a third party contributed to the injury, although the latter acted independently of the carrier." It is insisted that this is wrong, on the ground that there was no negligence shown on the part of the defendant, but as, in our opinion, there was proof tending to show such negligence, the instruction was a proper one. The most urgent contention on the part of appellant is, however, that the court erred in refusing to give instruction No. 15 requested by it, which was as follows: "If you believe from the evidence in this case that at the time said steamer Rosalie landed at said Arlington Dock, that she properly cast out her lines, and they were properly fastened on the shore, and the court instructs you that it means by being properly fastened that she was fastened in the manner ordinarily fastened by said steamers,-and that at about the time of the alleged accident another vessel put in alongside said steamer, and fastened her lines to said Rosalie, and thereby drew said steamer Rosalie by force away from the dock and wharf, thereby allowing the gang plank to fall, and thereby injuring the plaintiff herein, then you are instructed that it was not the fault of the defendant herein, but the fault of the steamer fastening to and pulling said Rosalie away from the wharf. You are further instructed that if there was a reasonable opportunity for one other than the servants and employés of the defendant company herein to move said gang plank, and to place said steamer in an unsafe, careless, and negligent position, or to place said gang plank in that position, then you will find for the defendant. The defendant company, the court instructs you, is not liable for the acts or carelessness of persons other than its servants or employés, and, in order to charge the defendant herein, it must prove by a preponderance of the evidence that said gang plank was put out and maintained, as well as the lines to said vessel, by the officers, servants, or employés of the defendant company herein, and not by some other or third person not in its employ." We are of the opinion that the first part of this instruction, which was upon the theory that the defendant was not negligent, and that the injury was caused by the steamer Thompson in forcibly pulling the Rosalie away from the wharf, so that the gang plank fell while the plaintiff was upon it, was a proper one, based upon testimony introduced by the defendant, and should have been given had it been submitted as a separate instruction. There was testimony to show that it was a common thing for one steamer to come up alongside of and tie to another steamer lying next a wharf, and that the same could be done safely and without danger under the exercise of ordinary care. Consequently there was no negligence on the part of the Rosalie in allowing the Thompson to make fast to her. But if in so doing the steamer Thompson was carelessly and improperly handled, so that she pulled the Rosa lle away from the wharf, and caused the plank to fall at the time the plaintiff was upon it, the Rosalie up to that time having been properly moored and secured to the wharf, and the gang plank properly fastened, so that the defendant was not negligent, clearly there should be no recovery against the defendant, but against the owners of the other steamer negligently causing the injury. Counsel for the plaintiff maintains that there was no error in refusing to give this instruction for several reasons, the first of which is that the court instructed the jury that the plaintiff could not recover unless the defendant was negligent, and the court did so instruct the jury several times in about those words. But we think the defendant was entitled to a more specific instruction to fit the particular facts claimed by the defendant, there being proof to support it, where a request is made because the jury might have inferred that the defendant was negligent in allowing the other steamer to tie to the Rosalie at all, but this clearly could not be so under the proofs in the case. Another reason given is that the latter part of the instruction, to the effect that there could be no recovery against the defendant if there was a reasonable opportunity for one other than the employés of the defendant to move said gang plank and place the steamer in an unsafe position after she had properly landed and the plank had been secured, was not a correct statement of the law; and we think this is true, because it was not only the duty of the defendant to see that the steamer was properly secured to the wharf, and the gang plank placed from the wharf to the steamer and secured as well, but that it was its duty to exercise due care in maintaining it so, and the latter part of the instruction eliminated this feature. There was some testimony going to show that the defendant was negligent in this particular. It is not error to refuse to give an instruction which is partly erroneous; and while this one embraced two different subjects, that might well have been submitted as separate Instructions, the defendant saw fit to submit it as one, numbered the fifteenth. Consequently error cannot be predicated upon the refusal of the court to give any part of it. In the absence of a request for a specific instruction with reference to the particular facts, those given by the court were sufficient, and in other respects the instructions properly covered the Affirmed. case. ANDERS and REAVIS, JJ., concur. GORDON, J. I did not sit at the hearing. DUNBAR, J. I concur in the result, but not for the reasons assigned. I think the instructions complained of stated the law, and that those asked for by appellant, which had not