The judgment is affirmed. DUNBAR, C. J., and PARKER and MOUNT, JJ., concur. found that he testified to the immaterial | peal. This motion is likewise untimely and matters which were imputed to him by the cannot be considered here. information. But as we say the court charged that all of the testimony imputed to the defendant by the information was material to the inquiry in the civil action. As this was not excepted to, it became the law of the case, and the appellant cannot now be heard to say that all of it was not material. This would be to mislead the trial judge, and cause trials to be had in the trial court on one theory and in this court on another, a thing the law does not tolerate. (63 Wash. 213) BUCHHOLZ v. BUCHHOLZ et al. (Supreme Court of Washington. April 19, 1911.) 1. EXECUTORS AND ADMINISTRATORS (§ 10*)— GRANTING OF LETTERS-RESIDENCE OF DECEDENT "RESIDENT." Rem. & Bal. Code, 1284, subd. 1, provides that wills shall be proved and letters testamentary or of administration shall be granted in the county in which decedent was a resHeld, that the word "resident," as used, imident or had his place of abode at his death. ports a legal residence or domicile. [Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. §§ 22, 23; Dec. Dig. § 10.* For other definitions, see Words and Phras es, vol. 7, pp. 6161-6166; vol. 8, p. 7788.] [13] The state did not have to prove all the matter imputed to the defendant precisely as it had alleged it. The substance of the allegations was all that was required to be proved. Hence, when all the matter alleged was material, it was proper to charge that the defendant could be convicted by proof of some substantial part of the matter alleged. [14] A motion for a new trial was filed in the court below based upon a claim of misconduct of the regular judge of Walla Walla county. From the record it appears that the trial of the defendant was presided over by a judge called for that purpose from an ad- While ordinarily it is the privilege of the joining county, and that the regular judge husband to fix the family domicile, and Rem. was subpoenaed by the state as a witness on & Bal. Code, § 5926, providing that all laws imposing civil disabilities upon a wife not imits behalf. The charge is that he intermin- posed as existing as to the husband are abolgled with the other witnesses on behalf of the ished, did not dissolve the unity of the marstate, and manifested such a friendly regard riage relation and give the wife the right to and interest in their welfare as to give them establish a domicile for herself without regard to that of the husband, yet where the husband a character and standing before the jury has deserted his wife, or where there has been that they otherwise would not have had and a mutual abandonment of the marriage relawhich they did not deserve. The matter tion, the wife may establish a separate domiseems to have been suggested to the presid-cile for herself for all purposes, including the administration of her estate. ing judge for the first time after verdict by affidavits filed with the motion for a new trial. It is our opinion that the objection was made too late to avail the defendant, even conceding the objection to be of merit. The remedy for misconduct on the part of any one during the progress of a trial is to call the attention of the presiding judge to the alleged misconduct and move by some proper procedure to have the matter corrected. It is not timely to await the result of the trial and then complain only in the case of an adverse verdict. Nor does it matter that the guilty party may be the regular Judge of the court in which the trial is being had. When merely attending the court as a witness, such judge is subject to all the penalties of an ordinary witness. Whether therefore the alleged misconduct was sufficient to warrant the granting of a new trial we shall not inquire, as we think the question not properly in the record. [15] Since the appeal of this cause, and while the case was in this court, a second motion for a new trial was presented to the court below, overruled by that court and certified to this court. The motion is based on an affidavit obtained from the prosecuting witness subsequent to the taking of this ap [Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. §§ 5-8; Dec. Dig. § 3.*] 3. DOMICILE (5*)-HUSBAND AND WIFE. The word "domicile," as applied to the marriage relation, means a home where the husband and wife dwell together in amity. [Ed. Note.-For other cases, see Domicile, Cent. Dig. §§ 24-35; Dec. Dig. § 5.