In Dauphiny v. Buhne, 153 Cal. 757, 961 advertisement, it is privileged under the proPac. 880, 126 Am. St. Rep. 136, it was held visions of Rem. Code, § 4833. But a reading that a publication was libelous which charg- of this section will disclose that it was not ed that one who was a candidate for re- its purpose to enlarge the liberty of the press election as a councilman, and who had op- but to take from it many privileges which it posed granting a franchise to a railroad had theretofore enjoyed and freely exercised. company, voted for the franchise after say- It deals with the subject of paid advertiseing to the company that if it would purchase ments, and makes it unlawful for a newsgroceries from him, he would vote for it. paper to support or advocate the election or Answering the argument that it was privi- defeat of any candidate at any primary elecleged under the provisions of a section sim- tion for a consideration, provided that the ilar to section 2430, the court said: publisher of a newspaper may, subject to named restrictions, publish any matter, article, or articles, "advocating the election or defeat of any candidate, * ceiving from such person not a candidate a consideration therefor," if it plainly appears that the article is a "paid advertisement." "This privilege must be confined to statements of the truth," and that there is "no privilege of publication under the Code, or general law, which will exempt one from responsibility for falsehood." * The court further said that the "reputation and character" of a candidate for public office "are as much entitled to protection against false accusation when he is a candidate for office as at any other time"; that "his talents and qualifications for the office, his faults or vices, in so far as they may affect his official character may be freely discussed;" that "the public has an interest in knowing the truth about those who occupy or seek public office, but it has no interest in having falsehoods concerning them disseminated." In Wilson v. Sun Publishing Co., 85 Wash. 503, 148 Pac. 774, Ann. Cas. 1917B, 442, the court said: "At common law, of which the statute is merely declaratory, the truth of a libelous charge, though no defense in a criminal prosecution for libel, was usually a complete defense in a civil action for damages." The following cases announce a like view: General Market Co. v. Post-Intelligencer Co., 96 Wash. 575, 165 Pac. 482; Upton v. Hume, 24 Or. 420, 33 Pac. 810, 21 L. R. A. 493, 41 Am. St. Rep. 863. In 17 R. C. L. 355, the rule is thus stated: "Nor as a rule does any privilege attach to the publication of accusations against public officers ** calculated to bring public offi cers into contempt." The object of the privilege accorded to published comments upon public officers or those seeking public office is to inform the electorate of the fitness or unfitness of those falling within either class. To permit the publication of a falsehood concerning a candidate for office which either charges him with the commission of a crime or with be ing morally depraved would be subversive of the very purpose from which the privilege springs. The press is allowed a large liberty in commenting upon the character and fitness of a candidate for public office. This liberty, however, does not give it free license to promulgate falsehoods. * and re Aside from the question of privilege, there is nothing in the statute (section 4833) which permits the discussion of the merits or demerits of a candidate for office under the caption of a “paid advertisement" that in any way counteracts the virility of the law to protect a man in his good name or fame. If in the heat of partisan politics a libel is published, those who give it currency must still justify or excuse. The fact that the libel is third party makes no exemption in favor of published in a newspaper and paid for by a the press for as said in Riley v. Lee, 88 Ky. 603, 11 S. W. 713, 21 Am. St. Rep. 358: As "The press is under the same restraints. said, the gravamen of libel consists in its publication. If it be said the conductors of newspapers may publish, as an advertisement, what has been written by others, the answer is that the conductors of the paper are presumed to know that the writing is an attack upon the character and reputation of another, which no one has the right to make unless the truth of charge actually exists, and its publication in the newspaper not only gives the charge a more extended circulation but gives it a permanent lodgment in the memory of the living, and it may be reproduced when all else concerning the allel: If the citizen, for wages, should proclaim person has been forgotten. Continuing the parand read a libelous writing from the street corners, would the fact that he merely did it as a matter of business protect him? The answer a citizen is too sacred to be let out on contract. is, No; for the reason that the good name of So the answer to the conductors of the paper is that the advertisement proclaimed the defamais not a subject of lawful advertisement, contion of a person's character, which, unless true, sequently they must answer in damages. Also, in reference to publishing such writing, without