Volume 43 — Washington Reports, Second Series

[1] TRIAL — CONDUCT OF COUNSEL — PRESENTATION OF EVIDENCE — COLLATERAL MATTERS. Where it is difficult to decide whether the interjection of collateral matter by counsel is inadvertent or deliberate, the trial court must exercise its discretion in ruling upon a motion for mistrial on that ground; and in an automobile collision case, where counsel for the plaintiff asked the defendant on cross-examination whether he had been successful in a prior action involving the same accident, which question was immediately withdrawn and the objection to it sustained, held that it was not an abuse of discretion for the trial court to deny the motion for mistrial. [2] EVIDENCE — RELEVANCY AND COMPETENCY — RES GESTAE — STATEMENTS CONNECTED WITH TRANSACTION OR EVENT. Under the <italic>res gestae</italic> rule, testimony is admissible concerning statements made by participants in a transaction or by other persons present thereat, the theory of the admission of such testimony being that the statement is made while the person is still under the influence of the act and before there is time for him to fabricate; and it may be made in answer to a question provided it is spontaneous and under circumstances which would negative the thought that it might have been made with design or premeditation. [3] SAME. In an automobile collision case, a statement made by the driver of one of the cars shortly after the accident, to the effect that "someone instructed him to hold her wide open," held to come within the purview of the <italic>res gestae</italic> rule. [4] AUTOMOBILES — LIABILITY FOR INJURIES — PERSONS LIABLE — PROSPECTIVE PURCHASER ACCOMPANIED BY SALESMAN. Where a car is being driven by a prospective purchaser accompanied by a salesman or agent, the owner is liable for the negligence of the prospective purchaser if the agent retains the right of control. [5] TRIAL — INSTRUCTIONS — APPLICABILITY TO FACTS AND EVIDENCE. In an automobile collision case, error cannot be predicated on the fact that an instruction ignored contributory negligence as a defense, where contributory negligence was defined and called to the attention of the jury in other instructions; and it further appears that, although contributory negligence was pleaded and the court evidently instructed the jury on that issue as a matter of precaution, there is no evidence which would warrant a finding of contributory negligence on the part of the plaintiff.<page_number>Page 316</page_number> [6] SAME — INSTRUCTIONS — CONSTRUCTION — CHARGE AS A WHOLE. In an automobile collision case, held that the instructions, considered as a whole, were fair and impartial. [7] AUTOMOBILES — LIABILITY FOR INJURIES — ACTIONS — EVIDENCE — SUFFICIENCY — STATUS OF OPERATOR — PROSPECTIVE PURCHASER ACCOMPANIED BY SALESMAN. In an action against an automobile dealer for personal injuries and damages sustained when a car owned by him missed a curve while being driven at a high rate of speed and struck another car, held that the evidence was sufficient to take to the jury the questions of whether or not, at the time of the accident, the driver of the dealer's car was a prospective customer, and whether or not the dealer's salesman, who was in the car, was within the scope of his employment; and that such questions were adequately and fairly presented to the jury. [4] See 50 A.L.R. 1391; 5 Am. Jur. 689.