* For other definitions, see Words and Phras es, vol. 3, pp. 2168–2179; vol. 8, pp. 7641, 7642.] Department 1. Appeal from Superior Court, Stevens County; D. H. Carey, Judge. Action by Frederick W. Buchholz against Orlin W. Buchholz and others. Judgment of dismissal, and plaintiff appeals. Affirmed. Jackson & Bailey and G. G. Ripley, for appellant. Belden & Losey, for respondents. GOSE, J. The appellant and his deceased wife, Justina, were married in 1867, in the state of Minnesota. They moved to Spokane in this state in 1887. The wife died at the latter place on October 15, 1908. From 1887 until her death her actual residence had been at all times in the city of Spokane and its immediate vicinity in Spokane county. She had at no time been in Stevens county. About November, 1898, the appellant, a clergyman, was appointed to a charge embracing Stevens husband, are hereby abolished, and for any unjust usurpation of her natural or property rights she shall have the same right to appeal in her own individual name to the court of law or equity for redress and protection that the husband has: Provided always, that nothing in this chapter shall be construed to confer upon the wife any right to vote or hold office, except as otherwise provided by law," the right of the wife to establish a domicile for herself, wherever and whenever she chooses, without regard to the domicile of the husband, cannot be questioned. We cannot think that the statute last quoted should receive so broad a construction. Its setting in the original acts shows, we think, that the Legislature did not have such intention. Laws 1879, pp. 77-81; same, p. 151; Code 1881, §§ 2396-2418. The whole scope of the act shows conclusively, we think, that the lawmaking body intended to confer upon the wife the right to acquire and hold property, to sue, and to be sued, to contract, etc., and to give her equal rights with the husband in the custody of the children. To this extent her legal entity and identity were established. It seems certain that the Legislature did not intend to dissolve or destroy the unity of the marriage county and a small part of Spokane county. [ imposed or recognized as existing as to the He continued in that district for about six years, after which his work embraced Stevens county only. Since 1906 he has not been engaged in ministerial work. Since 1898 his domicile has been in Stevens county first, and until about 1905 at a place called Addy, and thereafter at his farm at Evans. The deceased left four children, two sons and two daughters; the youngest daughter being about 30 years of age at the time of her death. She also left surviving her a grandchild, aged about thirteen years, the child of a deceased son. On November 30, 1908, upon the petition of appellant, an order was entered in the superior court of Stevens county appointing him administrator of the estate of his wife. The petition alleged and the order recited that the deceased was a resident of Spokane county at the time of her death. On the 25th day of October, 1909, the appellant applied for and was granted leave to file an amended petition for letters of administration. In the amended petition he alleged that the deceased was a resident of Stevens county at the time of her death. In response to his citation, the sons and daughters answered, denying that their mother was at any time a resident of Stevens county, and averred that she was a resident of Spokane county at the time of her death.relation. Later legislation touching the marUpon the issue thus joined the case was tried to the court. The court found "that at the time of the death of the said Justina Buchholz she was a resident of, and had her place of abode in, Spokane county, state of Washington, and was not at said time a resident of Stevens county." As a conclusion of law the court found "that the court is without jurisdiction in the premises, and that this action be dismissed." A decree was thereupon entered vacating the former order and dismissing the amended petition. This appeal followed. riage relation indicates the correctness of this view, notably the statute (Rem. & Bal. Code, § 2444), which makes it a crime for the husband to willfully neglect to support his wife. Nor can we agree with the appellant's view of the law. We accept his statement of the law that, generally speaking, it is the privilege of the husband to fix the family domicile. His duty to maintain and support the family and his right to establish the domicile are correlative. A further statement of the facts is essential to a proper understanding of the case. The appellant testified that, although he knew his wife was ill, he did not visit or see her for some nine or ten months preceding her death. Two or three days before her death she requested her children not to notify their father of her decease, assigning as a reason that he had not cared for her while she was alive. He was not notified of her death, and was not present at her burial. One of the sons testified that the father said to him in speaking of the deceased that "he was not going to have anything more to do with her." This was five or six [1] Our statute (Rem. & Bal. Code, § 1284, subd. 1) provides that wills shall be proved, and letters testamentary or of administration shall be granted, first, "in the county in which the deceased was a resident or had his place of abode at the time of his death." The appellant contends that the word "residence," as used in the statute quoted, means a legal residence or domicile. It is not claimed that the deceased had her abode in Stevens county at the time of her death. We think this court has in effect so construed the statute. State ex rel. Baldwin v. Superior Court, 11 Wash. 111, 39 Pac. 818. How-years preceding her decease. He made