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amount awarded is not justified by the evi-, utory age of consent, held that the absence of dence. The evidence on this feature of the sexual intercourse between the parties was no case, as in other respects, is exceedingly vo- element for consideration, where an otherwise luminous and largely circumstantial, and valid marriage had been contracted. while it cannot be easily repeated in sub

En Banc. stance, nor summarized, examination of it satisfies us that it sustains the judgment en

Appeal from Superior Court, Snohomish tered.

County; Ralph C. Bell, Judge. (3) Another assignment is that the court Action by Juliet Tisdale against Bert Tiserred in giving the respondent a lien on the dale. From a judgment dismissing the ac50 shares of stock of the Buttnick Jobbing & tion, plaintiff appeals. Affirmed. Investment Company held by Lena Buttnick, W. P. Bell, of Everett, for appellant. and enjoining her from disposing of or incumbering it. This also is largely a ques- BRIDGES, J. By this action the plaintifr tion of fact. She is a sister of appellant, sought to annul the marriage between herself while J. M. Buttnick is their father. The and the defendant. There is no dispute as trial court found, upon what appears to be to the facts, which were as follows: The a preponderance of the evidence, that the 50 marriage took place in the city of Seattle, shares of capital stock in question were sub- on January 24, 1921. In some manner not scribed for by Morris Buttnick and issued to explained, a marriage license was obtained. him, and that thereafter J. M. Buttnick per- At the time of the marriage the plaintiff was suaded him to transfer it to his sister, and 17 years of age, and the defendant more than that it was so transferred to her without 21. Neither of the parents of the plaintiff consideration; that she had no knowledge of gave their consent in writing, or otherwise, the transfer, and that it was so transferred to the marriage; on the contrary, such marfor the express purpose of secretly holding riage was had against their wishes and conit, and to avoid the stock being subjected to sent. After the marriage, and up to the time the payment of alimony or whatever allow of the trial of the case, the parties had not ances might be made in this suit.

lived together as husband and wife, or at all, Finally, it is claimed the court should have and there had been no sexual intercourse. granted appellant relief upon his cross-com From these facts the trial court concluded plaint for a divorce. Upon examination of that the marriage could not be set aside or the evidence we reach the same conclusion annulled, except for reasons which, in law, that the trial court did on this feature of the would permit the annulment of the marriage controversy.

if the plaintiff had been of the age of 18 years Judgment affirmed.

at the time of the marriage. Conformably PARKER, O. J., and BRIDGES and TOL- to these conclusions, the court made a judgMAN, JJ., concur.

ment dismissing the action. The plaintiff has appealed.

[1] The statutes of this state affecting mar

riage are sections 7150, 7162, and 7164, Rem. TISDALE V. TISDALE. (No. 16761.) Code. Section 7150 is as follows: (Supreme Court of Washington. Aug. 19,

"Marriage is a civil contract which may be 1922.)

entered into by males of the age of twenty-one

years, and females of the age of eighteen years, 1. Marriage 5, 58(1)-Common-law rule as who are otherwise capable.”

to age of consent not changed; female 17 years of age held not entitled to the annul.

Section 7162 is as follows: ment of marriage contracted by her.

"When either party to a marriage shall be Rem. Code 1915, $ 7150, declaring marriage incapable of consenting thereto, for want of lea contract that may be entered into by males at gal age or a sufficient understanding, or when the age of 21 and females at the age of 18, does the consent of either party shall be obtained not change the common-law rule as to the ages by force or fraud, such marriage is voidable, of consent to a marriage; and hence a female but only at the suit of the party laboring un17 years old is not entitled to the annulment der the disability, or upon whom the force or of a marriage to a male over 21 years of age, fraud is imposed.” under section 7162, since that section, though providing that a marriage may be avoided at

Section 7164 provides for the marriage the suit of one “incapable of consenting there- license and the conditions under which it to, for want of legal age," does not fix the ages shall be obtained. of consent.

