SERVANT-Scope of ORDER-NEGLIGENCE OF

MASTER.

committed the wrong but on the doctrine of | 4. MASTER AND SERVANT (§ 89*)-INJURY TO respondeat superior, the rule of law that renders masters liable to third persons for Plaintiff and G. and W., who were general wrongs committed by their servants while laborers in a steel plant, were direct d by the the servants are engaged in the performance foreman to cool the neck of a furnace and reof their master's business. Indeed, so far move the slag therefrom. It was customary after slag was removed from the furnace to dump from the appellant being liable for the in-it on the furnace floor until cool enough to be jury to the wagon, Taylor is liable over to removed by persons employed for that purpose. the appellant for any damage the appellant Plaintiff and G. began removing brick from the may be compelled to pay on account of the furnace, placing the brick behind them, while W. poured water into the furnace neck to cool the injury caused by the collapse of the wagon. slag. When all the brick had been removed Doremus v. Root, 23 Wash. 710, 63 Pac. 572, but the last row, G. told plaintiff to "make 54 L. R. A. 649. room," whereupon plaintiff began piling the brick around the furnace, and while doing so noticed a block of slag a few feet from the furnace, which he broke in order to remove it.

The judgment appealed from is affirmed.

DUNBAR, C. J., and MOUNT and PAR- The center of the block was molten and ran out KER, JJ., concur.

(64 Wash, 269)

PONELLI v. SEATTLE STEEL CO. (Supreme Court of Washington. July 24, 1911.)

1. MASTER AND SERVANT (§ 190*)-FELLOW SERVANTS-VICE PRINCIPAL.

Plaintiff and G. and W., who were employed as general laborers in a steel plant, were directed by the foreman to cool the neck of a furnace and remove the slag therefrom. It was customary after slag was removed from the furnace, and was cool enough, to dump it on the furnace floor until it was cool enough to be removed by persons employed for that purpose. Plaintiff and G. began removing brick from the furnace, placing the brick, behind them, while W. poured water into the furnace neck to cool the slag. When all the brick had been removed but the last row, G. told plaintiff to "make room," whereupon plaintiff began piling the brick around the furnace, and while doing so noticed a block of slag a few feet from the furnace, which he broke in order to remove it. The center of the block was molten and ran

out on the floor, and came in contact with water

which had run down from the neck of the furnace, causing an explosion injuring plaintiff. Held, that plaintiff and G. were fellow servants; the fact that G. took the lead in directing the work not making him a vice principal. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 449-474; Dec. Dig. S 190.*]

2. MASTER AND SERVANT (§§ 101, 102, 103*)DUTY TO PROVIDE SAFE PLACE FOR WORK.

It is the duty of a master to provide a reasonably safe place in which his servants may perform their work, and to provide them with reasonably safe appliances with which to work, but the details of the work may be left to the servants themselves.

[Ed. Note. For other cases, see Master and Servant. Cent. Dig. §§ 173, 175; Dec. Dig. $$ 101, 102, 103.*]

3. MASTER AND SERVANT (§ 190*)-FELLOW

SERVANTS-VICE PRINCIPAL.

Where a master intrusts to a servant the duty of contributing to the safety of the place in which other servants are at work, such servant, while in the performance of that duty, is a vice principal.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 449-474; Dec. Dig. § 190.*]

on the floor, and came in contact with water which had run down from the neck of the furnace, causing an explosion injuring plaintiff. Held, that the employer was not responsible for the injury, as the direction to "make room" did not include the breaking and removing of the block of slag, but referred only to the bricks, and permitting the escape of the water from the neck of the furnace was not such an act of negligence as to make the employer liable; the men themselves being responsible for that condition.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 153-156; Dec. Dig. § 89.*]

5. MASTER AND SERVANT (§ 150*) - NEGLI-
GENCE OF MASTER-FAILURE TO WARN.
warn plaintiff of the danger, as the doctrine of
needful warning extends only to those appli-
ances made use of by the servant in his work,
in his work, and to such as can be reasonably
or to such hidden dangers as he is subject to
anticipated by the master.

