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an accident, I do not know how otherwise him by the law in seeking to overrule the deto describe it."

undisputed facts.

cision of the insurance commission. There U. S. Mut. Accident Ins. Ass'n v. Barry, is no dispute as to the facts resulting in the 131 U. S. 100, 9 Sup. Ct. 755, 33 L. Ed. 60, injury, so that we are not called upon to reand North American Life & Accident Ins. Co. view any decision reached by the Commisv. Burroughs, 69 Pa. 43, 8 Am. Rep. 212, are sion on disputed facts. The question is rathcited in support of the holding. Both of er one of law in determining the proper these are accident insurance cases. In the interpretation of the act as applied to the first, a man was fatally injured in jumping off a platform. In the second, an acci- [3, 4] The appellant also suggests that the dental strain resulted in death. The opin- court ought not to disturb the rulings of the ion in each case was that death resulted from Commission upon questions of policy involvan accidental injury within the meaning of ing the administration of the act, and that the policy. These two cases, so cited by the the Commission, having adopted certain rules English court, have been approvingly cited for their government in these cases, should by this court in Horsfall v. Pacific Mutual be upheld in their observance. In so far Ins. Co., 32 Wash. 132, 72 Pac. 1028, 63 L. as the Commission has adopted any rules R. A. 425, 98 Am. St. Rep. 846, where it that pertain to the administrative features was held that a violent dilation of the heart, or those matters that are peculiarly within resulting in death caused by lifting a heavy the control of the Commission, the courts, we weight, was within the provision of an acci-apprehend, will recognize its right to do so. dent policy covering accidents caused solely by external, violent, and accidental means. In Timmins v. Leeds Forge Co., 16 T. L. R. 521, it was held that a workman who ruptured himself owing to the difficulty of lifting a plank frozen to another plank was within the British act, the court saying the evidence showed the injury to be "fortuitous and unexpected."

But this does not mean that in our interpretation of the true intent and purpose of the act on a pure question of law we are bound by any ruling of the Commission. If so, there would be no purpose in the appeal to the courts provided by the act. Whenever the Industrial Insurance Commission interprets the law, that interpretation is reviewable in the courts, and while in any given The American cases arising out of acts of case, as in this, the courts will give due rethis character sustain our conclusion that spect. to the rulings of the Commission, they there is no distinction between the accident must finally act upon their own determinaand a fortuitous event. In Bryant v. Fissell, tion as to what the law means and the extent 84 N. J. Law, 72, 86 Atl. 458, it is said, in to which it is applicable. The rules adopted defining the word "accident" as used in the by the Commission governing hernia cases New Jersey act, "An 'accident' is an unlooked-are: (1) There must be an accident resultfor mishap or untoward event which is not ing in hernia; (2) the hernia must have apexpected or designed," citing Fenton v. Thor-peared just following the accident; (3) there ley, supra. In Re William Murray, Op. Sol. D. C. & L. p. 201, it is held that a rupture of the internal organs, due to the change between high and normal atmospheric pressure, was an accident. In McGuigan v. Maryland Cas. Co. the Massachusetts Industrial Accident Board holds that, where a carpenter strained himself moving a heavy radiator, he was within the act granting compensation for personal injuries sustained in the course of employment. In Gross v. Marshall Butters Lumber Co. the Michigan Industrial Accident Board holds that a workman suffering "severe straining of lumbar muscles and bruising of the third and fourth vertebrae" was entitled to compensation under a classification similar to that in the Massachusetts act. The above cases are collated in 1 Bradbury's Workmen's Compensation, 367. It seems to us it is not necessary to go further in support of our ruling that the injury to the respondent resulted from a fortuitous event within the meaning and intent of our act.

[2] Section 20 of our act provides that: "In all court proceedings under or pursuant to this act the decision of the department shall be prima facie correct, and the burden of proof shall be upon the party attacking the same.

