Caine v. Seattle & N. Ry. Co.

• Citation: 12 Wash. 596,41 P. 904
• Court: United States State Supreme Court of Washington
• Decision Date: 21 September 1895
• Parties: CAINE ET AL. v. SEATTLE & N. RY. CO.

41 P. 904

12 Wash. 596

CAINE ET AL. v. SEATTLE & N. RY. CO.

Supreme Court of Washington

September 21, 1895

Appeal from superior court, King county; T. J. Humes, Judge.

Action by E. E. Caine and another against the Seattle & Northern Railway Company. Judgment for plaintiffs, and defendant appeals. Reversed.

Andrew F. Burleigh, for appellant.

ANDERS J.

Respondents who were plaintiffs in the court below, filed a complaint alleging that between May 1, 1890, and June 1, 1890, they, at the special instance and request of the defendant, performed services with their steamer J. C. Britton in transporting certain steel rails, spikes, and fish plates from Seattle to Anacortes; that the reasonable value of said services was $665.42, no part of which sum has been paid; and demanding judgment for that sum, and interest thereon from June 1 1890. The defendant filed its answer, consisting of denials and also a counterclaim alleging, in substance, that plaintiffs had undertaken to transport a large quantity of steel rails and other material for defendant, subject to the usual obligations of a common carrier, and had lost such rails and material, and demanding judgment against plaintiffs for the sum of $7,000, the value of the material alleged to have been lost. The plaintiffs demurred to this new matter, which demurrer, after argument, was overruled. Thereupon they filed their reply, setting up an agreement with the defendant substantially as stated in defendant's counterclaim, and averring that the loss of said material was occasioned by unavoidable accident and the perils of the sea, and also that an action was pending in the district court of the United States for the Northern district of Washington by said defendant as libelant against the steamer J. C. Britton as respondent, and that plaintiffs in this action were the claimants of the J. C. Britton. When the cause came on for trial, a stipulation was entered into in open court by counsel for the respective parties, whereby they waived a jury, and consented that the cause should be tried before the court. The cause then proceeded to trial and thereupon plaintiffs objected to the consideration of the matter alleged in the answer of the defendant as an affirmative defense to plaintiffs' complaint, on the ground that at the time when said affirmative defense was filed in this cause there was, and still is, pending in the district court of the United States for the district of Washington, Northern division, another action for the same cause set forth in said affirmative defense, which action is in admiralty, and is numbered 78 on the docket of said court, and in which suit the defendant herein is libelant, said steamer J. C. Britton is respondent, and these plaintiffs are claimants; in which action the defendant is seeking to recover the value of the same cargo referred to in said affirmative defense, for the same reason and upon the same grounds alleged in said defense. The defendant, by its attorney, conceded the facts in said affirmative defense to be as alleged by plaintiffs in their objection, and thereupon the court sustained the objection of the plaintiffs, and directed that the new matter set up in the defendant's answer should not be considered in this cause, on the ground of another action pending concerning the same matter in the district court of the United States. Thereupon defendant waived each and every of the denials contained in its answer, and conceded in open court that, but for the facts pleaded in its affirmative defense, plaintiffs were entitled to judgment as prayed in the complaint; and, defendant electing to stand upon its answer, judgment was accordingly entered in favor of plaintiffs for the amount claimed in the complaint. From this judgment defendant prosecutes this appeal.

The Code of Procedure provides (section 189) that the defendant may demur to the complaint when it shall appear upon the face thereof that there is another action pending between the same parties for the same cause; and that, when the objection does not appear upon the face of the complaint, it may be taken by answer (section 191). Inasmuch as, by the terms of the statute, the defendant may interpose the objection of another action pending, the question is suggested whether the statute is applicable to a case of this character. We have no doubt that it is, and that the court was right in so assuming. This results from the fact that a counterclaim is in the nature of a cross complaint, and must...