57 Wash. 136 | Wash. | 1910
This action was commenced in the superior court of King county by the Madrona Grocery Company, a corporation, against Oscar E. Wallin, constable of Kirkland precinct, and his official bondsmen, to recover damages for an
Appellants’ only contention is that respondent’s attorney was guilty of misconduct sufficient to warrant a reversal and the granting of a new trial. The record discloses, that Wallin as constable, acting under an execution issued against A. F. Flannigan and Fred Flannigan, •* seized and sold certain personal property claimed by the respondent, and the only issue tried was whether the personalty so seized was its property or that of the judgment debtors named in the execution. The alleged misconduct occurred on the cross-examination of the appellant Wallin, as follows:
“Q. When you went up there with that execution, Mr. Wallin, and Mr. Farr told you that that property belonged to the Madrona Grocery Company, what did you say to him? A. Why, they said the same thing as all of them do, and I have served, I guess, some three hundred executions. They claim another party owned the goods. Q. Well, when Mr. Flannigan told you it was not his property, what did you do ? A. Well, they all say the same thing. Q. What did you say to him then ? A. I asked them if they would sign an affidavit to that effect. They refused to do so. Q. Why didn’t you ask for an indemnity bond when you had notice that this property — that there was a question about the title of it? A. I did. Mr. Casey (attorney for appellants) : Just a minute, Mr. Wallin. I think that is entirely immaterial. The Court: Do you object? Mr. Casey: Certainly. The Court: Objection sustained. Q. You did not obtain any security prior to your levy, did you? Mr. Casey: Same objection. The Court: Objection sustained.”
Counsel for respondent proceeded with the cross-examination on other matters, after which the record shows the following :
“Mr. Casey (attorney for appellants) : Now, if the court please, at this time I want to enter an obj ection as to the conduct of counsel in trying to show that this witness, who is the defendant in the action, was indemnified by bonding by a surety company. The Court: Well, there is nothing of that
Appellants now insist that respondent’s counsel, by his cross-examination, improperly attempted to show in the presence of the jury that the appellant had taken an indemnity bond; that by reason .thereof some third person would have to pay any judgment that might be rendered against him, and that by reason of such misconduct the appellants are entitled to a new trial. In support of this contention, they cite numerous authorities, including the following cases from this court: Iverson v. McDonnell, 36 Wash. 73, 78 Pac. 202; Lowsit v. Seattle Lumber Co., 38 Wash. 290, 80 Pac. 431; Stratton v. Nichols Lumber Co., 39 Wash. 323, 81 Pac. 831, 109 Am. St. 881; Westby v. Washington Brick, Lime & Mfg. Co., 40 Wash. 289, 82 Pac. 271.
On the record we think that no prejudice has been shown, and that appellants’ contention is without merit. The theory on which this court decided the several cases cited was that counsel for the plaintiffs in personal injury cases improperly attempted to show that the defendants therein had casualty or indemnity insurance; that they would not be compelled to satisfy any judgments that might be rendered against them, and that such attempts, although made under other pretenses, were in reality for the improper purpose of creating prejudice in the minds of the jury. In each case the conduct and surrounding circumstances were such as to give the jury a direct intimation that the defendant had actually obtained such indemnity insurance, and was thereby protected from loss. In Iverson v. McDonnell, supra, this court said:
“It is true, the respondent said, when the objection was made that the question was asked for the purpose of affecting
There is nothing in the record to show that appellant actually obtained an indemnity bond, nor was it suggested or intimated that he had done so, by any of the questions propounded by respondent’s- attorney. In fact, if the questions contained any suggestion on the subject, it was that the constable had failed to insist upon his legal right to an indemnity bond before proceeding with the levy. Rem. & Bal. Code, § 4003, relieves a sheriff, deputy sheriff, or coroner from liability for neglecting to serve any civil process,' unless an indemnity bond be first tendered him if required. Rem. & Bal. Code, § 1888, provides that, when property levied upon is claimed by a third party, the sheriff or constable shall be entitled to demand a bond, and it is the ordinary rule that such officers may, before making a levy, demand an indemnity bond when they are in doubt as to the ownership of the property, or when it is claimed by a stranger to the execution. 25 Am. & Eng. Ency. Law (2d ed.), 685; Howard W. Middleton Co. v. Souder, 74 N. J. L. 87, 64 Atl. 975.
There was nothing in the form of either of the questions asked by respondent’s counsel calculated to inform the jury that the constable had obtained an indemnity bon,d. If any
The judgment is affirmed.
Rudkin, C. J., Mount. Parker, and Dunbar, JJ., concur.