a like ever, we have no doubt that the word "residence" is here used in its strict legal sense. [2] The appellant next contends that the domicile of the wife until divorced follows that of the husband for the purpose of administration. Respondents insist that, under the provisions of Rem. & Bal. Code, § 5926, “All laws which impose or recognize civil disabilities upon a wife, which are not statement to another son two or three years later. The appellant's conduct from 1898 to the date of the death of his wife confirms the truth of this testimony. His words do not square with his conduct. On December 15, 1905, he leased his home in Stevens county and the ground upon which it was situated for a term of five years to a widow, whom he married about six months after the death of the deceased. The consideration for the lease was that the lessee should furnish the lessor with "boarding and lodging." The appellant testified that the lessee owned the household goods in Stevens county. The appellant from December, 1905, was only a boarder in his own home. The record speaks but one language, and that is that he did not desire or intend that his wife should share his domicile in Stevens county. This inference is too strong to be overcome by his declarations to the contrary. By his own willful neglect of his marital duties, speaking of his conduct in the most charitable light as we view it from the record, he destroyed the home and the marriage entity. There was nothing left but the mere shell of the marriage relation. Where the husband has deserted the wife, or where there has been a mutual abandonment of the marriage relation so that every purpose of marriage is destroyed, the reason for the rule that the husband can fix the family domicile ceases, and the rule ceases, and the wife is then at liberty to establish a separate domicile for all purposes. Gordon v. Yost (C. C.) 140 Fed. 79; Town of Watertown v. Greaves, 112 Fed. 183, 50 C. C. A. 172, 56 L. R. A. 865; Shute v. Sargent, 67 N. H. 305, 36 Atl. 282; In re Florance's Will, 54 Hun, 328, 7 N. Y. Supp. 578; 84 Am. St. Rep. note 8, pp. 33, 34. In the Gordon Case it was held that, where the husband has deserted the wife, she may be a resident and citizen of a different state from her said: If she was enough of a [3] The word "domicile," as applied to the marriage relation, means a home where the husband and wife dwell together in amity. Whilst we think that the husband notwithstanding the liberal provisions of our statute has the right under normal conditions to fix the family domicile, there is no sound principle of law which forbids the wife, when the essence of the marriage relation has been destroyed, from establishing a separate domicile for every purpose. These views are supported in principle by McCain v. Gibbons, 7 Wash. 314, 35 Pac. 64, and Kimble v. Kimble, 17 Wash. 75, 49 Pac. 216. The judgment is affirmed. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 4024; Dec. Dig. § 927.*] 2. MASTER AND SERVANT (§ 302*)—INJURIES TO THIRD PERSONS-ACTS WITHOUT SCOPE OF EMPLOYMENT. 3. NEGLIGENCE (§ 45*)-BUILDINGS TORS INJURIES TO LICENSEES. ELEVA husband for the purpose of prosecuting a suit in a federal court to recover for the alienation of his affections and causing his desertion. In the Town of Watertown Case an undivorced Where plaintiff, the servant of a contracmarried woman was permitted to sue in a tor, went into an elevator shaft in an unfinished federal court, in an action of tort, for the building and told the elevator boy not to come recovery of damages for injuries caused by below a certain floor, and the elevator boy a defective sidewalk. The contention that promised not to do so until notified, but the elevator boy disregarded his promise, and the she could only establish a quasi domicile plaintiff was injured, the elevator boy was not apart from the domicile of her husband for acting outside the scope of his employment, and the purpose of divorce was rejected. In con- his promise did not make him plaintiff's servant. sidering the limitations of the rule that the [Ed. Note.-For other cases, see Master and domicile of the wife follows that of the hus-Servant, Cent. Dig. §§ 1217-1221; Dec. Dig. § 302.*] band, the court said: "If the husband abandons their domicile and his wife, and relinquishes altogether his marital control and protection, he yields up that power and authority over her which alone make his domicile hers." In the Shute Case the wife was an actual resident of the state of New Hampshire at the date of her death. The husband retained a domicile in Massachusetts, but had abandoned his wife before she left that state. It was held that the wife was domiciled in New Hampshire at the time of her death. The court said that, in view of modern legislation, "no reason would seem to remain why she may not acquire a separate domicile for every purpose known to the law." In Re Florance's Will, it is The owner of a building who, before its completion, admits tenants, and operates elevators for their accommodation, is required to see that such elevators are not so operated as to injure servants of contractors working in the elevator shafts. [Ed. Note. For other cases, see Negligence, Dec. Dig. 8 45.