amount awarded is not justified by the evi-utory age of consent, held, that the absence of dence. The evidence on this feature of the sexual intercourse between the parties was no case, as in other respects, is exceedingly vo- element for consideration, where an otherwise luminous and largely circumstantial, and valid marriage had been contracted. while it cannot be easily repeated in substance, nor summarized, examination of it satisfies us that it sustains the judgment entered. [3] Another assignment is that the court erred in giving the respondent a lien on the 50 shares of stock of the Buttnick Jobbing & Investment Company held by Lena Buttnick, and enjoining her from disposing of or incumbering it. This also is largely a question of fact. She is a sister of appellant, while J. M. Buttnick is their father. The trial court found, upon what appears to be a preponderance of the evidence, that the 50 shares of capital stock in question were subscribed for by Morris Buttnick and issued to him, and that thereafter J. M. Buttnick persuaded him to transfer it to his sister, and that it was so transferred to her without consideration; that she had no knowledge of the transfer, and that it was so transferred for the express purpose of secretly holding it, and to avoid the stock being subjected to the payment of alimony or whatever allow ances might be made in this suit. Finally, it is claimed the court should have granted appellant relief upon his cross-complaint for a divorce. Upon examination of the evidence we reach the same conclusion that the trial court did on this feature of the controversy. Judgment affirmed. En Banc. Appeal from Superior Court, Snohomish County; Ralph C. Bell, Judge. Action by Juliet Tisdale against Bert Tisdale. From a judgment dismissing the action, plaintiff appeals. Affirmed. W. P. Bell, of Everett, for appellant. 04 BRIDGES, J. By this action the plaintiff sought to annul the marriage between herself and the defendant. There is no dispute as to the facts, which were as follows: The marriage took place in the city of Seattle, on January 24, 1921. In some manner not explained, a marriage license was obtained. At the time of the marriage the plaintiff was 17 years of age, and the defendant more than 21. Neither of the parents of the plaintiff gave their consent in writing, or otherwise, to the marriage; on the contrary, such marriage was had against their wishes and consent. After the marriage, and up to the time of the trial of the case, the parties had not lived together as husband and wife, or at all, and there had been no sexual intercourse. From these facts the trial court concluded that the marriage could not be set aside or annulled, except for reasons which, in law, would permit the annulment of the marriage if the plaintiff had been of the age of 18 years at the time of the marriage. Conformably PARKER, C. J., and BRIDGES and TOL- to these conclusions, the court made a judgMAN, JJ., concur. TISDALE v. TISDALE. (No. 16761.) (Supreme Court of Washington. Aug. 19, 1922.) 1. Marriage 5, 58(1)—Common-law rule as to age of consent not changed; female 17 years of age held not entitled to the annulment of marriage contracted by her. Rem. Code 1915, § 7150, declaring marriage a contract that may be entered into by males at the age of 21 and females at the age of 18, does not change the common-law rule as to the ages of consent to a marriage; and hence a female 17 years old is not entitled to the annulment of a marriage to a male over 21 years of age, under section 7162, since that section, though providing that a marriage may be avoided at the suit of one "incapable of consenting thereto, for want of legal age," does not fix the ages of consent. 2. Marriage 58(1)-Absence of sexual Intercourse not element in determining whether marriage shall be annulled, In an action for the annulment of a marriage claimed to be contracted before the stat ment dismissing the action. The plaintiff has appealed. [1] The statutes of this state affecting marriage are sections 7150, 7162, and 7164, Rem. Code. Section 7150 is as follows: "Marriage is a civil contract which may be entered into by males of the age of twenty-one years, and females of the age of eighteen years, who are otherwise capable." Section 7162 is as follows: "When either party to a marriage shall be incapable of consenting thereto, for want of legal age or a sufficient understanding, or when the consent of either party shall be obtained by force or fraud, such marriage is voidable, but only at the suit of the party laboring under the disability, or upon whom the force or fraud is imposed." Section 7164 provides for the marriage license and the conditions under which it shall be obtained. [2] This same general question has been before this court in Re Hollopeter, 52 Wash. 41, 100 Pac. 159, 21 L. R. A. (N. S.) 847, 132 Am. St. Rep. 952, 17 Ann. Cas. 91, and in Cushman v. Cushman, 80 Wash. 615, 142 Pac. 26, L. R. A. 1916C, 732. In the Hol For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (209 P.) over 12 is a valid contract, that can be annulled only upon the same grounds as would annul the marriage of males over 21 and females over 18." Under that decision this marriage is valid, because the parties were within the common the question of subsequent sexual intercourse could not possibly affect the question and would be wholly immaterial. Neither the common law nor our statutes recognizes the distinction sought to be made, and for us to make it would be nothing less than legislation on our part. lopeter Case, the wife at the time of the marriage was 14 years of age and the husband 19. The marriage was had without the consent of the parents of the husband, who was the plaintiff, or