[1] TRIAL — TRIAL BY COURT — FINDINGS OF FACT — DUTY TO MAKE — DISMISSAL OR NONSUIT. When an action is dismissed at the conclusion of the plaintiff's case, no findings of fact are required. [2] APPEAL AND ERROR — ASSIGNMENT OF ERRORS — SCOPE AND EFFECT — JUDGMENT OF DISMISSAL. On appeal from a judgment of dismissal at the conclusion of the plaintiff's case, where the assignments of error are directed to the making of or refusal to make findings of fact, the supreme court will regard the assignments as presenting the general question of what the facts are with reference to the matters and things placed in issue by the pleadings and whether such facts establish a <italic>prima facie</italic> case with regard to any of the requested items of relief. [3] TRUSTS — RESULTING TRUSTS — CREATION. When title to property is taken in the name of a grantee other than the person advancing the consideration, the one in whose name title is taken is a resulting trustee for the person who paid the purchase price, in the absence of evidence of a contrary intent; and this principle applies in the case of personal property transactions as well as those involving real property. [4] SAME — RESULTING TRUSTS — EVIDENCE TO ESTABLISH — SUFFICIENCY. Evidence that two brothers made equal contributions to the purchase price of 249 shares of corporate stock and that one brother was permitted to receive and hold ten of the other brother's half of the purchased shares for the sole purpose of giving him managerial control of the corporation, constitutes a <italic>prima</italic> <italic>facie</italic> showing that he holds the ten shares as trustee for his brother under a resulting trust. [5] LIMITATION OF ACTIONS — COMPUTATION OF PERIOD — EQUITY ACTIONS — EXPRESS TRUSTS. Statutes of limitation apply to actions in equity as well as actions at law, except that as between the trustee and the beneficiary of an express trust the statute does not run so long as the trust subsists. [6] SAME — COMPUTATION OF PERIOD — RESULTING TRUSTS — REPUDIATION OF TRUST. The statute of limitations begins to run on a resulting trust, not when the trust comes into being, but when the trustee repudiates the trust and notice of such repudiation is brought home to the beneficiary. [7] SAME. An action to establish a resulting trust was not barred by the statute of limitations, where it appears that the plaintiff did not receive notice of the defendant's repudiation of the trust until less than a year prior to the commencement of the action.<page_number>Page 788</page_number> [8] CORPORATIONS — OFFICERS AND AGENTS — DUTIES AND LIABILITIES — FIDUCIARY NATURE OF RELATION. A director and officer of a corporation who purchased a tract of land to be used by the corporation acted in a fiduciary capacity and was bound to exercise the utmost good faith in conserving and furthering the interests of the corporation. [9] SAME. Where stock in a corporation was owned by two brothers, and the older brother managed its affairs for many years, a relationship of trust and confidence existed between them, and the younger brother depended upon his more experienced brother who held a majority of the stock, the older brother occupied the position of a fiduciary with respect to his brother's corporate interests. [10] SAME — INDIVIDUAL PROFITS OR BENEFITS. Those who serve in a fiduciary capacity as stockholder or director of a corporation may not personally profit at the expense of the corporation; and one who stands in a personal fiduciary relationship to another is similarly under a duty not to profit at the expense of the other. [11] TRUSTS — CREATION — CONSTRUCTIVE TRUSTS — EVIDENCE TO ESTABLISH. Where the president of a corporation purchased real property for the use of the corporation, under an agreement with his brother, the other stockholder, that he would convey the property to the corporation when he had been reimbursed through payment of rental, he violated his duty not to profit personally at the expense of the corporation and of his brother, to whom he stood in a fiduciary relationship regarding the corporate interests, when he retained possession of the land after being fully compensated for expenses incurred in its acquisition; and this establishes <italic>prima facie</italic> that he thereupon became trustee of the property for the corporation under a constructive trust. [12] LIMITATION OF ACTIONS — LIMITATIONS APPLICABLE — FRAUD — CONSTRUCTIVE TRUST. The three-year statute of limitations pertaining to actions for relief upon the ground of fraud (RCW <cross_reference>4.16.080</cross_reference>(4)) is applicable to an action against an officer of a corporation to establish a constructive trust in property purchased by him for the use of the corporation under an agreement to convey it to the corporation when he had been reimbursed through payment of rental, and retained by him after he had been so reimbursed. [13] SAME — COMPUTATION OF PERIOD — CONSTRUCTIVE TRUST. In such a case, the statute of limitations would not begin to run until the plaintiff, the other stockholder of the corporation, discovered or should have discovered that the officer had received full compensation and was therefore fraudulently withholding the property; and where it appears that the plaintiff never did discover when the officer received full compensation and had no way of ascertaining that fact, the action was not barred by the statute of limitations. [14] CORPORATIONS — OFFICERS AND AGENTS — DUTIES AND LIABILITIES — DEALINGS WITH CORPORATION. Where an officer of a corporation<page_number>Page 789</page_number> purchased property for the use of the corporation, rented it to the corporation under an agreement with his brother, the other stockholder, that he would convey it to the corporation when he had been reimbursed through payment of rental, and retained possession after he had been so reimbursed, the corporation, on the theory of money had and received, is entitled to recover excess rentals received by the officer. [15] SAME. On an issue as to whether the president and majority stockholder of a corporation wrongfully received a bonus of $10,200, the burden is upon him to establish that this was a proper disposition of corporate surplus. [11] See 48 A.L.R. 1269; 54 Am. Jur. 180.