*] Department 2. Appeal from Superior Court, King County; Boyd J. Tallman, Judge. Action by Frank Beatty against the Metropolitan Building Company. From a judgment of nonsuit, dismissing the action, plaintiff appeals. Reversed and remanded for new trial. Owens & Finck and Reynolds, Ballinger | ly granted, contending (1) that, when the & Hutson, for appellant. Kerr & McCord, elevator boy upon appellant's request promfor respondent. CROW, J. Action by Frank Beatty against the Metropolitan Building Company, a corporation, to recover damages for personal injuries. At the close of plaintiff's evidence the trial judge sustained defendant's motion for a nonsuit and dismissed the 'action. The plaintiff has appealed. ised to operate the car to the upper floors and not to descend below the second floor, he went outside of the scope of his employment in making such agreement; and (2) that in making such arrangement the appellant made the elevator boy his servant for that particular purpose, and in so doing was guilty of contributory negligence. support of its position the respondent cites a number of authorities, but seems to place especial reliance upon Jossaers v. Walker, 14 App. Div. 303, 43 N. Y. Supp. 891, and Hall v. Poole, 94 Md. 171, 50 Atl. 703. In [2] It must be conceded that these cases to a very considerable degree support appellant's contention. In each of them it was In this terfered with or changed the usual method [1] The evidence produced by appellant, which on a motion for nonsuit must be accepted as true, was sufficient to show the following facts: The respondent owned an uncompleted office building in the city of Seattle. The upper floors being completed were rented by respondent to tenants, who occupied the same. The building when fully held that the operator of the elevator, in completed was to be equipped with four pas-effecting an arrangement with the plaintiff senger elevators. For this purpose an ele- for his protection, which to some extent invator shaft divided into four compartments, one for each car, was provided. One completed elevator was installed in the south compartment, and on October 18, 1908, the date of the accident, was being used for carrying passengers to and from the upper floors. An employé of respondent was in charge of and operated this particular car as the elevator boy. In the compartment immediately north of and adjoining this south compartment, a new car was being installed, and appellant, a servant of the contractor who was completing the building, was employed to adjust an iron plate thereto. In performing this work it became necessary for appellant to enter at the first floor the south compartment, in which the completed elevator was running, and remain there about 10 or 15 minutes. Thereupon appellant requested the elevator boy not to descend below the second floor until appellant's work had been completed, telling him it would be necessary for appellant to occupy the shaft at the first floor about 10 or 15 minutes. The elevator boy assented to this arrangement, and agreed not to descend be- There is a marked conflict of authority in low the second floor until notified by appel- cases of this character, and we feel conlant. He then ran the car to an upper floor, strained to approve and adopt the rule anleaving the door of the south compartment nounced in the following cases: Soderstrom open on the first floor, so that appellant v. Patten, 131 Ill. App. 32; Farmers' & might gain admission. Appellant thereupon Mechanics' Ntl. Bank v. Hanks (Tex. Civ. entered the south shaft and proceeded with App.) 128 S. W. 147; Donovan v. Gay, 97 his work. After he had been thus employ-Mo. 440, 11 S. W. 44. These cases are died about a minute or two, the elevator, without warning, descended to the first floor, and seriously injured him. The completed car was in good order, and could be readily stopped within a distance of two or three feet, by the use of a controller or handle in charge of the operator. Appellant contends that the elevator boy, by his negligence and while acting within the scope of his employment, inflicted the injuries of which he now complains. Respondent insists that the nonsuit was proper rectly in point. In Soderstrom v. Patten the facts are almost identical. There a workman employed to repair an elevator shaft effected an arrangement with the elevator boy to move the car up in the shaft and quietly remain there. The elevator, contrary to the agreement, was moved higher up in the building, causing a counterweight to strike and injure the workman. The employer of the elevator boy, as defendant in an action for damages, relied upon the identical cases now cited by respondent. We will quote at some length from the observations of the Illinois court as being especially pertinent here. of the building. Respondent, as owner, knew that the building was not entirely completed; that tenants were nevertheless occupying the upper floors; and that the one finished elevator was being operated for their convenience. It must have known that the presence of various workmen was indispensable to complete the building