petitioner, in the case. In the Cushman Case, the wife at the time of the marriage was 17 years of age, and her hus-law marriageable age, and, such being true, band 18, and the marriage was performed without the consent of the parents of the plaintiff, who was the husband. In each of these cases the marriage was held valid. These cases are controlling of this one, unless they can be distinguished or are overruled. This is particularly true of the Cushman Case. The appellant seeks to distinguish them from the one at bar on the ground that in these cases the marriage had been consummated by sexual intercourse, whereas in this case there had been no such consummation. In other words, the appellant presses on us the doctrine that one, marrying while under the statutory age, may annul the marriage for that reason, if there has been no sexual intercourse after marriage; but if, under the same circumstances, the marriage has been followed by sexual relations, there may be no annulment. It may be conceded that it is not impossible to draw this distinction from the language used in the Hollopeter Case, although the question was not there directly discussed or decided; but such cannot be done in the Cushman Case. In that case the only mention made in the opinion of facts which would tend to distinguish it from this case is where, in the early portion of the opinion, the court says: "The marriage was fully consummated, and as a result thereof the appellant became pregnant, but suffered a miscarriage before the case came on for trial below." We then proceeded to discuss in great detail the various provisions of the statute, and after so doing said: * "So in our statute there is no prohibition against the marriage of males under the age of 21, nor of females under the age of 18. Neither is respondent's contention aided by section 7162, as this section does not attempt to fix the age at which either males or females are capable of consenting; and since it does not, we must look to the common law to find at what age such capacity is fixed." Finally we said: "But we cannot escape the conclusion that, since our statute makes no attempt to fix the age at which infants of either sex may marry within this state, reference must still be had to the common law to determine what that age is, and to find the age when, under section 7162, 'either party to a marriage shall be incapable of consenting thereto for want of legal age,' and that, since no statute declares the marriage of such a person to be void or voidable, the marriage of males of 14 and of females of But appellant earnestly contends that our statutes plainly fix the age at which persons may lawfully marry, and that the holding in the Cushman Case is wrong, and that it should be overruled. This we decline to do. That case was decided some 8 or 10 years ago. It has become the fixed law of the state on a question of great public moment. Since the handing down of that decision there have been several sessions of the state Legislature. It has not seen fit to enact any new legislation which would seek to change the rule of the Cushman Case. Its action or nonaction would strongly indicate its approval of the construction which this court has put on its acts. Since the Cushman Case is decisive of this one, the judgment here must be and is affirmed. PARKER, C. J., and FULLERTON, MITCHELL, and MAIN, JJ., concur. Where deputy sheriffs engaged in official business came on defendant, apparently asleep in a disabled auto truck on a highway, and on investigating found a large quantity of whisky, seizure of the whisky was not unlawful. 3. Searches and seizures 3-Seizure without warrant not prohibited, where goods are open to eye and hand. Seizure without a warrant is not prohibited where there is no need of a search, and where contraband subject-matter, or unlawful possession of it, is fully disclosed and open to the eye and hand. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 4. Statutes 130-Act restricting possession Laws 1917, p. 46, amending Initiative Meas- ure No. 3, adopted by popular vote in Novem- ber, 1914, is not void under Const. Amend. 7 (c), prohibiting the amendment of an act ap- 5. Intoxicating liquors 13, 132-State prohi- Laws 1917, p. 46, restricting the importa- Volstead Act. pellant do not prohibit a seizure without a warrant, where there is no need of a search, and where contraband subject-matter or un- lawful possession of it is fully disclosed and open to the eye and hand. State v. Llewel- lyn (Wash.) 205 Pac. 394; State v. Quinn et al., 111 S. C. 174, 97 S. E. 62, 3 A. L. R. 1500. [4] The statute upon which this case was prosecuted was enacted by the Legislature of and the contention is now made that the Appeal from Superior Court, Lincoln Coun- (Wash.) 203 Pac. 390. ty; Jos. Sessions, Judge. W. J. Miller was convicted of having un- lawful possession of intoxicating liquors, and Joseph J. Lavin, of Spokane, and John T. MITCHELL, J. On December 11, 1921, deputy sheriffs, engaged in official business, came upon the defendant, apparently asleep in a disabled auto truck on the highway near Davenport, Wash. Noticing his condition, the officers stopped to inquire. While one of them aroused the defendant, the other one, stand- ing by the truck, observed it contained a rested the defendant and took charge of the truck and its contents. Upon an information charging the defendant with the crime of be- ing a bootlegger, he was tried and found guilty by a jury of unlawfully having intoxi- cating liquor in his possession. judgment on the verdict an appeal has been [1-3] The first assignment of error is: (1) The denial of appellant's motion before the beginning of the trial for the return of the whisky claimed to have