The master was not liable for failure to

Servant, Cent. Dig. § 297; Dec. Dig. § 150.*]
[Ed. Note.-For other cases, see Master and

Department 2. Appeal from Superior
Court, King County; Wilson R. Gay, Judge.

Action by P. Ponelli against the Seattle Steel Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with instructions to dismiss.

Kerr & McCord, for appellant. Joseph M. Glasgow, for respondent.

MORRIS, J. Respondent while in the employ of appellant was injured, and this appeal is taken from a judgment awarding him damages for such injury.

The determinative facts are these: On the morning of November 15, 1909, respondent, who was a common laborer performing general work around the steel plant, was instructed by his foreman, in connection with two other employés, Wagner and Gentelee,

to cool out the neck of a furnace and remove the slag therefrom. There were a number of furnaces in appellant's plant, from which when in use it was necessary to draw off the slag. This was drawn off while in a molten state, into a cinder buggy, having a receptacle 12 inches wide at the bottom, 15 inches wide at the top, and 12 inches deep. The slag is allowed to remain in this buggy until

1

The appellant moved for a directed verdict at the conclusion of the evidence, which was denied. It follows from what we have said it should have been granted.

The judgment is reversed, and the cause remanded, with instructions to dismiss.

CHADWICK. CROW, ELLIS, and GOSE, JJ., concur.

(64 Wash. 275)

CITIZENS' SAVINGS BANK v. HOUTCH-
ENS et al.

(Supreme Court of Washington. July 24, 1911.)
1. BILLS AND NOTES (§ 474*)-ACTION ON
NOTE-WAIVER OF DEFENSES.

[5] The last assertion of negligence is in [sulted in the injury complained of; and lamthe failure to warn. The doctrine of needful entable as is the condition of respondent warning or instruction does not apply to this no liability can be fixed upon appellant, unsituation. It extends only to those appli- less its negligence is shown to be the proxances and instrumentalities made use of by imate cause of his injury. the servant in his work, or to such hidden dangers as he is subjected to in his work, and to such as can be reasonably anticipated by the master. Nordstrom v. Spokane & Inland Empire R. Co., 55 Wash. 530, 104 Pac. 809, 25 L. R. A. (N. S.) 364. Had there been any hidden danger in taking down the neck of the furnace, or in cooling it with water, or in afterwards taking out the slag, which was the work respondent was sent to do, it would have been the duty of the appellant to give warning of such danger that it might be avoided. Or had the breaking of the blocks of slag been a necessary part of his work, such duty might have been extended to include a warning of its danger. But the breaking of these blocks of slag had nothing to do with cleaning out the furnace. There was no connection between the two acts. Neither could the appellant anticipate that respondent would attempt to break these blocks while engaged in cleaning out the furnace, knowing it had provided competent men with full knowledge of the danger, who were there to do that very thing. Respondent was therefore injured in doing an act he was not called upon to do, and which was no part of the work he was sent to perform. The presence of the block of slag near where respondent was working did not make the place unsafe, as there was no danger to respondent from the block itself. It was only his unnecessary and uncalled for act that produced the danger. Had he undertaken that only which he was directed to do, no danger would have befallen him, either from the act itself or the place provided for its performance.

Respondent relies upon a number of cases, including Northport Smelting & Refining Co. v. Twitchell, 156 Fed. 643, 84 C. C. A. 355, where injury had occurred because of a lack of knowledge that molten iron or slag will explode when brought in contact with water, rust, ice, or dampness. But in all those cases, as in the Northport Case, the injury was to the employé, who was necessarily handling the hot mass, without knowledge of its dangerous tendency, and would be au

thoritative here, had this injury occurred,

had respondent been sent by appellant to break up or remove this slag, without warning of the latent danger. In those cases the master might have anticipated the act which produced the injury, as a necessary part of the directed work. In this case there was no reason for the master to anticipate that respondent would attempt to break up and remove the slag.