and install other elevators. The upper floors were leased for respondent's profit. Under these conditions respondent employed the elevator boy to operate the only car then ready for use. Under such circumstances it would be unreasonable to hold that respondent did not anticipate its employé would be compelled to so discharge his duties as not to interfere with appellant and other workmen engaged in completing the building. The evidence indicates that appellant could only do his work by entering this particular shaft and remaining there some 10 or 15 minutes. The authority of the boy was to operate the elevator in a safe and sensible manner, and in harmony with surrounding circumstances and conditions which were ing, who had employed him. Unquestionably it was the duty of the elevator boy to so operate the car as not to injure any workman whose employment might rightfully require him to be temporarily placed in a position of danger. The boy's promise not to come below the second floor was not important, except to show this actual knowledge of appellant's presence in the shaft, and as tending to excuse appellant from the charge of contributory negligence. The court said: "With some minor differences in the facts the authorities cited, and especially the Maryland case [Hall v. Poole] are sufficiently in point to control this case, if we were obliged or disposed to follow them. They seem to hold that, except in the mere matter of actually running the elevator with freight and passengers in it up and down the shaft from story to story, the elevator boy could be guilty of no negligence in the control or handling of it which could be imputed to his employer. We do not agree with the doctrine or reasoning of these cases. The Maryland case leans heavily on the New York Supreme Court case [Jossaers v. Walker], and concerning this latter we agree with Thompson in his Commentaries on the Law of Negligence (2d Ed.) vol. 1, § 528, that it is 'a decision seemingly untenable.' The elevator man was not an automaton, but a reasoning and intelligent being, put in control of the piece of machinery in question, and was therefore im-known to respondent, the owner of the buildpliedly authorized to regulate its motions under extraordinary circumstances and in emergencies, as well as in the ordinary routine. There were not likely to be many of these extraordinary circumstances, it is true, but the rightful presence of a repairer at the bottom of the shaft, whose work would take a few minutes, was such a circumstance. The negligence of the elevator man did not depend on the promise, nor consist in the breaking of it. His negligence was in so running the elevator that it injured a person not a trespasser whom he had reason to know would be likely to be injured by his so running it. The agreement or arrangement is proof that he had notice of the situation. We do not care to discuss the matter more fully. We are not prejudging the case or the facts, nor foreclosing the defendant. But there is no doubt in our mind that the evidence offered for the plaintiff was sufficient to send the case to the jury. Nor is authority lacking for the conclusion to which reason leads us. As inconsistent in principle with the decisions relied on by appellee, and in point as supporting the appellant, we refer to Siegel, Cooper & Co. v. Norton, 209 Ill. 201 [70 N. E 636], in our own state; to Donovan v. Gay, 97 Mo. 440 [11 S. W. 44], in Missouri; and to Stephens v. Chausse, 15 Canada Supreme Court Reports, in Canada. If the position of the appellee in this case were well taken, the negligence of a city bridge tender, who ran his bridge on a repairer, to the latter's injury, would not be imputed to the city. This court held that it could, in Gathman v. City of Chicago, 127 Ill. App. 150." [3] The elevator boy not only knew appellant was in the shaft, but knew that he was rightfully and necessarily there, en The conditions here differ from those in the Maryland case of Hall v. Poole, cited by respondent. There the building was a completed one, in which certain minor repairs became incidentally necessary. Here the respondent leased its upper floors to tenants for its own profit, before its new building had been completed, and while much original constructive work remained to be performed. Respondent knew this necessary work would have to be done by various persons who would be rightfully in and about the building. It is only reasonable to hold that, if for its own profit respondent saw fit to operate the elevator, a dangerous contrivance, before the completion of its building, it became its duty to see that its employé did operate the car in such a manner as not to injure workmen who, in the necessary performance of their duties, might, to the knowledge of the elevator boy, be placed in positions of danger. In view of the circumstances, we are not willing to hold that the elevator boy was acting without the scope of his employment, or that he became appellant's servant, when, upon appellant's request, he promised to hold the car above the first floor until further notice. To so hold would be to announce the doctrine that the respondent could cause this |