already in substance been given by the court, did not state the law. RUSSELL & CO. v. MILLETT et al. (Supreme Court of Washington. Nov. 22, 1898.) SERVICE OF PROCESS-WAIVER-GARNISHMENT- 1. Where a pri e individual had served a writ on the sheriff, and requested acceptance of service in writing, which was denied, and took the precaution, at the sheriff's suggestion, to obtain another service by the coroner, it was not a waiver of the service previously made. 2. Code 1881, § 2776, as amended by Acts 1897, p. 21, after providing that the coroner shall perform the sheriff's duties where he is interested or incapacitated, adds a proviso that it shall not prevent the court from appointing a suitable person to discharge the duties provided by Code 1881, § 745, which provides, inter alia, that when there is no sheriff, or he is disqualified from discharging any duty, the officer or person desiring the duty discharged may appoint some suitable citizen of the county to execute the same, except that, in cases of final process, the court or judge shall appoint. der the general provisions relating to service, writs may be served, when not otherwise specially provided, by any disinterested person, and proof of service made by affidavit of the person making it, and writs of garnishment are to be served as summonses are served. Held, a writ of garnishment may be served by a private, disinterested individual on the sheriff. Un 3. A receiver is liable to garnishment for the funds in his hands where the case in which he was appointed has been settled or dismissed. Appeal from superior court, Skagit county; J. P. Houser, Judge. Action by Russell & Co., a corporation, against the Metcalf Shingle Company and others. Judgment was rendered in favor of J. P. Millett, as garnishee, and plaintiffs appeal. Reversed. James Wickersham, for appellants. E. C. Million, for respondents. DUNBAR, J. A suit had been begun by Russell & Co., the appellants herein, against the Metcalf Shingle Company, in the superior court of Skagit county. On the 24th day of November, 1897, a writ of garnishment was issued out of the clerk's office, directed to the defendant (one of the respondents here) J. P. Millett. The writ was delivered to one Callahan, who was appointed by Russell & Co. to serve the same, Callahan being a competent person to serve said writ if it could be served by a private individual. At the hour of 1:30 p. m. on that day, Callahan delivered the original writ and a copy to Millett, and requested him to write an acceptance of service of the original. Millett did not accept the service in writing, but kept the papers for some time, and, after returning them, said to Callahan that he would not accept service in writing, but suggested that Callahan get the service made by the coroner. At Millett's request, Callahan took the original and copy from Millett, and procured the coroner to make a service at 8:30 that evening. Before the last service was made, the money had been paid over to a Mr. Waugh, agent of the Metcalf Shingle Company. It appears that, at the time of the service by Callahan, the defendant Millett had the sum of $400.20 in his hands, the property of the Metcalf Shingle Company; but, after requesting Callahan to procure the coroner to make service, he drew a check to Waugh, and gave it to him, and answered in the case tha he did not have the money at 8:30, when the second service was made by the coroner. Judgment was rendered against the plaintiff in the garnishment proceedings, from which judgment the appeal is to this court. Outside of the question of fact as to whether there was an actual service made or intended to be made by Callahan at 1:30, there are two legal propositions urged by the respondent, to the effect-First, that no service could be made upon Millett, he being a sheriff of the county, excepting by the coroner, and that, therefore, if service was intended to have been made by Callahan, the service would be void; and, second, that Millett, having been a receiver of the court, and having this money in his possession as such receiver, could not be garnished. From a reading of the statement of facts, we are satisfied that it was the intention of Callahan to serve this writ of garnishment. From the fact that he requested Millett to accept service of the writ in writing, it cannot be inferred that he did not intend to make service of the writ. He might intend to do this, and also be anxious to have the service accepted, for various reasons; and the fact that, out of an abundance of caution, at the suggestion of Millett, he obtained another service by the coroner, does not prove or indicate that he waived the service which he had before made; so that it becomes necessary to determine the question whether or not Callahan was a proper person to make service of the writ. We think, under the statutes as they now exist, that he was. It is true that section 2776 of the Code of 1881 provides that the coroner shall perform the duties of the sheriff in all cases where the sheriff is interested or otherwise incapacitated from serving, but the amendment to the aforesaid section made by the legislature of 1897, on page 21 of the Laws of that year, after providing as above, has a proviso to the effect that "nothing herein contained shall prevent the court from appointing a suitable person to discharge such duties, as provided by section 745 of the Code of 1881." Section 745 of the Code of 1881 is section 796 of 2 Hill's Code, which provides, among other things, that "when there is no sheriff of a county, or he is disqualified from any cause from discharging any particular duty, it shall be lawful for the officer or