been taken by the officers without authority of law; and (2) allowing it to be received in evidence over his objection that it had been seized without a search warrant and in violation of his constitutional rights. As to the first, on the authority of State ex rel. Yakima v. Supe- rior Court (Wash.) 206 Pac. 925, the applica- tion was properly denied. Concerning the second, we are not called upon to decide if the whisky was admissible in evidence, if it be assumed the officers got possession of it by a trespass, for in this case there was no tres- pass. It requires a warrant to seize only in [5] Further, it is claimed the state law is repugnant to, and his been superseded Finding no error in the record, the judg- ment appealed from is affirmed. STATE v. HEMPKE et al. (No. 17100.) (Supreme Court of Washington. Sept. 8, I. Infants 20-Evidence as to who procured room for infant held admissible. Where, in a prosecution for contributing to the delinquency of a female child, a young wo- man, who was a companion of the infant and defendants, testified as to the manner and by whom she and the infant were brought to a certain city, and that a room was procured for them at a hotel, it was not error to permit her to testify that the room was procured by a brother of one of the defendants and another 2. Witnesses 287(1)—May on redirect ex- plain evidence on cross examination. Where defendants, in a prosecution for con- tributing to the delinquency of an infant, on cross-examination of the infant, sought to show that she was of immoral character, it was not error to permit the infant, on redirect examina- tion, to explain the circumstances brought out 3. Appeal and error 1171(1)-Error of prosecutor in attempting to introduce improp- Any error of the prosecutor, in a prosecu- constitutional provisions invoked by the ap- tion for contributing to the delinquency of an STATE v. HEMPKE 11 infant, in willfully attempting to get improper, not very material. The girl was of tender evidence before the jury, was cured by instruction to disregard the subject-matter of the inquiries. Department 1. Appeal from Superior Court, Snohomish County; Bell, Judge. Fred Hempke and Dwight Dutcher were convicted of contributing to the delinquency of a female child, and appeal. Affirmed. E. C. Dailey and A. E. Dailey, both of Everett, and M. J. McGuinness, of Snohomish, for appellants. Thos. A. Stiger and Q. A. Kaune, both of Everett, for the State. PER CURIAM. The appellants were convicted of the offense of contributing to the delinquency of a female child. years, and her prior immoral acts would in no manner excuse the acts of the defendants; but the state was entitled, nevertheless, to show the entire transaction, that the jury might have for their consideration all of the surroundings. [3] One of the defendants took the witness stand on his own behalf, and on his crossexamination the state sought to show certain admissions made by him at the time of his arrest. To these questions objections were interposed, and sustained by the court. The complaint of the defendants is that the prosecuting attorney was guilty of misconduct in asking the questions, and misconduct in too unduly persisting upon their materiality, thereby getting before the jury matter improper as evidence. No objection was made to the conduct of the prosecutor at the time, and the trial court was not called upon to rule on the particular objection. It may be true, as the defendants argue, that improper conduct on the part of a prosecuting attorney can amount to reversible error, whether objected to or not; but we cannot think this such a case. The matter inquired into was not entirely foreign to the issues then on trial. Indeed, it seems to us that affirmative answers to the questions propounded would have tended somewhat strongaly to impeach certain statements the defendant witness had made in his direct testimony. This circumstance justified propounding the questions, and relieves the prosecuting attorney of the charge of willfully attempting to get improper evidence before the jury. But, more than this, the court made it clear to the jury that the subject-matter of the inquiries was not for their consideration, and there is nothing to show that the jury did not heed the admonition of the court. [1] The first of the errors assigned for reversal relates to the admission of testimony. A young woman, who was the companion of the defendants and the complaining witness at the time the acts and circumstances occurred on which the state relies for conviction, was called as a witness on behalf of the state. In her testimony, after narrating the manner and by whom she and the female child mentioned had been brought to a certain city, which she named, she stated that a room had been procured for 'them at hotel therein. Asked who procured the room, she answered that it was procured by a brother of one of the defendants and another boy. The defendants moved to strike the answer, which motion the court overruled. It is argued that this was prejudicial error, because the defendants cannot be convicted for the wrongful acts of others. But we find no error in the court's ruling. This was but a link in the chain of circumstances, without the narration of which the defendants' part in the affair could not have been well understood. It is perhaps true that enough would have been told, had the testimony been confined to the fact that others than the defendants procured the room; but the mentioning | as of full age” at the time of the commission of the others' names was not error. [2] On cross-examination of the complaining witness the defendants sought to show that she was of immoral character. On redirect she was asked certain questions tending to explain the circumstances brought out in the cross-examination, and was permitted to answer over the objection of the defendants. This ruling of the court constitutes the second assignment, but again we find no error. The explanatory matter was perhaps The defendants make certain further objections, based upon the assumption that the evidence shows that the complaining witness had theretofore been married, and in consequence was to be "deemed and taken These The of the acts laid in the information. DISHMAN v. WHITNEY et al. (No. 16793.) (Supreme Court of Washington. Aug. 30, 1922.) 1. Master and servant 316(1)-One soliciting orders on salary and commission not an independent contractor. One employed to go about the city and solicit orders for a weekly salary and a commission on sales is not an independent contractor as respects liabilty for his negligence. 2. Master and servant 318(1)-Control of work one test for determining relation. One of the tests for determining whether contract of employment creates the relation of independent contractor or that of principal and agent is whether the employer retained or has the right to control the mode or manner in which the work is to be done. 3. Master and servant 330(1)-Burden of issue of independent contractor on party asserting relation. Where the facts presented are as consistent with the theory of agency as with that of independent contractor, the burden is on the one asserting the independency of the contractor to show the true relation of the parties. 4. Master and servant 332(3) Relation may be question of law, Whether one is an agent or an independent contractor may be a mixed question of law and fact, or of law alone. 5. Master and servant 302 (2)-Master not relieved of liability for salesman's negligence because use of automobile not directed. The employer of one employed to solicit orders was not relieved of liability for his negligence in driving an automobile while soliciting orders because he had not been directed to use an automobile, where his use thereof was known to one of the managers of the business, and its use was for the employer's benefit, in that it enable him to see more people and presumably to make more sales. 6. Master and servant 332(2)-Salesman's scope of employment question of fact. One employed to solicit orders for an employer, whose store hours were from 8:45 to 5:15, but who was not told not to work after 5:15, was not as matter of law acting outside the scope of his employment in calling on a prospective customer about 7 o'clock in the evening, pursuant to the customer's previous suggestion. 7. Damages 132 (3)-Verdict of $7,500 for broken ribs, injury to spine, etc., not so large as to show passion or prejudice. 8. New trial 108(4)-Newly discovered evidence as to injury, not constituting important element of damage, not ground. Though witnesses testified that plaintiff, prior to an accident, had an erect carriage, where the rounded condition of his shoulders was not one of the important elements of damage relied on, alleged newly discovered evidence that his appearance was no different after the accident than before did not require a new trial. 9. Trial 252(8)—Instruction as to backing of automobile causing injury properly modified, where not warranted by evidence as requested. Instruction that, if automobile injuring plaintiff was caused to roll back by the cranking of the car, there could be no recovery, held properly modified to state that, if defendant in backing the car acted unconsciously, and not carelessly or thoughtlessly, he would not be chargeable with negligence, where there was no evidence that the cranking caused the car to back against plaintiff. 10. Appeal and error 232(2)-Where evidence of doctor's services not objected to for want of evidence of reasonable value, the point could not be made on appeal. In an action for injuries, where evidence as to the services of a doctor was not objected to for want of proof of their reasonable value, such objection could not be made on appeal. Department 2. Appeal from Superior Court, King County; J. T. Ronald, Judge. Action by Reuben Dishman against C. R. Whitney and another. From a judgment for plaintiff, defendants appeal. Affirmed. Donworth, Todd & Higgins and Lundin & Barto, all of Seattle, for appellants. Griffin & Griffin, of Seattle, for respondent. to recover damages for personal injuries. MAIN, J. The purpose of this action was The defendants are the Grote-Rankin Company, a corporation, and one C. R. Whitney, who was in the employ of that company, and was the active agent in producing the injury of which the plaintiff complains. The trial to the court and a jury resulted in a verdict against both defendants in the sum of $7,500. Each made a motion for judgment notwithstanding the verdict, and, in the alternative, for a new trial. These motions were overruled, and the defendants prosecute separate appeals from the judgment entered upon the verdict. Grote-Rankin is a corporation operating a large retail furniture and house-furnishing store in the city of Seattle; one line of its business being that of the sale of pipeless fur Where plaintiff had three ribs broken when struck by an automobile, his spine was injured, and he was in bed for about six weeks, and had not been able to do any work since the injury, and was in a nervous condition and had suffer-naces. ed much pain, though strong and well prior to the accident, a verdict of $7,500 was not so large as to show passion and prejudice. On June 16, 1920, Whitney was employed by Grote-Rankin for the purpose of soliciting the sale of furnaces in the city of Seattle. At the time he was employed he was For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |