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5. PLEDGES (§ 44*)-LIEN-EXTINGUISHMENT., the first place, the record is silent as to A corporation having pledged certain dia- the meaning of the term "trustee." It is monds belonging to plaintiff for a loan, and de- shown that he was appointed by the refendant, as trustee of the corporation, having redeemed the diamonds and thereafter been ap- spondent, acting as president and manager pointed receiver of the corporation's property, of the corporation, with that title, but for such redemption destroyed the lien of the pledge, whom he was acting, and in what his powand vested the right of possession in plaintiff as owner, and hence she was not bound to refund ers and duties consisted, there is no showthe amount paid to redeem the diamonds as a ing. Presumptively he was acting as trustee condition to her right to recover them from the for the corporation, and, this being so, his receiver. [Ed. Note.-For other cases, see Pledges, Cent.ceiver under the appointment of the court. powers as such ceased when he became reDig. §§ 103-107; Dec. Dig. § 44.*]

6. SET-OFF AND COUNTERCLAIM (§ 29*)-SUBJECT OF COUNTERCLAIM.

Rem. & Bal. Code, § 265, provides that a cause of action arising out of the contract or transaction set forth in the complaint as the foundation of plaintiff's claim, or connected with the subject-matter of the action, or in an action arising on contract, any other cause of action arising on contract, and existing at the commencement of the action, may be availed of as a counterclaim. Held, that where plaintiff sued to recover possession of certain diamonds from the receiver of a corporation, an alleged indebtedness from plaintiff to the corporation was not available as a counterclaim.

[Ed. Note.-For other cases, see Set-Off and Counterclaim, Cent. Dig. §§ 49-51; Dec. Dig. § 29.*]

Department 2. Appeal from Superior Court, Spokane County; Bruce Blake, Judge. Action by Lela E. Hyde against C. B. Clausin, receiver of the E. J. Hyde Jewelry | Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Samuel R. Stern, of Spokane, for appelS. A. Mann and Lucius G. Nash, both of Spokane, for respondent.

lant.

PER CURIAM. The respondent while president and manager of the E. J. Hyde Jewelry Company, a corporation, pledged two diamond rings, along with other personal property, to a broker to secure a loan made by the broker to the corporation. The money procured was used in payment of obligations of the corporation. Subsequently the appellant Clausin, was appointed "trustee" of the jewelry company, and while acting in that capacity redeemed the pledged personal property, including the rings mentioned, with moneys belonging to the jewelry company. Later on the corporation was declared insolvent in an action brought for that purpose, and the appellant appointed receiver to wind up its affairs. Pending the receivership the respondent demanded possession of the rings, claiming them to be her individual property. The receiver refused to turn them over to her, whereupon she brought the present action to recover them. She was successful in the court below, and the receiver appeals.

[1] It is the appellant's first contention that since the evidence shows that he redeemed the property while acting in the capacity of trustee, the action should abate because he was not sued in that capacity. But to this there are several answers. In

[2] In the second place, he defends in his capacity as receiver, basing his defense on the claim that the property sought to be recovered is the property of the corporation, rightfully in his possession in his capacity as receiver of its property. Clearly, in the absence of direct and positive evidence that he holds the property in some other capacity than in his capacity as receiver, he cannot claim that he has been sued in a wrong capacity.

[3] In the third place, the record fails to show that this question was suggested in the court below. This alone is a bar to its consideration here, as it is a question that cannot be raised for the first time in the appellate court.

[4] The receiver next questions the sufficiency of the evidence to justify the finding that the respondent is the owner of the rings. But on this question we think the evidence preponderates in her favor. She testifies that one of the rings was purchased by her in another state, from moneys she received from the sale of certain corporation stock owned in her own right. The second one was taken from the stock of the jewelry company, with the consent of its then manager, long prior to the appointment of the receiver, and while the corporation was wholly solvent. There was little or no dispute as to these facts, and we think the court justified in finding that the rings were the property of the respondent.

[5] The receiver next contends that no recovery of the property can be had without a refund of the money paid in their redemption. Had the receiver redeemed the property after his appointment as such, without knowledge of its ownership, the court would, perhaps, in the interests of the creditors of the corporation, subrogate him to the rights of the pledgee from whom he redeemed, and require the return of the money paid in the redemption of the property as a precedent condition to a recovery. But the property was redeemed prior to the appellant's appointment as receiver, while he was acting in another capacity, out of moneys belonging to the corporation, and before, in so far as the record discloses, the creditors' interests attached. The redemption under the circumstances relieved the property

of the lien of the pledge and vested its right of possession in the respondent as the

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

owner thereof. This right of possession was not changed by the fact that the appellant was subsequently appointed receiver, and received this property, with property of the corporation, in virtue of his office as such receiver. The ownership and right of possession still remained in the respondent, and the refusal to deliver the property to her on her demand was wrongful.

[6] The receiver set up as a counterclaim an alleged indebtedness from the respondent to the corporation. On the trial he offered the books of the corporation as evidence to show such indebtedness. On objection

from the other side, the court excluded the evidence, on the ground that the matter pleaded was not a proper subject of counterclaim to the respondent's action. The objection was properly sustained. The Code provides (Rem. & Bal. § 265):

"The counterclaim mentioned in the preceding section must be one existing in favor of a defendant and against a plaintiff, between whom a several judgment might be had in the action, and arising out of one of the following causes of action:

"1. A cause of action arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff's claim, or connected with the subject of the action;

"2. In an action arising on contract, any other cause of action arising also on contract, and existing at the commencement of the action." Manifestly, the cause of action stated in the counterclaim did not arise out of the transaction set forth in the complaint as the foundation of the plaintiff's claim, nor was the plaintiff's action an action arising on contract.

There is no reversible error in the record, and the judgment will stand affirmed.

(82 Wash. 296)

CONNOR v. CITY OF SEATTLE et al. (No. 11835.)

(Supreme Court of Washington. Nov. 17, 1914.)

1. STIPULATIONS (§ 18*)-CONCLUSIVENESSMATTERS CONCLUDED.

While a city may not assess any part of the cost of a public improvement against land, the owner of which has recovered a sum in damages over and above all benefits, where a city and a property owner on a change of grade stipulated that a verdict should be entered in favor of the property owner for $1, but that this should not waive the city's right to assess the property for the cost of the improvement, and that the property should be liable to assessment for the payment of the actual improvement, the city could assess a part of the cost of the actual work of making the improvement, as distinguished from the damages for property taken and damaged; and hence such an assessment could not be set aside in a suit to set it aside on the ground that it was void.

[Ed. Note.-For other cases, see Stipulations, Cent. Dig. §§ 41-54; Dec. Dig. § 18.*] 2. STIPULATIONS (§ 16*)-CONCLUSIVENESSJUDGMENT.

Where, in a proceeding to assess the damages from a change of grade of a street, the city and a property owner stipulated for a ver

dict in favor of the property owner for $1, but that this should not prevent an assessment against the property for the cost of the improvement, that such stipulation was signed by the property owner's counsel without authority, or that it was not signed by the city, was not the property on the theory that all benefits to ground for setting aside an assessment against the property were set off against the damages recovered; since the property owner could not rely on the judgment on the stipulation so far as it awarded damages, and repudiate it so far as it reserved the right to assess benefits. [Ed. Note.-For other cases, see Stipulations, Dec. Dig. § 16.*]

3. STIPULATIONS (§ 16*)-RESCISSION-MUTUALITY OF OBLIGATION.

and a property owner that, in a proceeding to Where, though a stipulation between a city assess the damages from a change of grade of a street, a verdict might be entered for the property owner for $1, but that this should not Prevent an assessment for the cost of the improvement, was not signed by the city, the city accepted it as binding upon it and acted thereon, it could not repudiate it, and therefore the property owner could not deny its binding force. [Ed. Note. For other cases, see Stipulations, Dec. Dig. § 16.*]

Department 2. Appeal from Superior Court, King County; R. B. Albertson, Judge. Action by Anthony Connor against the City of Seattle and others. From a judgment dismissing the action, plaintiff appeals. Affirmed.