[2] This same general question has been 2. Marriage 58(1)-Absence of sexual in. before this court in Re Hollopeter, 52

tercourse not element in determining whether Wash. 41, 100 Pac. 159, 21 L. R. A. (N. S.) 847, marriage shall be annulled,

132 Am. St. Rep. 952, 17 Ann. Cas. 91, and in In an action for the annulment of a mar- Cushman v. Cushman, 80 Wash. 615, 142 riage claimed to be contracted before the stat. / Pac. 26, L R. A. 1916C, 732. In the Hol

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(209 P.) lopeter Case, the wife at the time of the mar- over 12 is a valid contract, that can be annulled riage was 14 years of age and the husband 19. only upon the same grounds as would annul the The marriage was had without the consent of marriage of males over 21 and females over

18." the parents of the husband, who was the plaintiff, or petitioner, in the case. In the

Under that decision this marriage is valid, Cushman Case, the wife at the time of the because the parties were within the commonmarriage was 17 years of age, and her hus- law marriageable age, and, such being true, band 18, and the marriage was performed the question of subsequent sexual intercourse without the consent of the parents of the could not possibly affect the question and plaintiff, who was the husband. In each of would be wholly immaterial. Neither the these cases the marriage was held valid. common law nor our statutes recognizes the These cases are controlling of this one, unless distinction sought to be made, and for us to they can be distinguished or are overruled. make it would be nothing less than legislaThis is particularly true of the Cushman tion on our part. Case. The appellant seeks to distinguish

But appellant earnestly contends that our them from the one at bar on the ground that statutes plainly fix the age at which persons in these cases the marriage had been consum-may lawfully marry, and that the holding in mated by sexual intercourse, whereas in this the Cushman Case is wrong, and that it case there had been no such consummation should be overruled. This we decline to do. In other words, the appellant presses on us That case was decided some 8 or 10 years ago. the doctrine that one, marrying while under It has become the fixed law of the state on à the statutory age, may annul the marriage question of great public moment. Since the for that reason, if there has been no sexual handing down of that decision there have intercourse after marriage; but if, under the been several sessions of the state Legislature. same circumstances, the marriage has been It has not seen fit to enact any new legisfollowed by sexual relations, there may be no lation which would seek to change the rule annulment.

of the Cushman Case. Its action or nonaction It may be conceded that it is not impossible would strongly indicate its approval of the to draw this distinction from the language construction which this court has put on its used in the Hollopeter Case, although the acts. question was not there directly discussed or Since the Cushman Case is decisive of this decided; but such cannot be done in the one, the judgment here must be and is afCushman Case. In that case the only men-firmed. tion made in the opinion of facts which would tend to distinguish it from this case PARKER, O. J., and

FULLERTON, is where, in the early portion of the opinion, MITCHELL, and MAIN, JJ., concur. the court says:

“The marriage was fully consummated, and as a result thereof the appellant became pregnant, but suffered a miscarriage before the case came STATE V. MILLER. (No. 17128.) on for trial below.” We then proceeded to discuss in great de

(Supreme Court of Washington. Aug, 29,

1922.) tail the various provisions of the statute, and after so doing said:

1. Intoxicating liquors 255-Motion for re"So in our statute there is no prohibition

turn of whisky held properly refused. against the marriage of males under the age of In a prosecution for unlawful possession of 21, nor of females under the age of 18. * intoxicating liquors, defendant's motion before Neither is respondent's contention aided by sec- the beginning of the trial for the return of tion 7162, as this section does not attempt to whisky seized by deputy sheriffs from a truck fix the age at which either males or females standing on a highway held properly refused. are capable of consenting; and since it does 2. Intoxicating liquors Ow257-Seizure of whis. not, we must look to the common law to find

ky held not unlawful. at what age such capacity is fixed."

Where deputy sheriffs engaged in official

business came on defendant, apparently asleep Finally we said:

in a disabled auto truck on a highway, and on "But we cannot escape the conclusion that, investigating found a large quantity of whisky, since our statute makes no attempt to fix the seizure of the whisky was not unlawful. age at which infants of either sex may marry within this state, reference must still be had 3. Searches and seizures 3-Seizure with to the common law to determine what that age

out warrant not prohibited, where goods are is, and to find the age when, under section 7162, open to eye and hand. 'either party to a marriage shall be incapable

Seizure without a warrant is not prohibitof consenting thereto for want of legal age,' ed where there is no need of a search, and and that, since no statute declares the mar- where contraband subject-matter, or unlawful riage of such a person to be void or voidable, possession of it, is fully disclosed and open to the marriage of males of 14 and of females of the eye and hand.

