A liability for negligence can be established against a municipality only by showing negligence, actual or constructive, by its officers or authority. In this case it is not shown." And in Hiller v. Village of Sharon Springs, 28 Hun (N. Y.) 344, in referring to the Saulsbury Case, above quoted, it was said: "In Saulsbury v. Ithaca, above cited, it was claimed to be the absolute duty of the village to build sidewalks wherever it had streets. And this, it was beld, was incorrect. Nor can it be said that whenever a street is opened in any part of a city or village, no matter how unfrequented, if an occupant lays down stones or planks along the side of his property, the city or village at once becomes liable to keep them in repair. In country roads there are usually no sidewalks; and evidently it must be left to the judgment of the municipal authorities to say where sidewalks are needed, and how wide they should be. But if an occupant has constructed a suitable sidewalk, not for his own use merely, but for the public, and if. for many years, the public have used it, then the municipal authorities may be considered to have practically adopted it." In Crawford v. Mayor, etc., of City of Griffin, 113 Ga. 562, 38 S. E. 988, where a private property owner built a bridge from the street to the sidewalk, over a gutter or ditch, for his private convenience, and where the bridge was afterwards removed by the city, and replaced, the court said: 612, where an 80-foot street had been improved, and opened to the public, in the center thereof, and the city had not invited the public to use the strips on each side of the street, it was held that the city was not liable for injuries to a pedestrian caused by a defect in a sidewalk, which was constructed without the consent or authority of the city, the condition of which walk was such as to indicate to a person exercising ordinary care that the sidewalk portion of the street had not been improved. The [1, 2] It is not the duty of cities to improve all streets which are platted within the boundaries thereof. It is the duty of cities to improve only streets which are necessary, and to the extent necessary. city, of course, is the judge of such necessity. It would be impossible for any city, except one which is thickly populated, to improve all its streets within its boundaries. Where a city has improved its streets, of course it must keep such streets in reasonable repair for the uses for which they are intended. Sidewalks, built by the city, or under the direction of the city, must, of course, be kept in reasonable repair, but the city ought not to be held responsible for sidewalks, or walks of any kind, built by private individuals, for private convenience, in remote, outlying districts of the city, without notice to the city. [3] In this case, there is no dispute as to the fact that Twenty-Ninth street, south of Pacific avenue, was in a remote part of the city. That portion of the street was not open to public use. It had never been improved. A large ditch, or slough, ran down near the center of the street. Mr. Price, who owned property on the east side of the street, had obtained permission from the city to build a private way from Pacific avenue to the rear of his premises, for the purpose of hauling wood to his premises. Without the permission of the city, and without notice to the city, he had built this twoboard plankway, for his own convenience, across the street, to connect with the sidewalk on the opposite side. It was not shown that the city had notice that this walkway was built, or being used. It is claimed that the walkway had remained there for a sufficient length of time that the city should have known it, but the mere fact that the city should have known, or the fact that the city did know it, did not render the city liable, because the walk was a private way, for the private convenience of Mr. Price, who built it. "It was a mere private bridge, built solely for the convenience of an individual. It was not shown that the city had built it. The mere [4] It is true, one or two neighbors, and fact that the city took it up and replaced it, and the mail carrier, testified that they had used made some repairs upon it, did not constitute it a public bridge. The city being under no the walkway. Probably other persons had duty to keep up the bridge, its failure to do so used it for the purpose of going to Mr. Price's home, as the respondent herself did, [ very threshold which is determinative of this but clearly that would not render this pri- appeal. It appears that prior to the appointvate way a public use. It was a private ment of the receiver in this action a receiver walk for a private person, notwithstanding had been appointed for appellant in its home the fact that a few neighbors frequently used it to go to Mr. Price's house. We are satisfied, for these reasons, that there was no liability on the part of the city, and that the motion for a directed verdict should have been sustained. state, Illinois, and by the laws there in force the receiver acquired absolute title to the property of appellant as fully as though he had been an assignee