Wm. Martin and Hugh C. Todd, both of Seattle, for appellant. Jas. E. Bradford, Wm. B. Allison, Preston & Thorgrimson, and Turner & Hartge, all of Seattle, for respondents.

FULLERTON, J. [1] On December 18, 1905, the city of Seattle, by an ordinance approved on that day, provided for a change in the grades of Jackson street therein, and certain other named streets abutting upon and adjacent thereto. The ordinance established new grades on the several streets, and directed the corporation counsel of the city to institute the necessary proceedings to condemn the property required to be taken and damaged thereby and to ascertain the just compensation required to be paid to the owners of such property. The appellant, Anthony Connor, owned property affected by the proceeding, and was made a party thereto, being personally served with summons therein. He appeared in the proceedings by counsel, and when that branch of the case was called for hearing which affected his property, his attorneys, acting on his behalf, entered into the following stipulation with the city:

between the city of Seattle and the undersign"It is hereby stipulated and agreed by and

ed in said cause in the sum of $1 in favor of the ed property owner that a verdict shall be enterrespondent Anthony Connor as damages to [the property owned by the appellant] by reason of the changing of grades and the regrading of Jackson street and other streets as provided by Ordinance No. 13102; it being expressly agreed between the parties hereto that the entry of

payment of the second element. questionably is the effect of the stipulation as it was embodied in the judgment. And this being so, it is clear that the assessment cannot be set aside in this form of proceeding. The judgment is a barrier behind which he cannot go; it is the final determination of his rights in the matter. True, he might

the amount of the assessment, but his right to question the power of the city to make the assessment was foreclosed against him by the judgment.

said verdict shall not, in any manner, waive the right of the city to assess said property for the cost of said improvement; and the said owner hereby expressly agrees that said property shall be liable to assessment by the city council for the payment of the actual improvement of said street under Ordinance No. 13309 of said city." Pursuant to the agreement the jury returned a verdict for the appellant in the sum of $1, and a judgment of condemna- at the proper time and place have questioned tion was entered on the verdict, awarding him the stipulated sum as damages, and em'bodying the stipulations contained in the agreement. Thereafter the city improved the streets in accordance with the ordinances in [2] In the court below the appellant offered the agreement mentioned, and thereafter evidence tending to show that the stipulation levied an assessment upon the appellant's on which the judgment was founded was property to pay the costs incurred in doing entered into by his counsel without his knowlthe actual work required by the improvement edge or consent and without his authority, in the sum of $755.54. and he contends in this court that he is entitled to have the assessment set aside for that reason. But there are a number of reasons why this contention cannot prevail, one of which only we shall notice. To allow the appellant now to set aside the assessment, without granting relief in some form to the city, would be to give him the benefit of the judgment in so far as it operates in his favor, and to relieve him from its operation in so far as it militates against him. But judgments which are entered with jurisdiction and founded upon a single consideration operate as a whole. They must be set aside, if set aside at all, as a whole. A party cannot claim the benefit of that part of such a judgment which is in his favor and repudiate it as to the remainder. But this is what the appellant is seeking to do. der to avoid the assessment, he must necessarily rely on that part of the judgment