It is now contended that respondent has

must have been present pain at the time; (4) the applicant must show that he did not have hernia before the accident; (5) hernia coming on while a man is following his usual work is not an accident. We see no difficulty in sustaining a recovery under these rules, the evidence in our judgment meeting every requirement here made. The evidence takes the case out of the fifth rule, showing, as we have held, that the hernia in this case resulted from a fortuitous event or accident, and is not one appearing while the workman was following his usual work, without accident or fortuitous event to which the result might be directly traceable.

[5, 6] The only error we find in the record is the sending of the case to the jury. The case, calling for an interpretation of the language of the act upon undisputed facts, was one of law for the court. But, inasmuch as the jury has reached the proper conclusion, we do not feel that we would be justified in holding this error so prejudicial as to require a reversal of the judgment and the ordering of a new trial.

The judgment is sustained.

CROW, C. J., and GOSE, CHADWICK,

(82 Wash. 347)

STATE V. JOHNSON.

(No. 12240.) (Supreme Court of Washington. Nov. 21, 1914.) 1. FISH (§ 15*)-TAKING OYSTERS-INFORMATION-SUFFICIENCY.

Rem. & Bal. Code, § 5248, declares that no license shall be granted to take seed from any oyster land reserve, except between April 1st and June 15th of each year, and at no time before 5 o'clock in the morning or after 8 o'clock in the evening, while section 5253 makes it a misdemeanor to take oysters from reserves, contrary to the provisions of law. An information charged that accused in the county of M., between 8 o'clock in the evening of the 14th day of December and 5 o'clock in the morning of the succeeding day, willfully and unlawfully took oysters from state oyster land reserves, Held, that the information sufficiently charged the offense of unlawfully taking oysters from state oyster reserve lands; the date specified showing that the oysters were taken at a time when no license could be issued.

[Ed. Note. For other cases, see Fish, Cent. Dig. §§ 27-30; Dec. Dig. § 15.*]

2. INDICTMENT AND INFORMATION (§ 86*)SUFFICIENCY.

An information charging the offense of unlawfully taking oysters from state oyster reserve lands is not bad because it did not particularly describe the lands from which the oysters were taken; it being sufficient for the information to allege the county in which the lands were located.

[Ed. Note. For other cases, see Indictment and Information, Cent. Dig. §§ 230-243; Dec. Dig. § 86.*]

Department 1. Appeal from Superior Court, Mason County; Charles Charles Ethelbert Claypool, Judge.

John G. Johnson was charged with a misdemeanor, and, from a judgment disa judgment dismissing the information, the State appeals. Judgment reversed.

See, also, 141 Pac. 1040.

R. A. Lathrop, of Shelton, for the State. J. P. Fisk, of Shelton, and Troy & Sturdevant, of Olympia, for respondent.

MORRIS, J. [1] Appeal by the state from a judgment dismissing an information and discharging the accused, upon the ground that the information did not state facts sufficient to constitute a crime. The charging part of the information is as follows:

"He (the said John G. Johnson), in the county of Mason, state of Washington, on the 15th day of December, 1913, between 8 o'clock in the evening of the 14th of December, 1913, and 5 o'clock in the morning of the said 15th day of December, 1913, willfully and unlawfully took a quantity of oysters from the state oyster land reserves."

The alleged defect is in the failure to state that the taking was without a license and to particularize the state oyster reserve from which the oysters were taken. The controlling statutes are section 5248, . Rem. & Bal. Code, providing that:

"No license shall be granted to take seed from any oyster land reserve except between the first day of April and the fifteenth day of June of each year, and at no time before five o'clock in

the morning, or after eight o'clock in the evening"

and section 5253, making it a misdemeanor to take oysters from any of the state oyster reserves, contrary to the provisions of the act.