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4. Statutes 130-Aot restricting possession pellant do not prohibit a seizure without a of intoxicating liquors held not void.

warrant, where there is no need of a search, Laws 1917, p. 46, amending Initiative Meas- and where contraband subject matter or unure No. 3, adopted by popular vote in Novem- lawful possession of it is fully disclosed and ber, 1914, is not void under Const. Amend. 7 open to the eye and hand. State v. Llewel. (c), prohibiting the amendment of an act ap- lyn (Wash.) 205 Pac. 394; State v. Quinn et proved by a majority of the electors within a period of two years following such enactment, al., 111 S. C. 174, 97 S. E. 62, 3 A. L. R. 1500. since the amendment was passed three years

[4] The statute upon which this case was after the adoption of the original act.

prosecuted was enacted by the Legislature of

1917. Chapter 19, Laws 1917. It was an 5. Intoxicating liquors @wo 13, 132—State prohi. amendment of Initiative Measure No. 3, bition law held not repugnant to Eighteenth adopted by popular vote in November, 1914, Amendment or federal law. Laws 1917, p. 46, restricting the importa- amendment was earlier than permissible un

and the contention is now made that the tion, sale, use, and possession of intoxicating liquors, is not repugnant to, nor has it been der the terms of subdivision “c” of the initiasuperseded by, Const. U. S. Amend. 18, and the tive and referendum provision of the Seventh Volstead Act.

Amendment to the state Constitution. A

similar contention has been answered othDepartment 1.

erwise in the case of State V. Gibbons, Appeal from Superior Court, Lincoln Coun-(Wash.) 203 Pac. 390. ty; Jos. Sessions, Judge.

[5] Further, it is claimed the state law W. J. Miller was convicted of having un

is repugnant to, and his been superseded lawful possession of intoxicating liquors, and by, the Eighteenth Amendment to the fed

eral Constitution and the Volstead Act (41 he appeals. Affirmed.

Stat. 305) enacted pursuant thereto. We Joseph J. Lavin, of Spokane, and John T. bave repeatedly held to the contrary. State Mulligan, of Los Angeles, Cal., for appellant. v. Jewett, 207 Pac. 3, and cases cited. Roy C. Fox, of Davenport, for the State.

Finding no error in the record, the judg

ment appealed from is affirmed. MITCHELL, J. On December 11, 1921, deputy sheriffs, engaged in official business, PARKER, C. J., and TOLMAN, FULLERcame upon the defendant, apparently asleep TON, and BRIDGES, JJ., concur. in a disabled auto truck on the highway near Davenport, Wash. Noticing his condition, the officers stopped to inquire. While one of them aroused the defendant, the other one, standing by the truck, observed it contained a STATE V. HEMPKE et al. (No. 17100.) large quantity of whisky. The officers ar

(Supreme Court of Washington. Sept. 8, rested the defendant and took charge of the

1922.) truck and its contents. Upon an information charging the defendant with the crime of bei. Infants en 20-Evidence as to who procured ing a bootlegger, he was tried and found room for infant held admissible. guilty by a jury of unlawfully having intoxi- Where, in a prosecution for contributing to cating liquor in his possession. From a the delinquency of a female child, a young wojudgment on the verdict an appeal has been man, who was a companion of the infant and

defendants, testified as to the manner and by taken. [1-3] The first assignment of error is: (1) certain city, and that a room was procured for

whom she and the infant were brought to a The denial of appellant's motion before the them at a hotel, it was not error to permit her beginning of the trial for the return of the to testify that the room was procured by a whisky claimed to have been taken by the brother of one of the defendants and another officers without authority of law; and (2) boy. allowing it to be received in evidence over

2. Witnesses Om 287(1)-May on redirect ex. his objection that it had been seized without

plain evidence on cross examination. a search warrant and in violation of his constitutional rights. As to the first, on the tributing to the delinquency of an infant, on