person commanding or desiring the discharge of that duty to appoint some suitable person, a citizen of the county, to execute the same: provided, that final process shall in no case be executed by any other person than the legally authorized officer; or in case he is disqualified, some suitable person appointed by the court, or judge thereof," etc. It seems to us that this section plainly warrants the service of this writ by any person who is otherwise qualified who may be appointed by the person commanding or desiring the writ. Under the general provisions in relation to the service, writs may be served, when not otherwise specially provided, by any disinterested person. The statutes provide in such cases that proof should be made by the affidavit of the person making service, and the law provides that writs of garnishment shall be served as summonses are served. In addition to these statutes, it is the holding of the courts generally to construe these statutes liberally. In referring to service on corporations, it is said in 22 Am. & Eng. Enc. Law, p. 118, that, "since the object of such statutes is merely to carry out the principle that no proceeding may be had against the defendant until due notice has been given him, a service which virtually accomplishes this object will not be held invalid if the statute is capable of a double construction." And many cases are cited to sustain this theory, and notably the case of Pope v. Manufacturing Co., 87 N. Y. 137, where it was said that "the object of all service of process for the commencement of a suit or other legal proceeding is to give notice to the party proceeded against; and any service which reasonably accomplishes that end answers the requirements of natural justice and fundamental law." The same reasening will apply to service of process on individuals. The second question is more serious, viz. whether or not the receiver in this case could be garnished. It is the general rule that, in the absence of statutory enactment, property which is in custodia legis is not subject to attachment or garnishment, and that courts will not allow funds over which they have control, and which are to be applied as future investigations may indicate, to be dissipated or in any manner interfered with. Our statutes, however, provide, in section 5367, 2 Pallinger's Ann. Codes & St. (section 306, 2 Hill's Code), that the sheriff or constabie may be garnished for money of the defendant in his hands; and section 5368 (section 307) provides for attachment of moneys in court as follows: "When the property to be attached is a fund in court, the execution of a writ of attachment shall be by leaving with the clerk of the court [a copy] thereof, with notice in writing specifying the fund." And while there is no statute which has been called to our attention which specifically permits the garnishment of a receiver, or funds in the hands of a receiver, it would seem that no distinction in reason could be made between garnishing the officers and funds mentioned in the statute and the funds in the hands of a receiver. But, without passing specifically upon that question, so far as statutory enactments are concerned, the great weight of authority seems to be to the effect that receivers and similar officers will be liable to garnishment where the case in which their appointment has been made has been settled, or where they have a fund in their hands over and above the amount necessary to satisfy the judgment. Thus, the rule is laid down in 2 Wade, Attachm. § 421, after affirming the doctrine of exemption from garnishment in respect to money or property in legal custody, that "where there is a surplus after satisfying the judgment, in the hands of the officer, to which the execution defendant will be entitled, it is held, in most of the states where the question has been raised, that this should not be regarded as in the custody of the law, and hence can be reached by garnishment by other creditors while still in the officer's possession"; citing Tucker v. Atkinson, 1 Humph. 300, 34 Am. Dec. 650, and many other cases. In this case It appears that before the receiver had been. served with this garnishment, on the 8th day of November, the court had dismissed the same, at the cost of the lienors, and that the order which had been made upon the receiver was revoked and annulled, and the receiver was authorized to turn over to Waugh all shingles covered by those liens which were in his possession, or moneys, bills of lading, or other securities representing said shingles; so that in this instance it seems to us that the rule which we have just announced above: would apply, and that it would in no wise interfere with the jurisdiction of the court, which appointed the receiver, over the moneys in controversy. It has been decided in Maryland that money held by a trustee appointed by a decree of the court of chancery could be attached where the final audit had been certified by the court, and the amount belonging to the debtor ascertained, and an order passed directing the trustee to pay it over. Williams v. Jones, 38 Md. 555; Cockey v. Leister, 12 Md. 124. And 8 Am. & Eng. Enc. Law, p. 1146, after citing Field v. Jones, 11 Ga. 413, and other cases wherein the general rule above announced was sustained, says in the footnote: "The rule would probably be otherwise if the receiver had been garnished after order of court to redeliver the fund or property,"-and cites, also, People v. Brooks, 40 Mich. 333, and Willard v. Decatur, 59 N. H. 137. So, where money is paid into the hands of a clerk by the decree of the court for a specific performance, and the performance of the custodian is accomplished, and his only duty is to pay it over to a certain party, he may be charged as garnishee of that party. Wilbur v. Flannery, 60 Vt. 581, 15 Atl. 203. And as far as we have been able to ascertain, in all cases where the fund held by the officer, whether as sheriff or receiver or clerk, was in a condition similar to the funds held by the receiver in this case, it has been held that they were subject to attachment or garnishment. The judg ment will therefore be reversed, and the cause remanded, with instructions to proceed in accordance with this opinion. SCOTT, C. J., and GORDON, ANDERS, and REAVIS, JJ., concur. BEACH v. BROWN. (Supreme Court of Washington. Nov. 29, 1898.) ALIENATING HUSBAND'S AFFECTIONS-ACTION BY WIFE-EFFECT OF DIVORCE-EVIDENCE-SELFSERVING DECLARATIONS-PRESUMPTIONS. 