Defendants, in an action on a note, did not waive their affirmative defenses of fraudulent representations, breach of warranty, and fraudulent procuring of possession of the note by alleging in the answer that plaintiff had actual knowledge of such false representations when it became the owner and holder of such note, as in the complaint alleged.

[Ed. Note.-For other cases, see Bills and

Notes, Dec. Dig. § 474.*]

2. BILLS AND NOTES (§ 537*)-ACTIONS-JURY QUESTION-HOLDER OF NOTE IN DUE COURSE.

In an action on a note, in which the defense was fraudulent representations, etc.. whether plaintiff was a holder in due course held a question for the jury.

[Ed. Note. For other cases, see Bills and Notes, Cent. Dig. § 1879; Dec. Dig. § 537.*] 3. BILLS AND NOTES (§ 494*)-ACTIONS-BUR

DEN OF PROOF.

In an action on a note, the burden was upon defendants to prove their affirmative defenses that it was obtained by fraudulent representations, breach of warranty, and the fraudulent procuring of possession of the note.

[Ed. Note. For other cases, see Bills and Notes, Dec. Dig. § 494.*]

4. TRIAL (§ 140*)-CREDIBILITY OF WITNESSJURY QUESTION.

The credibility of an interested witness was for the jury.

[Ed. Note. For other cases, see Trial, Cent. Dig. §§ 334, 335; Dec. Dig. § 140.*]

Court, Stevens County; D. H. Carey, Judge.
Department 2. Appeal from Superior

Action by the Citizens' Savings Bank against C. T. Houtchens and others. From a judgment for defendants, plaintiff appeals.

Affirmed.

Anderson & Stull, for appellant. Jesseph & Grinstead, for respondents.

CROW, J. Action by the Citizens' Savings Bank, a corporation, of Columbus, Ohio. against C. T. Houtchens, J. E. Seale, S. W. Champ, S. H. Bryan, M. W. Teeple, W. L. Pike, H. M. Jaggers, O. P. M. Simcoke, James We cannot find any act of appellant upon Crawford, and A. G. Smith, on a promissory which negligence can be predicated, which re-note claimed to have been purchased from

McLaughlin Bros., payees, for value, before maturity and in due course. The defendants answered with denials, and pleaded three affirmative defenses, by which, in substance, they contended the note was without consideration, had been fraudulently obtained, had not been delivered to the payees, had not been signed by the defendant Houtchens, or by any other person authorized to sign for him, and that the plaintiff had obtained the note with notice and knowledge of infirmity in the instrument and defect in the title of the payees who negotiated it. A verdict was returned for defendants. The plaintiff has appealed from the final judgment entered thereon.

that is to say, evidence as to the alleged fraud between the original parties to the note in suit; but they fail to support the further allegations contained in said affirmative defenses, to wit, the allegations that appellant had knowledge of the facts and circumstances constituting said alleged fraud."

The vital question on this appeal is whether, under sections 3443 and 3450, Rem. & Bal. Code, appellant has been shown to be a bona fide holder for value, before maturity and in due course, the title of the original payees having been defective, under section 3446, Rem. & Bal. Code.

ployés, had actual knowledge of all of said false and fraudulent statements, representations, and pretensions at the time it became the owner and holder of said note, as in the complaint alleged." Appellant's contention seems to be that this affirmative allegation is inconsistent with the previous denials of the answer, in that it in effect admits (1) appellant's incorporation, and (2) that appellant is owner and holder of the note.