malice, as a matter of news, for the same reasons the answer comes back that it is not lawful to bruit, thither and yon, defamation of a person's character merely to gratify a morbid appetite for such scandal; that nothing short of the truth of the matter published will be heard in justification of the unwarranted liberties thus taken with a person's good name. But it is said that it would be a harsh rule to require conductors of newspapers to be responsible for the truth of the information that they furnish the public. The answer is that the press must not be the vehicle of attacks upon the character and reputation of a person unless the attack is known to be true; if it is not known to be true, do not publish it; the publication can seldom, if ever, do good, and the indulgence in [4] It is next asserted that, being a paid publications of the sort, not strictly true, would [3] The article upon its face is not privileged. Whether it is privileged presents a mixed question of law and fact. The respondents may, if they can, justify or excuse the publication under the provisions of Rem. Code, § 2425, and not otherwise. soon deprave the moral taste of society and ren-court of law or equity until after full complider it miserable." ance by the insured with all the foregoing requirements. ** * * (Italics ours.) The complaint states a cause of action for compensatory damages. At the request of the insurance company Mrs. Barbour appeared before a notary pub ELLIS, C. J., and MOUNT, and HOLCOMB, lic, and was examined under oath by the JJ., concur. Where insured appeared before notary public and submitted to examination under oath, failure to sign the statements then made did not show noncompliance with clause of policy requiring insured to submit to examinations under oath. 2. INSURANCE 612(2)—FIRE POLICIES-EXAMINATION UNDER OATH. Where insured on insurer's request submitted to examination under oath which was filed in the suit, though she did not sign the original copy until after the action had been commenced, she complied with the policy, providing that no suit should be "sustainable" until full compliance with requirement that insured submit to examination under oath. 233 CANCELLATION OF Where insured, intending to secure a specified amount of insurance, discovered that double the intended amount had been secured, and sought cancellation, which the company agreed to permit on insured's signing a receipt, but the receipt was never signed, the policy remained in full force and effect. Department 2. Appeal from Superior Court, Snohomish County; Guy C. Alston, Judge. Action by Theron T. Barbour and wife against the St. Paul Fire & Marine Insurance Company. Judgment for plaintiffs on directed verdict, and defendant appeals. Affirmed. H. T. Granger, of Seattle, for appellant. J. W. Russell, of Seattle, for respondents. CHADWICK, J. This is an action on a policy of insurance brought by Theron T. Barbour and Mary Barbour, his wife, against the St. Paul Fire & Marine Insurance Company. At the close of the evidence, the trial judge instructed the jury to return a verdict in favor of the plaintiffs. The defendant insurance company has appealed. Appellant contends: (1) That plaintiffs did not comply with the provisions of the policy requiring the insured, if requested by the company, to submit to an examination under oath, and subscribe the same, which is made a condition precedent to sustaining an action on the policy; (2) that the policy was cancel. ed by mutual consent prior to the time the loss occurred. The policy provided: * "The insured, as often as required, shall * * submit to examinations under oath by any person named by this company, and sub scribe the same." "No suit or action on this policy for the recovery of any claim, shall be sustainable in any attorney for appellant. She was given a carbon copy of her testimony to correct before signing. She did not sign the original copy of the examination until after the present action had been commenced; the exami nation being introduced in evidence by appellant. [1] When Mrs. Barbour appeared before the notary public and submitted to an examination under oath, there was a substantial compliance with this provision of the policy. The insurance company had obtained the information which it was designed to secure. The signing of the written result of the examination was a purely incidental matter. [2] But, even if this were not so, when we look to the words of the policy, which it is well settled must be strictly construed against the insurance company, we do not find that it provides that no action shall be "commenced," but that no action shall be "sustainable." At the time plaintiffs sought to sustain their action by proofs, the examination had been signed and was in the hands of the defendant. All that the policy required had been performed. To decide whether or not the policy was canceled by mutual consent prior to the time of the loss requires a discussion of the facts. The plaintiffs were the owners of a house and lot in Edmonds, Wash. The house and its contents were insured in the Orient Insurance Company for $1,900. The property was mortgaged; and the policy, which was payable to the mortgagee as its