Our statutes regarding the sufficiency of informations are very liberal. They provide that it is sufficient to set forth the act charged in ordinary language and in such a manner as to enable a person of common understanding to comprehend what is intended. What is the offense named in this act, so far as here material? Plainly, the taking of oysters from the state oyster land reserves, except between April 1st and June 15th of each year, or at any time between 8 o'clock p. m. and 5 o'clock a. m. of the following day. The information charges the unlawful taking of oysters from the state

oyster land reserves in Mason county on

the morning of December 15, 1913, between 5 a. m. of that day and 8 p. m. of the preceding day. Every essential feature of the crime declared is embodied in the crime charged, and no difficulty would be experienced by any person of common understanding in knowing the particular act charged against him. There is no need to charge that the taking was without a license, for the state issues no license to take oysters from its reserves on December 15th, or between 8 o'clock p. m. and 5 o'clock a. m. of the following day. It is not the failure to have a license that constitutes the crime, but the taking on the day and during the hours indicated; and such a taking will constitute a violation of this act, even though the person charged had a license to take oysters at such times as the state permits oysters to be taken from its reserves.

[2] Neither is it fatal to fail to state the particular oyster reserve from which the oysters were taken, assuming that there are a number of such reserves in Mason county. Since the state permits oysters to be taken from its reserves, the gravamen of the crime is, not the taking of the oysters, but the taking at prohibited times; and the place from whence the oysters were taken need be stated only in sufficient terms to confer jurisdiction upon the court in which the act is charged. We have degrees of arson and burglary which provide against willful burning in the nighttime or felonious entry in the nighttime, and the gravamen of those offenses is the commission of the act

in the nighttime; the dwelling house burned or burglarized need be stated only with sufficient particularity to show jurisdiction. It seems to us the analogy is perfect, and that the one case requires no more particular description of the place at which the crime was committed than does the other. Counsel for respondent states that the public records show more than 50 oyster reserves in Mason

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

conspiracy between such officer and a subse-
quent assignee of the mortgage to cheat and
defraud plaintiff of the property, were mere emp-
ty accusations, and, in the absence of allega-
tion of any act of such officer on which to found
such charges, were nugatory.

Cent. Dig. §§ 12-282, 68; Dec. Dig. § 8.*]
[Ed. Note. For other cases, see Pleading,
3. SALES (§ 474*)-CONDITIONAL SALE-IM-

PROPER FILING-RECEIVER'S SALE.

Where, after a corporation had executed a mortgage on its property, including that sold filed, the corporation became insolvent, and its to it by a conditional sale contract improperly assets passed into the hands of a receiver, and there were subsequent creditors in good faith, as to whom the conditional sale contract was 3670, a sale of the corporation's property, free invalid, as provided by Rem. & Bal. Code, & and clear of liens of every kind, vested the purchaser with an absolute title, freed from every claim of the conditional seller.

county. The public records might likewise | properly filed, fraudulently and pursuant to a show that the same individual owned 50 dwellings in a given county, but this would not require a statement of the particular dwelling burned or burglarized, so long as the one burned is described as within the county in which jurisdiction was sought. The case that comes nearest sustaining respondent's contention is State v. Muller, 141 Pac. 910, where it was held that, in charging the offense of bringing intoxicating liquor into a dry unit under the local option law, it is necessary to name the unit in which the offense was committed. This is so, because the several units of a county are municipal or political entities, and can only be known by their particular name, just as an individual is known by his particular name; and to refer to any one of the several units in a county as "a dry unit in said county" is no more of a description than to refer to an individual, against whom a crime has been committed, in no other way than as "a person in said county." Besides, the particular statute under which the offense was laid in the Muller Case localizes the place as "in the unit where the violation is alleged to have occurred," thus making the particular unit, into which the liquor is brought, a material part of the offense. It was because of this definiteness of description that it was held it was necessary to designate the particular unit. Such reasoning, because of the absence of similar language in the two statutes, has no application here. We are therefore of the

opinion that the information was sufficient

and should have been sustained. The judgment is reversed.

Dig. §§ 1391-1402; Dec. Dig. § 474.*]
[Ed. Note.-For other cases, see Sales, Cent.

4. ELECTION OF REMEDIES (§ 7*)—RECEIVER

SHIP PROCEEDINGS-VALIDITY OF LIEN-ES-
TOPPEL.