1.1 Hill's Code, §§ 1408, 1409, providing that every married person shall hereafter have the same right to sue and be sued as if he or she were unmarried, and that all laws which impose civil disabilities upon the wife which are not imposed on the husband are abolished, and that she shall have the same right to sue in her own name for an unjust usurpation of her rights that the husband has, entitle a wife to bring an action for alienation of her husband's affections without his joining. 2. A wife whose husband's affections have been wrongfully alienated does not lose her right to an action therefor by obtaining a divorce from him. 3. Letters written by a husband to his wife during coverture, evincing an affection towards her, are admissible to prove the same, in an action for alienating it. 4. Testimony of what the husband said as to his object in writing the letters is inadmissible, as being self-serving. 5. A husband living and cohabiting with his wife, they having children, is presumed to have an affection for her, until such presumption is overthrown by preponderating evidence to the contrary. Appeal from superior court, King county; O. Jacobs, Judge. Action by Annie E. Beach against Abbie D. Brown. There was a judgment for plaintiff, and defendant appeals. Affirmed. John E. Humphries, W. E. Humphrey, and E. P. Edsen, for appellant. Lindsay, King & Turner, for respondent. DUNBAR, J. This is an action by the respondent against the appellant for damages for alienating the affections of respondent's husband. A demurrer was interposed to the complaint, to the effect that it did not state facts sufficient to constitute a cause of action, which was overruled. A motion for a nonsuit was also made and overruled. Upon the trial of the cause a verdict was rendered in favor of the respondent, judgment was entered in accordance therewith, and an appeal was taken to this court. It is the contention of the appellant, in the first instance, that this action cannot be maintained, for the reason that a married woman in the state of Washington cannot maintain a suit in her own name for tort without her husband joining her, where the damages secured would be community property. This statement assumes somewhat the legal questions at issue. But on the main proposition, as to whether a married woman can maintain this action for the loss of the con sortium of her husband, the authorities are somewhat conflicting. In Duffies v. Duffies (Wis.) 45 N. W. 522, a case which was strongly relied upon by the appellant, it was decided by a divided court that she could not, but we are not impressed with the reasoning upon which that decision is based. It is conceded that at the common law the husband might maintain an action for the alienation of the affections of a wife, but it is said that the wife's right to the society of the husband is different in degree and value, and, in a long opinion, the court undertakes to substantiate this proposition. The reasons given are too numerous to set forth in this opinion, but we think they are unsatisfactory and illogical. The decision is also based upon the fact that at the common law the wife had no property in the consortium of her husband, and that her position as a wife precluded her from bringing the action. An attempt is made in this case to distinguish the cases that hold that the wife at common law had a right to bring this action, but we think the attempt was unsuccessful, and there are other cases maintaining the same view. However, the case of Williams v. Williams (Colo. Sup.) 37 Pac. 614, squarely decides the proposition the other way, and shows that the doctrine is really based upon the ancient idea of the comparative inferiority of the wife. The court in that case said: "Mr. Justice Blackstone, who wrote 150 years ago, gave as a reason for denying the wife's right of action in cases of this kind the following: The inferior hath no kind of property in the company, care, or assistance of the superior, as the superior is held to have in those of the inferior, and therefore the inferior can suffer no loss or injury.' 