[1] It is, however, first contended that the trial court erred in denying appellant's moRespondents are citizens of Stevens coun- tion to strike the three affirmative defenses. ty, in this state. The note is for $1,400, Appellant alleged its incorporation under the dated September 9, 1905, due September 1, laws of Ohio; that McLaughlin Bros. had in1907, bears interest from date, and is payable dorsed the note in blank, and that appellant to the order of McLaughlin Bros., at Col- is now the owner and holder thereof. These ville, Wash. Respondents' evidence shows allegations were denied. In pleading their that one Olmstead, representing McLaughlin affirmative defenses, respondents, however, Bros., whose headquarters were in Colum- alleged: And the said plaintiff bus, Ohio, and Kansas City, Mo., made a corporation, its officers, agents, and emproposition to sell to respondents a stallion then in his possession, which he represented and warranted to be a first-class, imported Percheron horse, sound in every respect; that his representations were false and fraudulent; that they were relied upon by respondents; that in compliance with Olmstead's insistence and demand a corporation to own the horse was to be organized by respondents, under Olmstead's direction and supervision; that he fraudulently procured possession of the note without its being delivered; that he immediately left Colville, taking the note with him; that he has not been there since; that the corporation was never formed; that the horse, not being as warranted, was tendered to McLaughlin Bros. and a return of the notes demanded; that later two other notes, each of like amount, fraudulently procured from respondents, were returned to them; that the horse was returned to McLaughlin Bros. through another agent; and that the note now in suit was never returned to the makers. The facts showing the alleged fraud of Olmstead, the nondelivery of the note, and the want of consideration are more fully stated in the pleadings and briefs, but need not be here recited in detail. Sufficient evidence was introduced by respondents to sustain their affirmative defenses.

Assuming, without deciding, the effect to be as contended, appellant would not by reason of such alleged inconsistency be entitled to an order striking the affirmative defenses of fraud, failure of consideration, and nondelivery, even though it might possibly be relieved from the necessity of introducing evidence to prove its incorporation. Appellant, as indorsee, might hold and own the note, but if it was not as such indorsee a holder in due course, for value, before maturity, in good faith and without notice of any infirmity in the instrument or defect in the title of the payees who negotiated it, appellant would own and hold it subject to the affirmative defenses pleaded; such defenses being sustained by competent proof. The motion, was properly denied.

By its remaining assignments, appellant, in effect, contends that the trial court erred in denying its motions for a directed verAppellant made no attempt whatever to dict, and for judgment non obstante verediccontrovert or rebut any of this evidence, but to. Its entire contention on this proposition in its brief says: "The respondents, though seems to be that it has shown ownership in denying the allegations of the complaint, due course, for value, before maturity, withhave utterly failed to substantiate such de-out notice or knowledge. The only evidence nial by evidence, but confine their proof to of an assignment to appellant or its alleged the support of their affirmative defenses. ownership or want of notice was given by As to these defenses, aside from the allega- Frank R. Shinn, its cashier. No corroborations contained therein imputing knowledge tion of his testimony, other than possession of defect in title to the appellant, they ap- of the note and a blank indorsement of the pear to have a preponderance of evidence-payees thereon, appears in the record. No

books, records, or documents of the bank, | 801. Appellant's only attempt to sustain the disclosing the transaction or showing pay- burden imposed upon it was by means of the ment of value, were produced. Shinn testi- unsupported testimony of Shinn, an interestfied he had known the payees and the char-ed witness. His credibility was for the jury, acter of their business for many years; that and they refused to believe him. Appellant he purchased this note with 25 others on Au- therefore failed in its attempt to show it gust 15, 1907, shortly prior to its maturity; was a holder in due course, after respondthat he forwarded it to Colville, for collec-ents by their evidence had shown the origtion, where it was protested for nonpayment; inal payees' title was defective. that he had previously purchased numerous notes from McLaughlin Bros.; that litigation had arisen on a number of them; that he expected McLaughlin Bros. to protect the bank; and that they would protect it on this note for expenses of this litigation, although he had no written agreement to that effect, other than the indorsement. No other officer or employé of the bank testi

fied. McLaughlin Bros. and Olmstead, their agent, failed to appear as witnesses, and their absence was not explained.