Where defendants, in a prosecution for conauthority of State ex rel. Yakima v. Supe-l cross-examination of the infant, sought to show rior Court (Wash.) 206 Pac. 925, the applica- that she was of immoral character, it was not tion was properly denied. Concerning the error to permit the infant, on redirect examinasecond, we are not called upon to decide if tion, to explain the circumstances brought out the whisky was admissible in evidence, if it on cross-examination. be assumed the officers got possession of it by 3. Appeal and error om 1171(1)-Error of a trespass, for in this case there was no tres

prosecutor in attempting to introduce improppass. It requires a warrant to seize only in

er evidence held cured by instruction to disthose instances where the seizure is assist

regard the inquiries, ed or reached by a necessary search. The

Any error of the prosecutor, in a prosecuconstitutional provisions invoked by the ap- tion for contributing to the delinquency of an

em For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(209 P.) infant, in willfully attempting to get improper, not very material. The girl was of tender evidence before the jury, was cured by instruc- years, and her 'prior immoral acts would in tion to disregard the subject matter of the in. no manner excuse the acts of the defendquiries.

ants; but the state was entitled, neverthe

less, to show the entire transaction, that the Department 1.

jury might have for their consideration all Appeal from Superior Court, Snohomish

of the surroundings. County; Bell, Judge.

[3] One of the defendants took the witness Fred Hempke and Dwight Dutcher were stand on his own behalf, and on his crossconvicted of contributing to the delinquency examination the state sought to show cerof a female child, and appeal. Affirmed. tain admissions made by him at the time of

E. C. Dailey and A. E. Dailey, both of Ev- his arrest. To these questions objections erett, and M. J. McGuinness, of Snohomish, were interposed, and sustained by the court, for appellants.

The complaint of the defendants is that the Thos. A. Stiger and Q. A. Kaune, both of prosecuting attorney was guilty of misconEverett, for the State.

duct in asking the questions, and misconduct

in too unduly persisting upon their materi. PER CURIAM. The appellants were con- ality, thereby getting before the jury matter victed of the offense of contributing to the improper as evidence. No objection was delinquency of a female child.

made to the conduct of the prosecutor at the [1] The first of the errors assigned for re- time, and the trial court was not called upon versal relates to the admission of testimony. to rule on the particular objection. It may A young woman, who was the companion of be true, as the defendants argue, that imthe defendants and the complaining witness proper conduct on the part of a prosecuting at the time the acts and circumstances oc- attorney can amount to reversible error, curred on which the state relies for convic- whether objected to or not; but we cannot tion, was called as a witness on behalf of think this such a case. The matter inquired the state. In her testimony, after narrating into was not entirely foreign to the issues the manner and by whom she and the female then on trial. Indeed, it seems to us that child mentioned had been brought to a cer- affirmative answers to the questions protain city, which she named, she stated that pounded would have tended somewhat stronga room had been procured for 'them at a ly to impeach certain statements the defendhotel therein. Asked who procured the room, ant witness had made in his direct testishe answered that it was procured by a mony. This circumstance justified propoundbrother of one of the defendants and another ing the questions, and relieves the prosecutboy. The defendants moved to strike the an- ing attorney of the charge of willfully atswer, which motion the court overruled. It tempting to get improper evidence before the is argued that this was prejudicial error, be jury. But, more than this, the court made it cause the defendants cannot be convicted for clear to the jury that the subject-matter of the wrongful acts of others. But we find no the inquiries was not for their consideration, error in the court's ruling. This was but a and there is nothing to show that the jury link in the chain of circumstances, without did not heed the admonition of the court. the narration of which the defendants' part The defendants make certain further ob in the affair could not have been well under-jections, based upon the assumption that the stood. It is perhaps true that enough would evidence shows that the complaining withave been told, had the testimony been con-ness had theretofore been married, and in fined to the fact that others than the defend consequence was to be "deemed and taken ants procured the room; but the mentioning as of full age" at the time of the commission of the others' names was not error.

of the acts laid in the information. These [2] On cross-examination of the complain objections, we think, must have been made ing witness the defendants sought to show under a misconception of the record. The that she was of immoral character. On re record does indeed show that the woman direct she was asked certain questions tend-companion of the complaining witness was ing to explain the circumstances brought out theretofore married, and was then living sepin the cross-examination, and was permitted arate and apart from her husband; but we to answer over the objection of the defend- find nothing in the record, and nothing is ants. This ruling of the court constitutes pointed out to us, which shows that the comthe second assignment, but again we find no plaining witness had ever been married. error. The explanatory matter was perhaps Afirmed.