interest might appear, was in the possession of the mortgagee. In August, 1915, about the time the policy was due to expire, Mr. Barbour called on the insurance agent, Rudolph Damus, in Seattle, through whom he had obtained the insurance, and told him that he wanted it renewed without, however, specifying any particular company. Mr. Damus told him that he would attend to the matter. Damus, who was not the agent of the defendant company, and in this instance was acting as a broker, ordered the insurance from the defendant's local agent. The policy was issued and delivered to Damus, or his office, but never reached the plaintiffs, probably, as the record suggests, being lost in the mail. About the 1st of the following September, Mr. Barbour received a statement of his account from the mortgagee, which statement included an item of $22.80 for an insurance premium. He testifies that he supposed this was the premium on the policy he had ordered through Damus. In July, 1916, nearly a year later, while Mr. Barbour was in British Columbia, Mrs. Barbour receiv ed a notice from Damus to the effect that defendant refusing to do so, this suit was $22.80 was due him as a premium on insur-instituted. ance. She immediately investigated, and [3] It is clear, as appellant contends, that found that the policy secured by Damus was the plaintiffs never intended to carry more not the one covered by the statement sent than $1,900 worth of insurance; and if they by the mortgagee, and that the mortgagee are permitted to recover in this action, they had secured insurance in the same amount, $1,900, on the property in the Continental Insurance Company. She took the matter up with Mr. Damus; and he advised her that one policy would have to be canceled, and suggested that it had better be the policy last issued. This was ascertained to be the policy on which this suit is brought. She then told Damus that "theirs (the policy secured by the mortgagee) was first, and we would have to cancel the other one." Damus then took the matter up with the local agent of the defendant, and, according to the testimony of the agent, the following is what took place: will reap where they did not intend to sow. "He came down to the office, and told me that they had other insurance on there. I asked him what company it was, and he said, "Why, the Continental was on.' I said, 'Well, that is funny,' and he said, 'What are you going to do?' He told me the premium had not been paid. I said, "The only way to do, then, is to make out a receipt for the earned premium and get it and have the company sign it,' and I was pretty busy at the time, and he said, 'You wait a while, and I will bring it up to you.' He said, "They are up there in the office now,' and I said, 'All right; if that is the case, I will get rid of it right now.' and I went and figured out the earned premium on the receipt, and Mr. Damus was sitting right by the side of the desk when that was made, and I said, "There it is now; you can go right up and have your SOUND CREDITS CO. v. POWERS et ux. party sign it up.'" The receipt was in the following form: "Lost Policy Receipt. "St. Paul Fire & Marine Insurance Company of St. Paul. "Release for Lost Policy. "In consideration of 14.25 dollars, the receipt of which is hereby acknowledged we surrender, release and relinquish all our right, title and interest in policy No. 356869 (renewal No. .....), of the St. Paul Fire & Marine Insurance Company of St. Paul, Minn., issued at its Seattle Wash. Agency, and all advantages to be derived therefrom, and the said policy having been lost or mislaid, we agree to make no claim whatever for any loss or damage for which said company might become liable under said policy, and to return the said policy and renewal (if found) to the said company forthwith, and without further compensation. We hereby certify that said policy has not been assigned or transferred. "Witness: 66 "If this policy is payable in case of loss, this receipt must be signed by assured, mortgagee or other parties in interest." When Damus presented this receipt to Mrs. Barbour for her signature, she refused to sign it, and nothing further was done about the matter until after the loss occur red. Plaintiffs made claims against both the Continental Insurance Company and the defendant. The Continental settled; and the ELLIS, C. J., and MOUNT, MAIN, and HOLCOMB, JJ., concur. (No. 14399.) (100 Wash. 668) Where the record shows that the hearing on motion for default was continued through the efforts of defendants' counsel, they cannot claim they had no notice that the motion would bo heard on the day fixed. APPEAL 2. APPEAL AND ERROR 935(2) Where it does not affirmatively appear that In an action against husband and wife, an answer pleading the discharge of the husband in bankruptcy held a good defense, both as to him and as to the community property. 4. JUDGMENT HEARD. 98-DEFAULT-RIGHT TO BE The striking of answer and entry of judgment by default against both husband and wife because of husband's failure to answer interrogatories propounded where none have been propounded to the wife was error; the wife having a right of defense before entry of judgment against the community. Department 2. Appeal from Superior Court, King County; Kenneth Mackintosh, Judge. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Action by the Sound Credits Company | and had joined with him in answering. The against C. C. Powers and wife. Judgment answer pleaded a discharge of appellant C. C. Powers in bankruptcy, and was a good defense not only as to him but as to the community. for plaintiff, and defendants appeal. Affirmed in part and reversed in part. Ray R. Greenwood and Wright, Kelleher ́ & Allen, of Seattle, for appellants. Robert F. Sandall, of Seattle, for respondent. "When the husband was discharged in bankruptcy from the obligation of the contract, it must of necessity follow that the wife was also discharged because her separate property is not subject to the community debt." Bimrose v. Matthews, 78 Wash. 32, 138 Pac. 319. CHADWICK, J. This is an appeal from an order of default and judgment entered [4] No interrogatories had been propoundagainst appellants for failure to answer in-ed to the defendant wife, and she was not in terrogatories, and from an order denying ap- default. She had a right to be heard in suppellants' motion to vacate the order of de- port of her defense before a judgment against fault and judgment. the community could be entered. [1] Appellants contend that they were not given notice that the motion for default was to be heard, and therefore that the court committed error in entering the judgment. The case is brought here without a state ment of facts. The only record before us is a transcript showing part of the papers filed in the superior court. From this fragmentary record we are able to glean, however, that the motion for default was served on counsel for appellants; that they were served with a notice that the motion would be brought on for hearing on February 17, 1917; that on February 23, 1917, at the behest of defendants an order for a stay of proceedings until March 2, 1917, was entered. It appears from the journal entries that at the same time the stay order was entered the motion for default was continued until March 2, 1917, on which date the motion for default was granted. This being true, under the present state of the record we are bound to assume, and it seems altogether reasonable, that on February 23, 1917, the motion for default was continued to March 2, 1917, through the efforts of counsel for defendants. If this be true and we cannot say it is not-they had notice that the motion would be heard on that date. [2] Counsel for appellants have brought up as a part of the transcript what purports to be copies of affidavits filed in the superior court in support of their motion to vacate the default and to set aside the judgment. It has been held that, where it does not affirmatively appear that the affidavits contained in the transcript were the only affidavits considered by the lower court, or that there was not other evidence submitted to the court, and it does not so appear here, they will not be considered. International Dev. Co. v. Sanger, 75 Wash. 546, 135 Pac. 28; Beall & Co. v. O'Connor, 78 Wash. 651, 139 Pac. 605; Mattson v. Eureka Lbr. Co., 79 Wash. 266, 140 Pac. 377; Thurman v. Kildall, SO Wash. 266, 141 Pac. 691; State v. Clay (No. 14603) 171 Pac. 241. [3] It does appear, however, that the lower court erred in entering judgment against the community composed of both appellants. Appellant Gertrude I. Powers had entered her appearance jointly with her husband, appeal ineffectual unless at or before giving noUnder Rem. Code 1915, § 1721, making an tice of appeal or within five days thereafter an appeal bond be filed, an appeal was not ineffectual because the bond was filed 83 days before notice of appeal was served. 2. APPEAL AND ERROR 639(1)-DISMISSAL -GROUNDS-INSUFFICIENT ABSTRACT. The fact that the abstract of record fails to comply with court rules is not a ground for dismissal of an appeal in the first instance, since under Rem. Code 1915, § 1730-6, opportunity to amend or supplement an insufficient abstract must be given. 3. APPEAL AND Error 655(4)—DISMISSAL— GROUNDS-INSUFFICIENT ABSTRACT. The abstract of record will not be stricken because the title page does not disclose the court and the judge nor the names and addresses of the attorneys, nor because the pleadings are set out in full, nor because only portions of the evidence and none of the instructions were included, since the title page is capable of amendment and literal copies of pleadings may be used if deemed essential, and only those matters deemed necessary to disclose the errors need be set out in the abstract. 4. APPEAL AND ERROR 1002-REVIEWVERDICT. Where the evidence on all questions was conflicting and the case was submitted to the jury under proper instructions, no error can be predicated on the sufficiency of the evidence to sustain the verdict. 5. EVIDENCE 123(11), 272-ADMISSIBILITY RES GESTE DECLARATION AGAINST INTEREST. In action for injuries in collision with automobile driven by defendant's employé, who has since left the state, declarations of such employé in reporting the accident to the police department, showing that he had violated traffic rules, were not admissible as res gestæ nor as declarations against interest by a party to the action. 