There was no evidence that Shinn or the bank knew any of the respondents, or made any investigation as to their solvency. Yet almost immediately after making the purchase, appellant forwarded the note to Colville for collection, and shortly thereafter instituted suit in this jurisdiction against the makers, although McLaughlin Bros. then maintained headquarters in the city of Columbus, and were to protect the note as indorsers. These circumstances would' seem to indicate a singular anxiety on the part of the bank to invest in lawsuits, rather than in first-class negotiable securities. The evidence of this cashier, although undisputed by oral testimony of any other witness, is that of an interested witness. Absence of what he carefully refrains from telling, to say nothing of his affirmative statements, considered in the light of his interest and the attending circumstances, detracts materially from the convincing force of his evidence, the credibility of which was for the jury.

[2, 3] Whether appellant was a holder in due course was to be determined by them. The burden imposed upon respondents was to sustain the allegations of their affirmative defenses. This they evidently did to the satisfaction of the jury. Having done so, it at once became apparent that the original payees' title to the note was defective. Section 3446, supra. Under section 3450, supra, the burden then devolved upon appellant to prove that it or some person under whom it claims acquired the title as holder in due

course.

[4] If the jury in weighing the evidence discredited Shinn, an interested witness, which they were entitled to do, and doubtless did, appellant failed in its proof. Keene v. Behan, 40 Wash. 505, 82 Pac. 884; Gosline v. Dryfoos, 45 Wash. 396, 88 Pac. 634; Ire land v. Scharpenberg, 54 Wash. 558, 103 Pac.

The judgment is affirmed.

DUNBAR, C. J., and MORRIS and CHADWICK, JJ., concur.

(64 Wash. 280)

MULLERLEILE et ux. v. BRANDT et ux.
July 24,
(Supreme Court of Washington.
1. ACTION (§ 48*)-JOINDER OF CAUSES.

1911.)

A complaint was not bad as improperly joining causes of action because for one cause it was alleged that defendants warranted a horse sold to be gentle, and that it ran away, damaging the buggy and harness, and that plaintiffs relied on the warranty, that the horse was vicious and worthless, and that by reason thereof plaintiffs were damaged in a specified sum; and for another cause of action plaintiffs alleged the purchase and warranty, that the horse was vicious and dangerous, that it had been in the habit of running away, that one of the plaintiffs when driving the horse was thrown from the buggy and personally injured sustaining damages to a fixed sum.

[Ed. Note.-For other cases, see Action, Cent. Dig. §§ 490-510; Dec. Dig. § 48.*1 2. SALES (§ 434*)-BREACH OF WARRANTYPLEADING. The complaint sufficiently stated a cause of action.

[Ed. Note.-For other cases, see Sales, Cent. Dig. §§ 1234-1238; Dec. Dig. § 434.*] 3. SALES (§ 442*)-BREACH OF WARRANTY— DAMAGES-ELEMENTS.

of a driving horse, the buyer can recover for On breach of warranty of the gentleness personal injuries sustained through the horse's vicious nature.

[Ed. Note.-For other cases, see Sales, Cent. Dig. §§ 1284-1301; Dec. Dig. § 442.*] 4. SALES (§ 446*)—BREACH OF WARRANTY—IN

STRUCTIONS.

In an action for breach of warranty of the gentleness of a horse which ran away injuring one of the buyers, it was error to refuse to instruct that if the buyer was guilty of contributory negligence in driving carelessly, causing the accident in whole or in part, there could be no recovery.

[Ed. Note.-For other cases, see Sales, Dec. Dig. § 446.*]

5. SALES (8 445*)-BREACH OF WARRANTYJURY QUESTIONS.

In an action against a seller for breach of warranty of the gentleness of a horse which ran away injurying one of the buyers, whether three months precluded reliance on a warranty, plaintiffs' possession of the horse for nearly whether they should have known the true character of the horse, and whether they were guil-' ty, of contributory negligence, held, under the evidence, jury questions.

[Ed. Note.-For other cases, see Sales, Cent. Dig. §§ 1303-1308; Dec. Dig. § 445.*]