8. New trial 108(4)-Newly discovered ovl. DISHMAN y. WHITNEY et al. (No. 16793.) dence as to injury, not constituting important

element of damage, not ground. (Supreme Court of Washington, Aug. 30, Though witnesses testified that plaintiff, 1922.)

prior to an accident, had an erect carriage,

where the rounded condition of his shoulders 1. Master and servant m 316(1)-One solicit. ing orders on salary and commission not an age relied on, alleged newly discovered evidence

was not one of the important elements of damindependent contractor,

that his appearance was no different after the One employed to go about the city and so- accident than before did not require a new licit orders for a weekly salary and a commis- trial. sion on sales is not an independent contractor as respects liabilty for his negligence.

9. Trial em 252(8)-Instruction as to backing

of automobile causing injury properly modi. 2. Master and servant 318(1)-Control of fied, where not warranted by evidence as rework one test for determining relation.

quested. One of the tests for determining whether Instruction that, if automobile injuring contract of employment creates the relation of plaintiff was caused to roll back by the crankindependent contractor or that of principal and ing of the car, there could be no recovery, held agent is whether the employer retained or has properly modified to state that, if defendant the right to control the mode or manner in in backing the car acted unconsciously, and not which the work is to be done.

carelessly or thoughtlessly, he would not be 3. Master and servant Ow330(1)—Burden of evidence that the cranking caused the car to

chargeable with negligence, where there was no issue of independent contractor on party as back against plaintiff. serting relation.

Where the facts presented are as consistent 10. Appeal and error Emo 232(2)-Where evi. with the theory of agency as with that of in

dence of doctor's services not objected to dependent contractor, the burden is on the one

for want of evidence of reasonable value, the asserting the independency of the contractor

point could not be made on appeal. to show the true relation of the parties.

In an action for injuries, where evidence

as to the services of a doctor was not objected 4. Master and servant C332(3) – Relation to for want of proof of their reasonable value, may be question of law.

such objection could not be made on appeal. Whether one is an agent or an independent contractor may be a mixed question of law

Department 2. and fact, or of law alone.

Appeal from Superior Court, King County; 5. Master and servant am302(2)-Master not J. T. Ronald, Judge.

relieved of liability for sales man's negligence Action by Reuben Dishman against C. R. because use of automobile not directed.

Whitney and another. From a judgment for The employer of one employed to solicit plaintiff, defendants appeal. Afirmed. orders was not relieved of liability for his negligence in driving an automobile while soliciting Donworth, Todd & Higgins and Lundin & orders because he had not been directed to use Barto, all of Seattle, for appellants. an automobile, where his use thereof was known Griffin & Griffin, of Seattle, for respondent. to one of the managers of the business, and its use was for the employer's benefit, in that it

MAIN, J. The purpose of this action was enable him to see more people and presumably

to recover damages for personal injuries. to make more sales.

The defendants are the Grote-Rankin Com6. Master and servant Sw332(2)—Salesman's pany, a corporation, and one C. R. Whitney, scope of employment question of fact.

who was in the employ of that company, and One employed to solicit orders for an em. was the active agent in producing the injury ployer, whose store hours were from 8:45 to of which the plaintiff complains. The trial 5:15, but who was not told not to work after to the court and a jury resulted in a verdict 5:15, was not as matter of law acting outside against both defendants in the sum of $7,500. the scope of his employment in calling on a Each made a motion for judgment notwithprospective customer about 7 o'clock in the evening, pursuant to the customer's previous standing the verdict, and, in the alternative, suggestion.

for a new trial. These motions were over

ruled, and the defendants prosecute separate 7. Damages 132(3)-Verdict of $7,500 for appeals from the judgment entered upon the broken ribs, injury to spine, etc., not so

verdict. large as to show passion or prejudice.

Grote-Rankin is a corporation operating a Where plaintiff had three ribs broken when

large retail furniture and house-furnishing struck by an automobile, his spine was injured, and he was in bed for about six weeks, and had store in the city of Seattle; one line of its not been able to do any work since the injury, business being that of the sale of pipeless furand was in a nervous condition and had suffer- | naces. On June 16, 1920, Whitney was emed much pain, though strong and well prior to ployed by Grote-Rankin for the purpose of the accident, a verdict of $7,500 was not so soliciting the sale of furnaces in the city of large as to show passion and prejudice. Seattle. At the time he was employed he was

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