thereof and was in fact a quasi assignee or successor. Republic Life Ins. Co. v. Swigert, 135 Ill. 150, 25 N. E. 680, The judgment is therefore reversed, and 12 L. R. A. 328. It is respondent's contention the cause ordered dismissed. ELLIS, C. J., and HOLCOMB, FULLERTON, and PARKER, JJ., concur. (95 Wash. 476) DROPPELMAN v. ILLINOIS SURETY CO. (No. 13801.) that, because of appellant's nonexistence it had no right to appear and defend, and that the proper procedure would be for the Illinois receiver to intervene and set up the defense interposed here by appellant. While we agree with respondent that appellant no longer has any existence, we do not agree with the conclusion derived therefrom that it is incumbent on the Illinois receiver to intervene. Since respondent has instituted this action she must first acquire jurisdiction, A personal judgment cannot be obtained and by advancing the argument that the reagainst a corporation that has been dissolved. ceiver was the only proper person to defend 2. CORPORATIONS 691-FOREIGN CORPORA- this action because of appellant's nonexistTIONS-DISSOLUTION-ACTION="PROCEEDING ence, she has, in the same breath, admitted (Supreme Court of Washington. April 3, 1917.) 1. CORPORATIONS 630(6)-DISSOLVED COR PORATION-ACTION-JUDGMENT. QUASI IN REM." An action, asking for the appointment of a receiver of a foreign corporation which has been dissolved, a receiver having been appointed in its home state, is a "proceeding quasi in rem," and cannot be maintained, a defendant to pro ceed against being essential except in proceedings strictly in rem. [Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 2673-2677. For other definitions, see Words and Phrases, Second Series, Quasi in Rem.] Department 2. Appeal from Court, King County; Mitchell Judge. Superior Action by M. J. Droppelman against the Illinois Surety Company. From an order appointing a permanent receiver and overruling defendant's motion to quash, it appeals. Reversed. Piles & Howe and Earl M. Brockett, both of Seattle, for appellant. Tucker & Hyland, of Seattle, for respondent. HOLCOMB, J. This is an action to recover a personal judgment against appellant, a foreign corporation, for professional services rendered by the assignors of respondent. The appointment of a receiver was also asked, to take charge of all properties in the state of Washington belonging to appellant. A temporary receiver was appointed, which appointment was later made permanent, although appellant appeared specially and moved to quash the order appointing the temporary receiver, and objected to his being made permament on the ground that the court was without jurisdiction. This appeal is taken from the order making the receiver permanent and overruling appellant's motion to quash. that she has sued a corporation which has been dissolved and no longer exists, and, judging from the Illinois statutes, there can be no doubt of its nonexistence. al judgment cannot be obtained against a corporation that has been dissolved (Martyne v. American Union Fire Ins. Co., 216 N. Y. 183, 110 N. E. 502), it is apparent that this action must fail unless an action asking for the appointment of a receiver is in the nature of an action in rem to such an extent as to give the court jurisdiction by reason of the property being within the jurisdiction, even when there has been no service on the owner of the property sought to be turned over to the receiver. The most favorable construction on this question that respondent can contend for is that this is an action quasi in rem, which, according to the cases of Gassert v. Strong, 38 Mont. 18, 98 Pac. 497, and Freeman v. Alderson, 119 U. S. 187, 7 Sup. Ct. 165, 30 L. Ed. 372, differs from actions which are strictly in rem, in that in the former there must be service on the defendant. In a proceeding such as this the great object of the remedy is to secure the property or thing in controversy, so that it may be subjected to such order or decree as the court may make. It is held to be a proceeding quasi in rem. 34 Cyc. 18. [1, 2] Since it is well settled that a person Respondent relies largely upon the statement contained in the case of Pacific Coast Coal Co. v. Esary, 85 Wash. 448, 450, 148 Pac. 579, 580, as follows: "The rule sustained by the authorities is that the courts of one state have no jurisdiction to appoint a receiver for a corporation organized under the laws of another state, but that a receiver may be appointed for the assets of the There is a jurisdictional question at the foreign corporation which are within the partic ular state where the action is brought, and these may be subjected to the claims of the creditors." In that case the corporation was one or ganized in a foreign state, and it was denied that the courts of this state had power to appoint a general receiver therefor, but it was stated that they did have power to appoint a receiver of the assets of that corporation in this state. The distinction between that case and this is that, in that case, the foreign corporation had not been dissolved and was not in process of dissolution, and jurisdiction to appoint a receiver of the local assets