The court granted a motion for directed | fair weight of the evidence that the assured verdict made by plaintiff, after denying a motion for nonsuit. From the judgment and an order denying a motion for new trial defendant appealed. [1] No citation of authority is given in support of the demurrers to the complaint. In our opinion the complaint was sufficient. In fact, in its essential provisions it is very similar to the complaint in Insurance Co. v. McConkey, 127 U. S. 61, 8 Sup. Ct. 1360, 32 L. Ed. 308, hereinafter cited. [2] The testimony as to the incidents connected with the death of the insured is slight, but is sufficient to establish the death of insured by external and violent means. No effort was made to strike the answers as not responsive to questions asked, nor was any attempt made by propounding preliminary questions to test the sources of the knowledge of the witness; nor, so far as shown by the record, was any cross-examination had. [3] In cases upon accident policies containing provisions similar to those in the policy sued upon, the burden is, of course, upon the plaintiff to show that death was caused by external, violent, and accidental means and when the plaintiff has sustained this burden, the defendant must rebut the plaintiff's case, if it is to recover verdict. It is asserted by defendant that the evidence is as susceptible of being construed as establishing murder of the insured by his wife, or at least an intentional killing of the insured by her act, as of establishing death by accident. Upon the questions urged, we find many decisions. In the case of Travelers' Ins. Co., etc., v. McConkey, 127 U. S. 61, 8 Sup. Ct. 1360, 32 L. Ed. 308, it was held that the claimant under the policy must establish by direct and positive proof that the death or injury of the insured was the result, not only of external and violent, but of accidental, means, and that the requirement of direct and positive proof does not make it necessary to establish the fact and circumstances of death by persons who were actually present when the insured was injured, but that such proof may be made by circumstantial evidence. Also it was there held that suicide is not to be presumed, nor is it to be presumed that the insured was murdered. In the leading case of Jones v. Accident Association, 92 Iowa, 652, 61 N. W. 485, the defendant was shot and killed by another during a quarrel. The court said: "Appellant asked several instructions to the effect that the burden of proof was upon the plaintiff to show that the death of Jones, the beneficiary in the policy, was the result, not only of external and violent means, but also of accidental means. In other words, it was claimed that the burden was upon the plaintiff to show that the death of Jones was accidental, within the meaning of the policy. The court told the jury that if plaintiff had 'shown by the came to his death as the result of a pistol shot held in his own hands, or in the hands of another, then the law will presume that the shot was accidental, and that it was not inflicted with murderous or suicidal intent. And under such circumstances the burden will be upon the defendant to overcome this presumption, and to show that the death was not caused by accidental means.' The instruction was correct. It can make no difference, so far as defendant's liability is concerned, whether Wade fired the shot with the intent to kill Jones or not. If he had such intent when he fired the. shot, and if Jones was not at fault in the matter-if he did nothing to cause or provoke the act-then, clearly, as to Jones, the injury resulting from the shot was accidental. In the absence of evidence to the contrary, the law presumes that Jones was without fault. There was no direct testimony to show that Wade, in firing the shot, had any intent to injure or kill Jones. Then, the presumption which the law raises where one has been killed by external and violent means, as in this case, that the injury was the result of accident, will prevail until overcome by evidence. Utter v. Insurance Co., 32 N. W. Rep. (Mich.) 812; Insurance Co. v. McConkey, 127 U. S. 661, 8 Sup. Ct. Rep. 1360; Mallory v. Insurance Co., 47 N. Y. 52; Insurance v. Bennett, 16 S. W. Rep. (Tenn.) 723. It must also be borne in mind that the provisions and conditions of the policy in the case at bar do not cover, in terms, the case of injuries inflicted upon the assured by another person, and in this respect this case is, in its therefore no error in giving and refusing infacts, unlike the McConkey Case. There was structions relating to this matter. 