The present action was instituted by the appellant in December, 1911, to cancel and set aside the assessment on the ground that it was levied without authority of law and is void. Issue was taken on the complaint, and a trial was had which resulted in a dismissal of the action. It is the contention of the appellant that all local and special benefits to his property were offset against the damages recovered in the condemnation proceedings; and hence an assessment against the damaged property for the cost of the improvement is wholly unauthorized and void, and may be set aside at any time at his suit as a cloud upon his title. Undoubtedly, had the appellant tried out the issue of benefits and damages in the. condemnation proceeding, and had recovered therein a sum in damages over and above all benefits that could lawfully be charged against him, the city could not afterwards, under the doc-awarding him damages, as that is the fountrine of the case of Schuchard v. Seattle, 51 Wash. 41, 97 Pac. 1106, have assessed his property to pay any part of the cost of the improvement, and the same result would follow had it been agreed between the city and himself that his property was damaged by the contemplated improvement in some definite sum, over and above all benefits, and a judgment had been entered in his favor for that sum. But the record here presents neither of these aspects. While the record is not as clear on the matter as we could wish to have found it, we gather therefrom that the cost of the improvement was composed of two elements: First, the sum the city was required to pay in damages for the property taken and damaged by the improvement; and, second, the sum it was compelled to pay as the cost of the actual work of making the improvement. As we understand the stipulation, the appellant was willing, in consideration of the sum of $1 and a waiver of the liability to have his property assessed to pay the first element of cost, to submit to an assessment and the property for the

dation of his claim of relief from liability. This part he seeks to maintain, while repudiating that part which is inimical to his claims. This he may not do. To avoid the judgment he must attack it in a direct proceeding brought for that purpose, when the court may give to the other party the relief the merits of the case warrant. Such relief cannot be granted in a collateral proceeding of this character. Michaelson v. Seattle, 63 Wash. 230, 115 Pac. 167.

[3] Finally, it is said that the judgment is void because founded on a stipulation not signed by the city. Our answer to the last objection is a sufficient answer to this, but we may say, in addition thereto, that the city accepted the stipulation as binding upon it, and acted thereon. After so doing, it could not be heard to repudiate it, and, of course, if it cannot repudiate it, the other party cannot do so for it.

The judgment is affirmed.

CROW, C. J., and MOUNT, PARKER, and MORRIS, JJ., concur.

(82 Wash. 314)

W. V. Tanner, Atty. Gen., and John M. WilZAPPALA v. INDUSTRIAL INS. COMMIS- son, Asst. Atty. Gen., for appellant. F. W. Loomis, of Aberdeen, for respondent.

SION. (No. 12107.)

(Supreme Court of Washington. Nov. 17,

1914.)

1. MASTER AND SERVANT (§ 250, New, vol. 16 Key-No. Series)-WORKMEN'S COMPENSATION ACT "FORTUITOUS EVENT."

Hernia caused by attempting to remove a heavily loaded truck is a "fortuitous event" within the meaning of Workmen's Compensation Act (Laws 1911, p. 349) § 3, providing that the words "injury" or "injured," as used in this act, refer, only to an injury resulting from some "fortuitous event" as distinguished from the contraction of disease.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Fortuitous.]

2. MASTER AND SERVANT ($ 25034, New, vol. 16 Key-No. Series)-WORKMEN'S COMPENSATION ACT-INDUSTRIAL COMMISSION-CONCLUSIVENESS OF FINDING.

Workmen's Compensation Act (Laws 1911, p. 368) § 20, providing that in all court proceedings pursuant to the act the decision of the department shall be prima facie correct, has no application to the determination of what constitutes a "fortuitous event" within section 3; there being no disputed facts.

3. MASTER AND SERVANT (§ 25034, New, vol. 16 Key-No. Series)-WORKMEN'S COMPENSATION ACT-RULES OF COMMISSION.

Under the Workmen's Compensation Act (Laws 1911, p. 345), though the court will recognize the rules of the Commission adopted for the purpose of administering the law, it will not be bound by any rule where the interpretation of the act is involved as a matter of law. 4. MASTER AND SERVANT (§ 2504. New. vol. 16 Key-No. Series)-WORKMEN'S COMPENSATION ACT-RULES OF INDUSTRIAL COMMIS

SION-CONSTRUCTION.

Where an attempt by a servant to move a heavily loaded truck resulted in hernia, there may be a recovery notwithstanding a rule of the Commission under the Workmen's Compensation Act (Laws 1911, p. 345) that hernia "coming on while a man is following his usual work is

not an accident."

5. STATUTES (§ 176*)-CONSTRUCTION-QUES

TION OF LAW.