could be obtained in quasi in rem proceedings. In Hawley v. Bonanza Queen Min. Co., 61 Wash. 90, 91, 111 Pac. 1073, a case not cited by either party hereto, it was said: It "The complete dissolution of a corporation destroys its capacity to be sued at law because a judgment can no more be rendered against a dead corporation than against a dead man. cannot thereafter be made a party defendant in an action brought by a receiver to set aside a fraudulent conveyance of its assets. The necessary effect of the dissolution of a corporation is to abate all actions pending against it at the time of its dissolution, in the absence of a saving statute providing for the continuation of such actions. Decisions are sometimes met with which hold in general terms a doctrine opposed to that just stated. Thus, according to an early decision in Missouri, the expiration of the charter of a corporation does not affect legal proceedings already commenced against it. It is enough to say of such decisions that unless they can be justified by some local statute, they were badly decided. It follows that a judgment rendered against a corporation after it has been dissolved is voidable, in the sense that it will be reversed on error, or that the execution of it will be perpetually enjoined. Other authoritative courts have gone to the length of holding that a judgment, rendered against the corporation after its dissolution, although in an action previously commenced, is not merely erroneous, but absolutely void.' 10 Cyc. 131 et seq." And, to apply the same rule applied in the case just quoted: * * * "A defendant to proceed against is essential, except where the proceedings are strictly in rem." There was no service on the Illinois receiver who was the owner of the property at the time of the commencement of the action, and the action must therefore fail. Reversed. him to prescribe or act for the patient," does not preclude a physician from testifying without consent of patient, in a personal injury suit by her, as to matters learned in an examination, for the express purpose of testifying, after she had ceased to be his patient. [Ed. Note.-For other cases, see Witnesses, Cent. Dig. 8 771.] 2. WITNESSES 287(4)-CROSS-EXAMINATION -REDIRECT EXAMINATION-SCOPE. 3. TRIAL132-ARGUMENT OF COUNSEL In a personal injury suit, failure of the court to sustain an objection and instruct the jury to disregard a remark of counsel in argument, to effect that it was not proven that plaintiff sat up in bed on the third day, because "we were not allowed to introduce the evidence," is harmless, where counsel, in response to objection, withdraws statement and asks jury not to con[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 315, 316.] sider it. 4. APPEAL AND ERROR 1068(1)-HARMLESS ERROR-INSTRUCTIONS-CURE BY VERDICT. Where, in a personal injury suit by a passenger, the jury returns a verdict in his favor, he cannot complain of error in giving or refusing instructions none of which are upon the amount of recovery. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4225; Trial, Cent. Dig. § 525.] PER CURIAM. Annie Strafford, the wife of the other plaintiff William Strafford, while a passenger upon a train of the Chicago, Milwaukee & St. Paul Railroad Company, was injured through the collapse of a trestle on the railway line over which a train of that company was passing. The trestle, ELLIS, C. J., and MOUNT, FULLERTON, which was built above the intersecting line and PARKER, JJ., concur. of the Northern Pacific Railway, had been weakened by the projecting boom of a crane carried as freight on a train of the latter railway company. The boom had swept against the supports on one side of the tres- . tle and broken and shattered them so as to render the trestle insufficient to support the (Supreme Court of Washington. April 3, 1917.) 1. WITNESSES 209-CONFIDENTIAL COMMU-weight of a train. Some eight or ten minutes NICATIONS-PHYSICIANS-RESULT OF EXAM INATION. Rem. Code 1915, § 1214, providing that "a regular physician or surgeon shall not without the consent of his patient, be examined in a civil action as to any information acquired in attending such patient which was necessary to enable after the happening of this incident, a passenger train of the Chicago, Milwaukee & St. Paul Railroad approached the trestle, and, either not heeding or not seeing a brakeman of the Northern Pacific Railway, who was For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes was permitted to testify fully. Clearly this was not error. As to these examinations he was as competent to testify as any other physician or surgeon would be under the same circumstances; the fact that he had previously treated her did not preclude him from testifying to matters he had subsequently learned as to her condition under circumstances not precluding his right to testify. In order to render a physician incompetent, the information which he is called upon to disclose must have been acquired while he was attending the patient in a professional capacity for the purpose of treating her ailments. There is no privilege when the examination is made by the physician for the express