1 American and English Encyclopedia of Law, p. 89; Supreme Council v. Garrigus, 104 Ind. 133, 3 N. E. Rep. 818; Hutchcraft's Ex'r v. Travelers' Insurance Co., 87 Ky. 300, 8 S. W. Rep. 570; Insurance Co. v. Bennett, 16 S. W. Rep. (Tenn.) 724." In addition see, also, Caldwell v. Iowa State Traveling Men's Association, 156 Iowa, 327, 136 N. W. 678; Taylor v. Pacific Mutual Life Ins. Co., 110 Iowa, 621, 82 N. W. 326; Cronkhite v. Travelers' Ins. Co., 75 Wis. 116, 43 N. W. 731, 17 Am. St. Rep. 184; Preferred Acc. Ins. Co. v. Fielding, 35 Colo. 19, 83 Pac. 1013, 9 Ann. Cas. 916; Etna Life Ins. Co. v. Milward, 118 Ky. 716, 82 S. W. 364, 68 L. R. A. 285, 4 Ann. Cas. 1092; Freeman v. Ins. Co., 144 Mass. 572, 12 N. E. 376; Allen V. Travelers' Protective Ass'n, etc., 163 Iowa, 217, 143 N. W. 574, 48 L. R. A. (N. S.) 600; Stevens v. Continental Casualty Co., 12 N. D. 463, 97 N. W. 862; also Tuttle v. Pac. Mut. Life Ins. Co., 58 Mont. 190 Pac. 993, and cases cited. The rule is thus stated in 1 C. J. 475 (section 278): "Where, however, it is apparent that the injury to or death of the insured was the result of external and violent means, and the issue is as to whether it was due to an accident within the meaning of the policy, or to some cause excepted by the policy, the presumption is in (193 P.) favor of accident and against the existence of [4] It is apparent therefore that under the great weight of authority plaintiff's evidence made a prima facie case. As said by this court in numerous decisions, when a prima facie case is made by plaintiff the defendant must rebut the case so made, or fail in the action. State v. Nielsen, 57 Mont. 137, 187 Pac. 639, and cases there cited. [5] The plaintiff having established prima facie the allegations of the complaint, and there being no other evidence offered, the trial court was not in error in directing verdict for plaintiff. guilty of contributory negligence barring him from a right of recovery, and reversing the case, with directions to the superior court to enter a judgment dismissing the action. (Supreme Court of Washington. Nov. 29, 1920.) Department 2. Appeal from Superior Court, Pierce County; John D. Fletcher, Judge. On petition for rehearing. Rehearing de nied. For former opinion, see 192 Pac. 966. Charles O. Bates, of Tacoma, and Stephen J. Chadwick, of Seattle (Henry J. Snively, of The judgment and order appealed from are Yakima, of counsel), for appellant. affirmed. Affirmed. BRANTLY, C. J., and HOLLOWAY, MATTHEWS, and COOPER, JJ., concur. (113 Wash. 698) EBLING v. NIELSEN et al. (No. 15522.) (Supreme Court of Washington. Nov. 30, 1920.) En Banc. Hayden, Langhorne & Metzger, of Tacoma, for respondent. PER CURIAM. The petition for rehearing in this case concludes with the request that in the event of its denial the opinion, with respect to that portion thereof covering the mother's rights to have the children visit her, be amplified. The particular language to which attention is directed is "vacations between school terms." This language may have been used somewhat improvidently, and if it is not plain it is sufficient to say that Appeal from Superior Court, King County; the court intended by its use that the mothCalvin S. Hall, Judge. On rehearing. Former conclusion affirmed, and judgment reversed, with directions. For former opinion, see 186 Pac. 887. Ogden & Clarke and Joseph Oakland, all of Seattle, for appellants. er should have the children during any substantial period when they were not in school, whether such period be technically between school terms or not. We are also requested to settle the terms more definitely upon which the mother may J. Speed Smith and Henry Elliott, Jr., both visit the children, but in this regard we think of Seattle, for respondent. PER CURIAM. Upon a rehearing of this case, a majority of the court sitting en banc is of the opinion that a portion of the original opinion (186 Pac. 887), as follows: "Then, under the test of ordinary care and prudence, he was required to have his machine under such speed and control, considering all the circumstances, including any reasonable likelihood of skidding when the brakes were applied, as would permit him to safely handle his machine without a collision after he could and should have discovered the motor truck, independent of the question of the sufficiency of the red light. 29 Cyc. 505; Lauson v. Town of Fond du Lac, 141 Wis. 57, 123 N. W. 629, 25 L. R. A. (N. S.) 40, 135 Am. St. Rep. 30," -states the law too broadly. It is therefore withdrawn as an expression of our views upon the subject. the direction given is sufficient. In all other respects the petition is denied. (113 Wash. 267) KNUTSON v. PYBUS BAY FISH & PACKING CO. (No. 16129.) (Supreme Court of Washington. Nov. 29, 1920.) Master and servant 236(6) Employé, knowing danger, negligent in passing under moving chain. Fisherman, employed by a packing company to fish and deliver his catch at its cannery, who, with knowledge of the conditions, passed under an elevator, stooping as low as he could without getting on his hands and knees in the of its projections caught in his clothing, and dripping slime, so that a moving chain or one threw him off the walk to a float 24 feet below, was negligent, having knowledge of the We adhere, however, to the conclusion conditions through prior use of such passagetherein reached, that the respondent was way. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Department 2. and there made it fast. He then climbed up Appeal from Superior Court, King County; a ladder, situated near where the boats were Clay Allen, Judge. Action by Louis Knutson against the Pybus Bay Fish & Packing Company. From a judgment of dismissal after a verdict for plaintiff, he appeals. Affirmed. Lyons & Orton, of Seattle, for appellant. Bogle, Merritt & Bogle, of Seattle, for respondent. commonly moored, onto the dock, where he remained with no particular occupation for some 45 minutes. Observing another boat unloading at the float, which appeared to immediately by another pursuing the same course. Coming to the point where he must pass under the elevator, he saw the man who preceded him pass through, and stooping down as low as he could, without getting on his hands and knees in the slime, which dripped from the elevator, he attempted to pass under, when the chain or its projections caught in his clothing and threw him off the unguarded walk to the float below, a fall of some 24 feet, and he thus received the injuries complained of. have made a more successful catch than his own, he determined to go down to the float for the twofold purpose of inquiring where the fish then being unloaded had been caught, and also to ascertain whether the checker or tallyman had sent a report of his own TOLMAN, J. In the summer of 1919 ap- load of fish to the office, so as to enable him pellant, a fisherman by occupation, with his to get a receipt therefor. In going to the boat and crew, was employed under a con- float he traveled along the board walk, stooptract with respondent to fish throughout the ed down, and passed under the elevator, and season and deliver his catch at respondent's thence descended the gangway to the float. cannery on Pybus Bay, Alaska, at certain | After remaining there some 30 minutes he prices fixed by the contract. Respondent started to return by the same route, preceded maintained a float alongside its dock, from which a fish conveyor or chain elevator ran up and into the cannery, and appellant and others similarly employed brought their boats, loaded with fish, to this float; the fish were transferred and counted into a hopper, from which they entered the conveyor and were elevated to the cannery. The float was so constructed and fastened as to rise and fall with the tide. Beside the elevator was a cleated gangway, by means of which the men employed on the float passed up and down from the float to the dock and returned. At the dock level the gangway connected with a narrow board walk, without railing or guard along its outer edge, which passed along beside the cannery underneath the upper end of the elevator. The elevator was stationary in height at the upper or cannery end; but, as the lower end rested upon the float, it would rise and fall with the tide, thus affecting the clearance space between the board walk and the elevator above it. The elevator consisted of an endless chain, running in a chute or compartment, with cups or scoops which caught and carried the fish up into the cannery, the returning chain being exposed below the chute, and there was nothing to protect one from contact with the returning chain or its cups, where it passed above the board walk. Probably at high tide there was no danger to one passing under the chain at this point, but at lower stages of the tide, not only was the elevator lower, but the chain was slackened by the subsidence of the tide, and one could not pass under the chain without stooping more or less. There is some dispute in the testimony as to whether or not there was any other practical way to go from the dock to the float, or from the float to the dock, and for present purposes we will assume that this was the only practical route provided. On the evening of July 30, 1919, appellant brought his boat to the float, unloaded his fish, and then, according to custom, moved The cause was submitted to a jury, which found a verdict in appellant's favor, and, a motion for judgment notwithstanding the ver dict having been interposed and granted by the trial court, a judgment of dismissal followed, from which this appeal is taken. The errors assigned raise only the question of whether or not the court erred in granting the motion, and refusing to enter judgment on the verdict. The trial court appears to have been of the opinion that appellant was guilty of contributory negligence as a matter of law, and hence not entitled to recover, even though respondent was shown to have been negligent. To intelligently discuss the question thus presented, it will be necessary to set forth the evidence a little more fully on some points than is shown by the foregoing statement. It appears clearly from appellant's own testimony that he was fully conversant with the whole situation as it existed at and before the time of the accident. He had been delivering fish at the cannery for some weeks and knew all about the manner in which the elevator was constructed and operated, and was, of course, familiar with the ebb and flow of the tide. When asked on direct examination as to the number of times he had gone by this route from the float to the cannery, he testified: "Oh, some days I went up there many times a day." He had gone down from the dock to the float about half an hour before the time of the accident, knew (193 P.) 4. Witnesses 201(1)-Attorney can testify as to instructions. walk when fish were being carried up by the | tor directed be communicated to the grantee is elevator, knew that the elevator was then in not privileged within Code