Davis v. Clevinger

• Decision Date: 08 November 1923
• Docket Number: 18230.
• Citation: 127 Wash. 136,219 P. 845
• Court: Washington Supreme Court
• Parties: DAVIS et al. v. CLEVINGER.

219 P. 845

127 Wash. 136

DAVIS et al. v. CLEVINGER.

No. 18230.

Supreme Court of Washington

November 8, 1923

Department 1.

Appeal from Superior Court, Lewis County; Reynolds, Judge.

Action by W. A. Davis and others against Landon L. Clevinger.Judgment for defendant, and plaintiffs appeal.Reversed.

Gus L Thacker, of Chehalis, for appellants.

Hayden Langhorne & Metzger, of Tacoma, for respondent.

MACKINTOSH J.

In June, 1921, the appellants procured a certificate of public necessity from the state department of public works by which they were given the right to operate automobiles and trucks for the carrying of passengers and freight for hire between Morton and Randle and Randle and Lewis, in Lewis county, and since that time they have been engaged in that business maintaining service in accordance with a schedule filed with the department.The respondent has a government contract for the carriage of mail, and to fulfill that contract he operates a mail stage between Morton and Randle and Lewis over the same route as that designated in the appellants' certificate.This action is to restrain the respondent from carrying passengers and hauling freight over this route.

The testimony shows that the respondent has no certificate from the department of public works; he had applied for one, but his application had been rejected.The certificate issued to the appellants was given by virtue of the Laws of 1921, c 111, §§ 2 and 4.The testimony shows that the respondent habitually has carried varying amounts of freight for different persons living along the route, for which, in at least the majority of instances, he received pay; that frequently he carried passengers who in a great many cases paid for the service.

Various excuses are offered for respondent's conduct, to wit, that the services which he had been granting were gratuitous; that they had been rendered on occasions when the appellants' vehicles were not available to persons desiring the service; that on some occasions the services were rendered on a special contract; and, altogether, that it was a matter of trifling moment, at best.

Reading the record, we cannot but be impressed with the fact that the respondent has at all times been ready and anxious to haul such freight and carry such passengers as the capacity of his equipment would permit.His claim that the things which he has done are merely those 'little unremembered acts of kindness and of love' is dissipated by the showing made in the testimony.It is true that he has now some apparent difficulty in remembering the various incidents, but it is clear that at the time they occurred their bases were strictly monetary, and the testimony shows that, although the payment of their fares by the passengers was not made directly into his hands, the money was often left on the seat, to eventually find its way to respondent's pocket.

The facts of this case cannot be distinguished from those which were presented to this...