purpose of publishing the results; such, for example, as testifying in an action for personal injuries. There was therefore no error committed in the admission of the doctor's testimony. attempting to flag it, passed on to the tres- | to discoveries made at these examinations he tle, which immediately gave way under the weight of the train. Mrs. Strafford was a passenger in the day coach of the passenger train, which was crushed when precipitated to the ground below. She was thrown face downward, and was struck by some object falling or pressing upon the pelvic region of her back, inflicting internal injuries, from which she suffered considerable pain and ensuing weakness. She was transported by the Chicago, Milwaukee & St. Paul Road to the Tacoma General Hospital, where she was attended by the company's physicians, 'Drs. Willard and Shafer. After being treated at the hospital for 3 weeks and 2 days, she was cared for by her sister in South Tacoma for about 5 months, when she was removed to her home on a farm near McKenna. Mrs. Strafford and her husband brought an action for the recovery of damages for personal injuries, joining as defendants both of the railroad companies and Jacob Heether, conductor on The same is true of the testimony of Dr. the Northern Pacific's freight train which had Shafer. While he had formerly treated the caused the injury that weakened the Milwau- | appellant in a professional capacity, he testikee trestle. A general verdict was returned, fied to no condition the knowledge of which finding in favor of the Chicago, Milwaukee & St. Paul Railroad Company and finding against the Northern Pacific Railway Company and Jacob Heether, fixing the amount of the recovery against the last-named defendants in the sum of $1,650. From the judgment thereon plaintiffs appeal, assigning numerous errors which it was claimed were prejudicial because tending to influence the jury to reduce the amount of their award. was acquired by him while so treating her. He also subsequently examined her under circumstances similar to those related of Dr. Willard, and testified to conditions learned at such examination. The statutory rule was not violated in permitting him so to do. State v. Winnett, 48 Wash. 93, 92 Pac. 904. [2] A contention is also made in this connection that the court erred in overruling objections to the redirect examination of 'Dr. [1] The first contention of the appellants is | Willard as to the conversations between him that there was error in permitting Drs. Wil- and Mr. Teats, of counsel for appellants. lard and Shafer, who were respondents' phy- But the record discloses that appellants had sicians furnished by them to care for Mrs. elicited a part of the conversation on crossStrafford, to testify to what they learned re-examination, and that respondents on redispecting the nature of her injuries. The ob-rect examination merely went into the whole jection is founded on the statute (Rem. Code, of the conversation. This they were entitled § 1214), which provides: to do. "A regular physician or surgeon shall not, without the consent of his patient, be examined in a civil action as to any information acquired in attending such patient, which was necessary to enable him to prescribe or act for the patient." [3] The next contention is that the court erred in not sustaining an objection to the argument of respondents' counsel questioning the right of appellants to object to Drs. Willard and Shafer testifying in the case, and A careful examination of the record, how-in refusing to instruct the jury to disregard ever, at the places pointed out by the appel-it. The following appears in the record: lants does not disclose that the doctors were show that Mrs. Stafford got up on the third day, but that we did not prove it. We expected to show that the plaintiff sat up in bed on the third day, but we did not, and you know why we did not, and at whose instance we were not allowed to introduce the evidence. Why were not Dr. Willard and Dr. Shafer permitted to testify (interrupted) asked or permitted to testify as to any in-criticizes us because we stated that we would "Mr. Quick (arguing to the jury): Mr. Teats formation acquired by them while attending the appellant as her physicians or surgeons. Dr. Willard was asked to describe, and did describe, the nature and extent of the examination he made while the appellant was a patient in the hospital under his care, but was expressly warned by counsel not to state what he found as the result of his examination, and heeded the admonition. After he had answered counsel's questions he was asked and stated that he had made two subsequent examinations of the appellant, not as her physician or surgeon or for the purpose of treating her, but for the purpose of ena "Mr. Teats: We object to that line of argument. In the first place, Dr. Shafer did testify, and in the next place, under the statute he is absolutely precluded from making such argu ment. "The Court: I am not certain that the decision goes that far. The plaintiff may have an Proceed. exception. "Mr. Quick: If counsel objects, I will withdraw that statement and ask the jury not to con |