Civ. Proc. § 1881, operation and that the chain was slack, as subd. 2. evidenced by his having stooped to avoid it, and the only attempted excuse for his failure to avoid contact with the chain is that he had never seen the tide that low before, and that "it was starting to get a little dark," but there is no suggestion that he could not both see and hear the chain in operation. The only conclusion to be drawn from this testimony is that "familiarity had bred contempt," and that though he knew full well of the danger, he carelessly and negligently brought himself into contact with the moving chain. Here is no question of latent or concealed danger. It was open, obvious, and actually known to appellant at the time, as conclusively shown by his stooping; hence reasonable minds may not differ in their conclusions. The act of appellant in this case is quite similar to the act of appellant in the case of Simpson v. Brown, 107 Wash. 366, 182 Pac. 88, and while that case was tried to the court we have no doubt the same conclusion would have been reached, had it been a question of taking the case from the jury. The judgment appealed from is affirmed. HOLCOMB, C. J., and MOUNT, MITCHELL, and MAIN, JJ., concur. (184 Cal. 283) COLLETTE v. SARRASIN. (L. A. 5521.) (Supreme Court of California. Nov. 12, 1920.) 1. Witnesses 222-Prior relation of attorney does not establish relation existed when deed was drawn. That an attorney drew a will for a client and retained it in his possession until drawing a deed some two years later will not itself establish the relation of attorney and client at the time of drawing the deed so as to render testimony by the attorney as to the grantor's declarations concerning the deed privileged communications within Code Civ. Proc. § 1881, subd. 2. 2. Witnesses 200-That attorney acted as mere scrivener does not make communication privileged. Where an attorney acted as a mere scrivener in drawing a deed, and the grantor asked no advice and solicited no services from the attorney other than the delivery of the deed, communications in that connection were not privileged within Code Civ. Proc. § 1881, subd. 2; the relation of attorney and client not existing. 3. Witnesses 205-Statement by client directed to be communicated to grantee of deed not privileged. Though the relation of attorney and client existed between a grantor and the attorney who drew a deed, a communication which the gran Where the communication between the client and attorney is one authorizing the attorney to perform some act on behalf of the client, the communication giving such authority is not a confidential communication by the client, and withstanding Code Civ. Proc. § 1881, subd. 2. the attorney may testify to the instruction, not 5. Witnesses 222-Person objecting to testimony as privileged has the burden of showing relation of attorney. A party objecting to testimony by an atcommunication with a client has the burden of torney on the ground that it was to a privileged showing the relationship. 6. Evidence 471 (30) Attorney may be asked whether he was acting as such in particular transaction. delivery of a deed was objected to on the Where testimony of an attorney concerning ground that it was privileged, it was proper to ask him whether with relation to that transaction he was acting as attorney for the grantor whose declarations were sought to be elicited. 7. Witnesses 217 Communications to attorney not competent merely because both parties claimed under client. The mere fact that both parties claimed under decedent, who was asserted by plaintiff to have occupied towards an attorney the relation of client, does not make communications by decedent to the attorney admissible, for, under Code Civ. Proc. § 1881, subd. 2, a privileged communication cannot be received unless the privilege is directly or inferentially waived by the client. 8. Descent and distribution +90(1) Heirs may maintain action to have deed declared mortgage. As Code Civ. Proc. § 1452, authorizes the heirs of a decedent to sue for possession of real estate or for quieting title thereto, the heirs of a decedent may maintain a suit to have declared a mortgage an absolute deed executed by decedent. 9. Descent and distribution ~71(1)-In action to have deed declared mortgage question of heirship may be decided. In an action by the alleged heirs of decedent to have a deed executed by him declared a mortgage, the question of heirship may be decided; the decree sought being in effect both to quiet title to the land against the grantee's claim of ownership and to establish a right to possession subject to the rights of the administrator. In Bank. County; Fred H. Taft, Judge. Action by Zephir F. Collette against Hyacinthe Sarrasin. From a judgment for plaintiff, defendant appeals. Reversed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Emmet H. Wilson, G. C. De Garmo, and [relation to the deed were not admitted in J. Wiseman Macdonald, all of Los Angeles, evidence. Whether such delivery was authorfor appellant. ized, and whether in connection with the de Oscar Lawler and James E. Degnan, both livery of the deed Mr. Wilson was either of Los Angeles, for respondent. authorized or directed