MORRIS, J. Respondent suffers from a hernia and, claiming to have received it under circumstances entitling him to relief under the Workmen's Compensation Act (Laws 1911, p. 345), filed his claim with the Industrial Insurance Commission. The claim was rejected upon the ground that the hernia complained of was not the result of "some fortuitous event" within the language of the act. Respondent then appealed to the lower court where, over the objection of the Commission, the case was submitted to a jury to determine whether or not the injury was such as fell within the act. Verdict was returned for respondent, and the Commission appeals. [1] The determinative question arises under section 3 of the act, providing that:

"The words 'injury' or 'injured,' as used in this act, refer only to an injury resulting from some fortuitous event as distinguished from the contraction of disease."

The respondent was in the employ of a cooperage company, and on the day of the alleged injury was pushing a heavily loaded truck. The language of the respondent in describing the circumstances under which the injury was received was:

"That the car ran harder than usual, and he tried three or four times to start it but could not move it. Then he put all his strength into it, gave a jerk and hurt himself; felt a sudden his hands where he felt the hurt and called for pain; could not move for a little while; put help; looked at himself and saw a swelling, a small lump where he was hurt; that he had never had any pain there before or any previous rupture."

There was other corroborative evidence. It is the contention of the Commission that these circumstances do not disclose that the and that no accident occurred which producinjury resulted from "a fortuitous event," ed the injury, contending that, inasmuch as respondent did not slip or fall, nothing struck him, and nothing happened out of the ordinary which produced the rupture or hernia, it cannot be said that the hernia resulted 6. APPEAL AND ERROR (§ 1062*)-HARMLESs from some fortuitous event. "Fortuitous" ERROR-SUBMITTING TO JURY.

Where a case calls for the interpretation of a statute upon undisputed facts, it is for the court.

[Ed. Note.-For other cases. see Statutes, Cent. Dig. § 255; Dec. Dig. § 176.*]

Where a case calling for the interpretation is defined as: "Occurring by chance as opposWhere a case calling for the interpretation of a statute on undisputed facts was erroneous- ed to design; coming or taking place without ly submitted to the jury, but they came to a cor- any cause; accidental; casual;" and a forturect conclusion, the error is harmless. itous cause is said to be, "A contingent or accidental cause." Standard Dictionary.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4212-4218; Dec. Dig. 8 1062.*]

Department 1. Appeal from Superior Court, Chehalis County; Mason Irwin, Judge.

Claim by John Zappala against the Industrial Insurance Commission. From a verdict of the jury in favor of claimant on appeal from the action of the Commission in rejecting the claim, the Commission appeals. Affirmed.

In construing the language of the act we must have in mind the evident purpose and intent of the act to provide compensation for workmen injured in hazardous undertakings, reaching "every injury sustained by a workman engaged in any such industry, and make a sure and certain award therefor, bearing a just proportion to the loss sustained, regardless of the manner in which the injury was received" (State ex rel. Davis-Smith Co. v. Clausen, 65 Wash. 156, 117 Pac. 1101, 37