3 Bl. Comm. 142. This language seems strange in the present age, however familiar it may have been during the last century." And the court then quotes Warren v. Warren, 89 Mich. 127, 50 N. W. 844, where it is said: "The wife is entitled to the society, protection, and support of her husband as certainly, under the law and by moral right, as he is to her society and services in his household." Foot v. Card, 58 Conn. 1, 18 Atl. 1027, is also quoted, where the court said: "So far forth as the husband is concerned, from time immemorial the law has regarded his right to the conjugal affection and society of his wife as a valuable property, and has compelled the man who has injured it to make compensation. Whatever inequalities of right as to property may result from the marriage contract, husband and wife are equal in rights in one respect, namely, each owes to the other the fullest possible measure of conjugal affection and society. The husband owes to the wife all that the wife owes to him. Upon principle, this right in the wife is equally valuable to her, as property, as is that of the husband to him. Her right being the same as his in kind, degree, and value, there would seem to be no valid reason why the law should deny to her the redress which it affords to him." This reasoning, it seems to us, is more in conformity with modern thought on the subject of the marital relations existing between husband and wife. See, also, Bennett v. Bennett, 116 N. Y. 584, 23 N. E. 17; Van Arnam v. Ayers, 67 Barb. 544; Haynes v. Nowlin, 129 Ind. 581, 29 N. E. 389; Lynch v. Knight, 9 H. L. Cas. 577; Westlake v. Westlake, 34 Ohio St. 621. But, however it may have been at the common law, the trend of judicial opinion in this country has been in favor of extending rights of this kind to the wife, and it seems to us that the right is placed beyond a peradventure by our own statutes. We do not think that the cases decided by this court which are cited by the appellant bear upon this question. The legislature of this state has, from time to time, plainly sought to remove disabilities of this character from married women, and section 1408, 1 Hill's Code, provides that "every married person shall hereafter have the same right and liberty to acquire, hold, enjoy, and dispose of every spe cies of property, and to sue and be sued as if he or she were unmarried." It would seem as if this statute was very nearly conclusive of this question, but, if not, section 1409 makes it absolutely so. That section provides that "all laws which impose or recognize civil disabilities upon a wife, which are not imposed or recognized as existing as to the 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 courts of law or equity for redress and protection that the husband has"; and it will be observed that all the exception that there is to this sweeping law is made in a proviso to section 1409, to this effect: "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." And an investigation of the statutes in relation to the rights of married women shows that in all cases where exceptions are intended they are provided in the statutes. These statutes also do away with the necessity which existed under the common law, as held by some of the courts where the right was sustained, that the action could only be maintained when the husband joined in it. But the action in this case was brought by the respondent after she had obtained a divorce from her husband, and it is therefore urged by the appellant that, if she ever had the right to bring this action, it was lost when she sought and obtained a divorce; that all rights were settled by the decree of divorce; and cases from this court are cited to sustain that contention. But we do not think that the cases cited or the law bear upon this character of rights. It could not, in the very nature of things, have been contemplated in the divorce decree. It is a damage which is peculiar to the wife, which the husband, under no rule of right, could have any interest in; and it would be a harsh rule of law that, conceding that the wife had this right during coverture, would deprive her of the right when the wrongful acts of which she complains created the necessity for and caused the action for divorce. Of course, the damages could not be calculated after the time when the decree of divorce was obtained. Having, then, the right to maintain this action, and there being no community, the community having been destroyed by the decree of divorce,-we need not concern ourselves about the proposition that the damages when secured will be community property. The judgment settles the question as to the ownership of the amount secured for damages. This answers the demurrer upon both grounds, viz. that the complaint did not state facts sufficient to constitute a cause of action, and that the husband was a necessary party plaintiff; and also the error alleged in overruling the motion for a nonsuit. It is alleged that the court erred in admitting in evidence letters written by the husband, Beach, to the respondent during coverture, for the purpose of showing the affection of the husband towards the wife. We think, under the circumstances of this case, that the letters were admissible, and the testimony was as competent as any other testimony showing the relations between the husband and wife, and they certainly do not fall under the ban of the statute cited by the appellant. It is also claimed that the court erred in excluding testimony of the witness Stull in relation to the object which the husband avowed that he had in writing the letters. We think this testimony was properly excluded, and that it falls under the head of self-serving testimony. The appellant also objects to the following instruction given by the court: "The law presumes that a husband who lives with and cohabits with his wife, she berring children, the issue of such cohabitation, has an affection for her, and this presumption continues until it is overthrown by a fair preponderance of the testimony to the contrary." We are not prepared to indorse the pessimistic view of the marriage relation contended for by the appellant, and we think the instruction was correct, and that there was no error in the modification by the court of the instructions requested by the appellant. There being no prejudicial errors committed by the court, the judgment will be affirmed. ANDERS and GORDON, JJ., concur. |