by the deceased to make any statement or representation as to its purpose or effect, or to make any request or to give any instructions with reference to the property, is not known because of the rulings of the court excluding such evidence. WILBUR, J. This action is brought by the plaintiff, the father and sole heir of Clifford Collette, to have a grant deed from the latter to the defendant, his uncle, declared to be a mortgage. The judgment was in fa- [1, 2] Plaintiff's objection was not well takvor of the plaintiff, and defendant appeals. en unless the relation of attorney and client The appellant claims that the property was existed between the witness and the deceased. conveyed to him as a gift. When eight years Section 1881, subd. 2, Code Civ. Proc. The of age Clifford was brought to California by fact that Mr. Wilson had drawn a will two the defendant and was reared by the uncle, years before and retained possession thereof who, when Clifford was 23 years old, purchas- did not establish the relation of attorney and ed the land here involved, each taking title client with reference to the transaction conto an undivided one-half thereof. Afterwards cerning the deed. The only conversation defendant conveyed his half to the nephew with reference to the drafting of the deed, Clifford and took a mortgage for $5,000 on so far as we know, was the conversation with the property. Defendant advanced about the defendant. The record leaves us wholly $4,000 additional to Clifford, and the proper- in the dark as to whether anything occurred ty had appreciated in value until at the time between the witness and the deceased at the of the death of the latter it was worth about time the latter signed the deed which would $28,000. About two weeks before his death establish the relation of attorney and client. Clifford executed the deed in question. The If Mr. Wilson acted as a mere scrivener in defendant testified that Clifford gave him drawing the deed, and if the deceased asked an old deed containing a description of the no advice concerning it and solicited no servproperty and requested him to take it to Em-ice from the attorney other than the demet H. Wilson, an attorney at law, and have a deed drawn conveying the property to defendant, stating that he would later go to the office and execute it. This was done. The next day the deed was delivered to defendant by the stenographer in Wilson's office. Defendant denied that the deed was given to him as security. Mr. Wilson was called to the stand by the defendant. Because of plaintiff's objection that the matter sought to be elicited from this witness was privileged he was only permitted to testify to the following effect: That he was an attorney at law; that he was acquainted with the parties to this action, and with Clifford Collette; that he became acquainted with the latter in 1910, and in June, 1912, drew a will which he executed; that he kept the will in his safe at his request until March 2, 1916, at which time he returned it to him. The [3, 4] If the deceased made any communitrial court rigidly adhered to the ruling that cation to Mr. Wilson, and if the relation of upon this state of the case everything said attorney and client existed, if that communiand done between Mr. Wilson and the deceas- cation was directed by the client to be comed was privileged, and therefore sustained municated to the grantee in the deed the comobjections to every attempted offer of proof, munication was not privileged. Rosseau v. and to every question asked which sought to Bleau, 131 N. Y. 177, 30 N. E. 52, 27 Am. St. elicit any additional evidence, and declined to Rep. 578; Koeber v. Somers, 108 Wis. 497, permit defendant's counsel to make any offer 84 N. W. 991, 52 L. R. A. 512; Herman v. of proof, or to state what they expected to Schlesinger, 114 Wis. 382, 90 N. W. 460, 91 prove by the witness. Inasmuch as the deed Am. St. Rep. 922; Estate of Nelson, 132 Cal. was delivered by Mr. Wilson to the grantee, 182, 64 Pac. 294. Where the communication it must follow that such delivery was in ac- between the client and attorney is one authorcordance with the instructions of the grantor, izing the attorney to perform some act on unless we infer that such delivery was un- behalf of the client, the communication givauthorized. Under the rulings of the court, ing such authority is not a confidential com livery of the deed, it is clear that communications in that connection were not privileged, for the reason that the relation of attorney and client in the matter inquired about is not established and did not exist. Gulick v. Gulick, 38 N. J. Eq. 402; Hatton v. Robinson 14 Pick. (31 Mass.) 416, 25 Am. Dec. 415; De Wolf v. Strader, 26 Ill. 225, 79 Am. Dec. 371; Borum v. Fouts, 15 Ind. 50; Grimshaw v. Kent, 67 Kan. 463, 73 Pac. 92; Randel v. Yates, 48 Miss. 685; Todd v. Munson, 53 Conn. 579, 4 Atl. 99; Branden v. Gowing, 7 Rich. (S. C.) 459; Carroll v. Sprague, 59 Cal. 655; Delger v. Jacobs, 19 Cal. App. 197, 125 Pac. 258; Smith v. Caldwell, 22 Mont. 331, 56 Pac. 590; Machette v. Wanless, 2 Colo. 169; Monaghan Bay Co. v. Dickson, 39 S. C. 146, 17 S. E. 696, 39 Am. St. Rep. 704; Aultman & Co. v. Daggs, 50 Mo. App. 280. |