6. WITNESSES 390-IMPEACHMENT. The statute requiring an appeal bond, it will In action for injuries in collision with auto-be noticed, permits it to be filed before the mobile, where a passenger in the car testified that the driver in reporting accident said he did not cut the corner, declarations of the driver in reporting the accident to the police, to the effect that he did cut the corner, were not admissible for impeachment of the passenger. 7. WITNESSES 383-IMPEACHMENT. time when the notice of appeal is given or served, and contains no limitation upon the extent of such antecedent period of time. Laurendeau v. Fugelli, 16 Wash, 367, 47 Pac. 759, is cited by respondent in support of his contention that the filing of the bond was premature, but it will be noted that our hold Such declarations should have been excluded upon the further ground that the examination was as to a collateral matter, since a witness may not be impeached upon a matter col-ing in that case is based on the fact that the lateral to his proper examination. Department 1. Appeal from Superior Court, King County; Mitchell Gilliam, Judge. Action by Louis Singer, an infant, by Fannie Singer, his guardian ad litem, against the Metz Company. Judgment for plaintiff, and defendant appeals. Reversed, with directions. J. Speed Smith and Henry Elliott, Jr., both of Seattle, for appellant. Leopold M. Stern and J. W. Russell, both of Seattle, for re spondent. FULLERTON, J. The respondent, Louis Singer, was riding a motorcycle, proceeding north on one of the streets of the city of Seattle, and an employé of the appellant was driving an automobile south on the same street, each on the proper side of the street under the law of the road. The driver of the automobile turned to the left, crossing the course of the motorcycle at an intersecting street, which the two vehicles approached from opposite directions at about the same time. A collision occurred, in which the respondent was seriously injured. The respondent brought the present action for dam ages, based on the alleged negligence of the driver of the automobile in failing to conform to the city ordinance, requiring that vehicles turning from one street into another should make the turn around the center of the intersecting streets; the charge being that the driver "cut the corner of the street," or, in other words, made a turn short of the center of the intersection, instead of rounding that point. This was denied by the appellant, and the defense of contributory negligence set up. On submission to a jury a verdict was returned, awarding the respondent $2,500 damages, and from the judgment thereon this appeal is prosecuted. appeal bond was filed prior to entry of judgment, as well as prior to the notice of appeal. Under the statute then in force (Laws 1891, P. 342, § 6), the bond was required to be filed within five days after notice of appeal. [2] The respondent also urges as a ground for the dismissal of the appeal that the appellant's abstract of the record fails to comply with the statutes and rules of court. But this is not a ground for the dismissal of an appeal in the first instance. Under section 1730-6 of the Code (Rem.) the appellant must be given an opportunity to amend or supplement the abstract if it is found deficient, and the abstract stricken only after the opportunity is given and a refusal is made to supplement or amend. No order of the court for amendment of the abstract having been made, the motion for dismissal on the ground of its insufficiency is not well founded. abstract of record on the grounds that the The title The rule are in substance, but permits literal copies if the litigant deem them essential to show error. As to omissions of evidence and instructions, the statute and rules of court require the incorporation of such matters only as deemed necessary to show the errors involved. Provision is made for the filing of a supplemental abstract by opposing counsel covering matters omitted and deemed essen[1] A motion to dismiss the appeal is made tial to correct or supplement the original abby the respondent on the ground that it is in-stract, and ordinarily this is the sole remedy. effectual because the appeal bond was filed some 83 days before the notice of appeal was served. Our statute provides that: "An appeal in a civil action or proceeding shall become ineffectual for any purpose unless at or before the time when the notice of appeal is given or served, or within five days thereafter, an appeal bond to the adverse party be filed with the clerk of the superior court." Rem. Code, § 1721. It appears that the notice of appeal was regularly given within the statutory time. But aside from this, ample remedies are provided for amending insufficient abstracts other than the striking them from the record on appeal, and they will not be stricken until these remedies are resorted to without success. The motions are denied. [4] The appellant first asserts that it was entitled to a directed verdict, both at the close of respondent's evidence and at the conclusion of all the evidence, and to judgment notwithstanding verdict, on the grounds that For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |