32 Wash. 566 | Wash. | 1903
The opinion of the court was delivered by
This is an action upon an attachment bond. Upon a jury trial in the court below, the plaintiff recovered the fall amount of the bond. Defendants appeal.
The errors alleged are that the court overruled a demurrer to the complaint, based upon the ground that the complaint joined an action in tort with one in contract; that the evidence showed that the defendants had probable cause to believe the ground upon which the attachment
The complaint does not purport upon its face to state more than one cause of action. That cause is upon the contract to indemnify the plaintiff for “the damages he may sustain . . . should said attachment be wrongfully, oppressively, or maliciously sued out.” It is true
It is next argued that appellants’ motion for a judgment should have been granted because appellant Bender had reasonable and probable cause to believe the grounds upon which the attachment issued. One of appellants’ attorneys testified substantially that Bender stated the facts to him, and produced certain other witnesses, who were examined by the attorney, and that he thereupon advised the attachment. It is argued that, because of this advice, probable cause for the attachment will be presumed. It was said by this court in Levy v. Fleischner, Mayer & Co., 12 Wash. 15 (40 Pac. 384) :
“ . . . it is the well established law that probable cause is a question of law, in this far, at least, that probable cause will be presumed when the action has been commenced by the advice of attorneys to whom has been submitted all the facts in the case.”
That was a case where there was no controversy as to the question whether the action was brought by the advice of counsel familiar with all the facts. In this case the question was not disputed that one of the attorneys advised the attachment, but it was disputed that all the facts in the case had been submitted to him, and it was claimed by respondent that the evidence of appellant Bender shows that he had stated to his attorney as facts things which he knew were untrue, and had no reason to believe. Where the attorney is falsely informed as to the facts, and is not put in possession of all of the facts, the advice of the
“What facts, and whether particular facts, constitute probable cause is a question exclusively for the court. What facts exist in a particular case, where there is a dispute in reference to them, is a question exclusively for the jury. When the facts are in controversy, the subject of probable cause should be submitted to the jury, either for specific findings of the facts, or with instructions from the court as to what facts will constitute probable cause. ‘These rules,’ says the court, ‘involve an apparent anomaly, and yet few, if any, rules of the common law rest upon a greater unanimity or strength of authority;’ citing many authorities.”
The trial court in this case fully and fairly instructed the jury, in substance, that if they found that appellant Bender in good faith related to his attorney all the facts in the case, and that the attorney in good faith investigated the facts, and thereupon advised the attachment, respondent could not recover. But, if they found that Bender did not truthfully state the facts to his attorney, and made statements which were false, and upon such statements the advice was given, such advice would not constitute a defense to the action. These instructions were proper, and the finding of the jury upon the facts is conclusive now.
Thom what we have said above, it is unnecessary to notice the next assignment of error.
It is next claimed as error that the court refused to permit L. B. Hash, one of appellants’ counsel, to argue the case to the jury. Appellants had two attorneys present at the trial, viz., J. B. Dawson and Mr. Hash. Mr.
“If an attorney offers himself as a witness on hehalf of his client and gives evidence on the merits, he shall not argue the case to the jury unless hy permission of the court.”
It is argued that this rule is in conflict with subdivision 5 of § 4993, Bal. Code, which provides as follows:
“ . the plaintiff or party having the burden of proof may, by himself or one counsel, address the court and jury upon the law and facts of the case, after which the adverse party may address the court and jury in like manner by himself and one counsel, or by two counsel, and be followed by the party or counsel of the party first addressing the court.”
Under this statute, either party may waive his right to make an argument upon the facts to the jury. The rule above quoted provides for a condition which is a waiver of the right, and which right may not thereafter be exercised, except by permission of the court. The attorney, when he offered himself as a witness, thereby waived his right to argument. The rule is not in conflict with the statute, and is a salutary one, because, where attorneys make witnesses of themselves, and then argue their evidence to the jury, it is often difficult for the jury to draw the line between the evidence and the argument of the attorney. The court in this case did not err in refusing-permission to the attorney to argue the case.
Upon the last question, the record fails to show that plaintiff’s counsel read any notes or evidence to the jury. For- that reason, we shall not consider the question.
There is no error in the record. The judgment appealed from is therefore affirmed.
Fullerton, C. J., and Dunbar and Anders, JJ., concur.