Where a conditional seller, whose contract had not been properly filed, so as to preserve brancers, and creditors in good faith, filed his his lien against subsequent purchasers, incumclaim with a receiver of the conditional buyer to have the same allowed as a preference or return the property, and, on its being denied, instituted a proceeding in the receivership action to reverse the receiver's ruling, and the judgment denying such relief was affirmed on appeal, the seller was estopped from thereafter asserting chaser thereof at the receiver's sale, notwithany claim against the property as against a purstanding all the issues raised in the prior trial were not there determined.

[Ed. Note.-For other cases, see Election of

Remedies, Cent. Dig. § 12; Dec. Dig. § 7.*]

Department 2. Appeal from Superior Court, Chehalis County; Mason Irwin, Judge.

Action by the North Coast Dry Kiln Com

CROW, C. J., and GOSE and PARKER, pany against the Montecoma Investment JJ., concur.

(82 Wash. 247)

Company and another. From a judgment for defendants, plaintiff appeals. Affirmed.

Paul B. Phillips, Milo A. Root, and W. G. McLaren, all of Seattle, for appellant. Hay

NORTH COAST DRY KILN CO. v. MONTECOMA INV. CO. et al. (No. 11865.) (Supreme Court of Washington. Nov. 16, 1914.) den, Langhorne & Metzger and Sullivan &

1. CORPORATIONS (§ 306*) — OFFICERS — ADVANCES-MORTGAGES.

Where an officer of a corporation had made large advances to it and had become its surety for large sums, he could properly take a mortgage on its property, including certain personalty sold to it under a conditional sale, which was invalid, as to subsequent purchasers and creditors in good faith, for want of proper filing, and was under no obligation to the conditional seller by reason of having subsequently assigned the mortgage to a corporation on consideration of its agreeing to release him from liability on the mortgagor's obligations to its stockholders, which he had indorsed, and a subsequent sale of the property to the assignee of the mortgage by a receiver.

[Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 1457, 1458; Dec. Dig. § 306.*] 2. PLEADING (§ 8*)-FRAUD.

An allegation that an officer of a debtor corporation took a mortgage on its property, including certain personalty sold to the corporation by plaintiff under a conditional sale contract not

Christian, all of Tacoma, for respondents.

FULLERTON, J. This is an appeal from a judgment rendered against the appellant after demurrers had been sustained to its complaint and after it had elected to stand thereon. The ultimate question presented by the appeal, therefore, is: Does the complaint state facts sufficient to constitute a cause of action?

The facts set forth in the complaint are in substance the following:

On December 5, 1910, the appellant sold to the Syverson Lumber & Shingle Company, a corporation, under a conditional sale contract, and delivered to it, as its shingle mill at Montesano, certain dry kiln fixtures and furnishings at the agreed price of $1,790, of which sum $442.22 was subsequently paid. The conditional sale contract was regular in

form, and provided that the title to the whole | ceiver refused to allow the claim as a preferof the property should remain in the appellant vendor until the full purchase price was paid. The shingle company was organized in Pierce county, Wash., and its head office and legal residence was at Tacoma therein. The respondent G. A. Onn was an officer of the shingle company, and signed the conditional sale contract on behalf of the company, as such officer. The appellant failed to file the conditional sale contract for record in the auditor's office of Pierce county, the legal place of residence of the shingle company, but did file it for record in the auditor's office of Chehalis county.

red claim or to return the fixtures, but allowed the claim as a general creditor's claim, and so notified the appellant. The appellant thereupon presented a petition to the court, in which the receiver action was pending, praying that the receiver be required to recognize and allow its claim as a preferred claim, or return to it the property, as demanded in its claim presented to the receiver. The receiver, answering the petition, objected to the relief demanded on the ground that the conditional sale contract had not been recorded as required by statute, and the sale was, in virtue of the statute, absolute as to purchasers, and incumbrancers of the property, and subsequent creditors of the shingle company who had become such in good faith, and that there were such incumbrancers and creditors. The court entered upon a hearing of the issues raised by the petition and objections thereto, at which hearing (to quote from the appellant)—