L. R. A. [N. S.] 466), and that the act should be liberally interpreted, to the end that the purpose of the Legislature in suppressing the mischief and advancing the remedy be promoted even to the inclusion of cases within the reason although outside the letter of the statute, and that every hazardous industry within the purview of the act should bear the burden arising out of injuries to its employés regardless of the cause of the injury. Peet v. Mills, 76 Wash. 437, 136 Pac. 685. The sustaining of an injury while using extreme muscular effort in pushing a heavily loaded truck is as much within the meaning of a fortuitous event as though the injury were the result of a fall or the breaking of the truck. To hold with the Commission that if a machine breaks, any resulting injury to a workman is within the act, but if the man breaks, any resulting injury is not within the act, is too refined to come within the policy of the act as announced by the Legislature in its adoption and the language of the court in its interpretation. The machine and the man are within the same class as producing causes, and any injury resulting from the sudden giving way of the one, while used as a part of any industry within the act, is as much within the contemplation of the act as the other. When the appellant admits that the breaking of the truck because of the application of unusual force with resultant injury to the workman is covered by the act, then it must admit that the tearing of muscles or the rupture of fibers, or whatever it is that causes hernia, while exercising unusual effort, is likewise covered by the act for there can be no sound distinction between external and internal causes arising from the same act and producing the same result. In Boardman v. Whitworth, 3 W. C. C. 33, a case arising out of the British Workmen's Compensation Act, it was held that an internal injury caused to a person in a normal state of health was a fortuitous and unforeseen event, in a case where a workman while lifting a heavy beam suddenly tore several fibers of the muscles of his back. In Purse v. Hayward, 1 B. W. C. C. 216, it was likewise held that a workman in his master's field, who, finding that the grain had been trodden down by bullocks, stooped to raise it and sprained his left leg, was within the remedies of the same act. The language of the British act is "personal injury by accident arising out of and in the course of employment." The English cases make no distinction between an accident and a fortuitous event as used in our act, for they say in the case above cited, in answering the contention there made that an injury, to be within the British act, must be caused by some fortuitous and external event, that:

"The word 'accident' is a popular word of very wide meaning. Originally a grammarian's word, it has been used from Dr. Jolinson's time until to-day to mean 'that which happens unforeseen, casualty, chance.' For four years this man had successfully used these muscles to lift

this weight; owing, perhaps to carelessness, perhaps to a slip, perhaps to some other cause, except disease, he snaps the fibers of the muscles that had always successfully done the work, and if any ordinary person had been asked what had happened to him, he would have said that the man had had an 'accident,' and I think the is the same as if he had been using a rope strong word would have been rightly used. To me it enough for the purpose, and by overstrain or sudden jerk the rope had snapped and the beam dent. In one case the work is done by a rope; had fallen upon him. That would be an acciin the other by a set of muscles. In each case the machinery is normally fit for the work, but the unexpected happens, and the rope or muscle ing, there is in the word 'accident' always an snaps and there is an accident. To my thinkelement of injury. ** * As to the word 'fortuitous,' I do not think I need trouble much about it. If the injury were caused by disease, it is clear that the applicant could not recover; but I find as a fact the man was not in any way diseased. Indeed, it was not seriously contended that he was. 'Fortuitous' means 'accidental,' 'casual,' 'happening by chance;' and I have already said that, in my opinion, this injury was caused by an accidental and fortuitous event."

So that, so far as concerns the class of injuries for which acts of this character provide compensation, no sound distinction can be made between those resulting from accident and those resulting from some fortuitous event. The above reasoning is that employed by the county judge. Upon appeal (85 L. T. 502) the judgment was affirmed, the court saying:

"In determining the question whether the injury has been caused by an 'accident' or not, we must discriminate between that which must occur and that which need not necessarily occur in the course of the employment. If the thing must happen, it is not an accident, but if it need not happen, then there is the fortuitous element and there is an accident."

Fenton v. Thorley & Co., 5 W. C. C. 1, another English case, arose out of these circumstances: The workman, while turning a wheel attached to a press, "suddenly felt something which he describes as a tear in his inside, and upon examination it was found that he was ruptured. There was no evidence of any slip, wrench, or sudden jerk." It was held below, following Hensey v. White, 2 W. C. C. 1, relied upon by appellant, that there could be no recovery because of "an entire lack of the fortuitous element." This contention was overruled, and it was said that the word "accident," as used in the British act, was used in its popular ordinary sense as denoting an unlooked-for mishap or an untoward event which is not expected or designed. Reference is made to Stewart v. Coal Co., 5 F. 120, where a miner strained his back in replacing a derailed coal hutch, and the question arose, Was it an accident within the meaning of the act? All the judges held that it was, and that when "a workman in the reasonable performance of his duties sustains a psychological injury as a result of the work he is engaged in, this is accidental injury in the sense of the statute.

If such an occurrence as this cannot be described in ordinary language as

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