66

Prior to January 7, 1911, the respondent Onn had advanced for the use of the shingle company various sums of money, aggregating $21,000, and had become its surety for a loan made to it by the National Bank of Commerce of Tacoma in the sum of $13,500. On the day named he agreed to advance to the use of the shingle company such further sums as it might require up to the sum of it was agreed in open court that $9,000. To secure this indebtedness and lia- the only matter then to be determined was bility, the shingle company, on the same day, whether the conditional sale contract was so executed to him a mortgage on all of its prop-ing no actual knowledge or notice of the claim filed as to be notice to subsequent creditors, haverty in Chehalis county, including the proper- and priority of this plaintiff, and it was further ty described in the conditional contract of agreed that the determination as to which credisale. Of the sums agreed to be advanced, tors, if any, subsequent to this plaintiff, became such with actual knowledge of the title of this Onn subsequently advanced $5,500, and later plaintiff in said dry kiln equipment should be on paid the note due the National Bank of postponed till after the final adjudication of the Commerce. The shingle company was then rights of creditors having no notice of this plainindebted, or subsequently became indebted, in tiff's equity; and that thereafter, on, to wit, the 5th day of August, 1912, the prayer of said large sums to general creditors, some of petition was denied by said court, and judgment whose claims had been "underwritten or was entered dismissing this plaintiff petition, guaranteed" by the respondent Onn. On from which judgment this plaintiff appealed to the Supreme Court of the state of Washington, April 27, 1912, the shingle company was ad- and that, after due proceedings and hearings, judged insolvent at the suit of an unsecured the decision of said Supreme Court was rendercreditor, and a receiver was appointed, who ed, and the judgment of the trial court affirmed immediately took possession of all its assets proceedings were ever had to determine the prion the 17th day of March, 1913; but that no and property, and, as alleged in the com- orities between this plaintiff and the defendants plaint, now has possession of such property, herein or those claimants, or their assigns, if "and has and does now manage and control any, who were charged with notice to this plaintiff's security and equity." said property and assets of said insolvent company." At or about the time of the commencement of the action in which the receiver was appointed, certain of the general creditors of the shingle company, whose claims had been guaranteed by Onn, organized and became stockholders in the respondent corporation, Montecoma Investment Company. This company afterwards took an assignment from Onn of his interests in the mortgage executed to him by the shingle company, and, as a consideration for the assignment, agreed to and did assume the liability of Onn arising out of his guaranty of the claims of its stockholders.

On June 14, 1912, the appellant filed with the receiver its verified claim for the unpaid portion of the purchase price of the dry kiln fixtures and furnishings as a preferred or secured claim, asking, as an alternative, in case the claim should not be allowed as a preferred or secured claim, for the return to it of the fixtures and furnishings. The re

While these proceedings were pending, the Montecoma Investment Company presented its claim to the receiver for the amount of its assigned mortgage and accumulated interest, the whole amounting to upwards of $45,000, asking that it be allowed as a preferred claim against the shingle company and its general creditors to the extent of the property covered by its mortgage. The claim was so allowed by the receiver and by the court, and afterwards, on February 5, 1913, the receiver, under the direction of the court, offered the mortgaged property for sale, at which sale the Montecoma Investment Company bid therefor the full amount of its claim, and the same was sold to it on such bid. The sale was afterwards approved by the court, and suitable and proper conveyances were made to the investment company evidencing the sale. Subsequently the investment company sold and delivered a part of the property, which part included the dry

kiln fixtures, to the Hoquiam Sash & Door Company, for a valuable consideration.

It is then alleged that the Montecoma Investment Company has not satisfied the assigned mortgage of record, and still holds the same, and holds, of the property therein described, certain real property situated in Chehalis county, and further:

"That the claim of this plaintiff is and was superior to the claim of said G. A. Onn and said Montecoma Investment Company under said mortgage, and that said G. A. Onn and his assignee, the Montecoma Investment Company, and each of them, were and are trustees under said mortgage and under said conditional sale contract, for the benefit of this plaintiff, to the extent of the unpaid portion of the purchase price of said dry kiln apparatus, to wit, the sum of $1,354.78, with interest thereon at 8 per cent. per annum from the 12th day of January, 1911, and that they, and each of them, have fraudulently and unbeknown to this plaintiff conveyed said property, and that they, and each of them, have fraudulently and unbeknown to this plaintiff converted to their own use the funds and assets held by them in trust for this plaintiff, and have conveyed, and caused to be conveyed, to bona fide purchasers the property so held by them as security in trust for this plaintiff, to the damage of the plaintiff in the sum of $1,354.78, with interest thereon from January 12, 1911, at 8 per cent. per annum." In appropriate places in the complaint the acts of the respondents Onn and the Montecoma Investment Company are characterized as fraudulent, being the result of a conspiracy entered into for the purpose of cheating and defrauding the appellant and the general creditors of the shingle company. It is also alleged that the shingle company, at the time of the execution of the mortgage to Onn, was, and at all times since has been, insolvent, and has no property other than the mortgaged property, out of which the claims of the creditors can be satisfied. The prayer is in the alternative, first, for a judgment against the respondents for the unpaid portion of the appellant's claim, and, second, if the first relief demanded be denied, for a judgment subjecting the property still held by the respondent Montecoma Investment Company to the payment of its claim.

The respondents appeared separately in the court below and so appear in this court. Their demurrers were substantially similar, and were both special and general; it being alleged therein that there was another action pending for the same cause of action, that the cause of action set forth in the complaint had been adjudicated, and that the complaint did not state facts sufficient to constitute a cause of action. The judgment of the court is general, and does not specify on which of the grounds stated in the demurrers, whether one one or more, it was thought the judgment could be rested.

[1] Noticing first the allegations of the complaint with respect to the respondent Onn, we are clear that no cause of action is stated against him. In so far as any actual participation on his part in the transaction

lant's cause of action is charged, his acts were simple and above board. He was an officer of the Syverson Lumber & Shingle Company. pany. That That company purchased certain fixtures from the appellant on a conditional sale contract, and Onn signed the contract on behalf of the company as such officer. He had made large advances to the shingle company, and had become its surety for large sums. He agreed to make further advances, and, in consideration thereof, the company executed a mortgage to him on its property, including that held under the conditional sale contract, to secure the advances he had agreed to make and a part of the obligations of the company for which he stood as surety. Subsequently he made the advances agreed upon and paid the secured obligation on which he was bound as surety. Later on certain creditors of the shingle company, holding claims on which he was indorser, organized the respondent corporation, and this corporation took an assignment of the mortgage, and as a consideration therefor agreed to relieve him of the shingle company's obligations to its stockholders which he had indorsed. Here his connection with the transaction ended. In so far as the complaint shows, he had no part in the subse quent proceedings by which the title and possession of the property claimed by the appellant was transferred from the shingle company to the Hoquiam Sash & Door Company, nor is it alleged that he had any secret interest or profit in the transaction. On the contrary, the inference is, although it is not directly so alleged, that he sacrificed the very considerable advancements he had made on behalf of the shingle company in consideration that he be relieved from further obligation which he had guaranteed. In taking the mortgage, Onn violated no rule of law or morals, nor did he do so when he assigned it. These acts neither disturbed the possession of the property nor affected the appellant's right to enforce its contract. The appellant was in no way obligated by the mortgage, and could recover the property as well after it was given as it could before that time. We can therefore see no reason for the conclusion that the acceptance and subsequent transfer of the mortgage rendered the respondent liable to answer for the unpaid portion of the purchase price of the property.

[2] It is true the appellant alleges that the mortgage was taken fraudulently and in pursuance of a conspiracy entered into between the respondent and the assignees of the mortgage for the purpose of cheating and defrauding the appellant of the property, but no act of the respondent is pleaded on which the charges can justly be founded. Manifestly they are but empty accusations of the appellant, the only use of which is to stigma. tize acts the appellant conceives are adverse

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