Hale v. Crown Columbia Pulp & Paper Co.

• Decision Date: 09 December 1909
• Court: Washington Supreme Court
• Parties: HALE v. CROWN COLUMBIA PULP & PAPER CO.

105 P. 480

56 Wash. 236

HALE v. CROWN COLUMBIA PULP & PAPER CO.

Supreme Court of Washington

December 9, 1909

Department 1. Appeal from Superior Court, Clarke County; W. W. McCredie Judge.

Action by Daniel Hale, by his guardian ad litem, against the Crown Columbia Pulp & Paper Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Wilbur & Spencer and A. L. Miller, for appellant.

E. M Green and R. C. Sugg, for respondent.

GOSE J.

This action was instituted by the respondent, the plaintiff below to recover compensation for personal injuries sustained on January 17, 1908. From a verdict and judgment in his favor, this appeal is prosecuted.

The case is entitled, 'Daniel Hale, by his Guardian ad Litem, F. P. Wagner.' The complaint states that the plaintiff is a minor of the age of 20 years; but it does not allege the appointment of a guardian ad litem, and there was no evidence introduced on that subject. The evidence does show, however, that the respondent was a minor of the age of 20 years at the time of the trial. It is contended that the failure of the respondent to allege and prove the appointment of a guardian ad litem precludes a recovery. The record shows: That the complaint was filed on March 21, 1908; that on the same day and under the same title the respondent filed a petition, referring to his complaint, suggesting his infancy, and asking that a guardian ad litem be appointed for the purpose of this action; and that on the same day an order was entered of record appointing F. P. Wagner as his guardian ad litem for that purpose. If the action be treated as prosecuted by the guardian, the objection is not tenable. Courts will take judicial notice of their records with reference to the prior proceedings in the case at bar. 17 Am. & Eng. Enc. Law (2d Ed.) § 925. If it be treated as one prosecuted by the minor personally, the appellant waived the question of capacity by pleading to the merits. Want of capacity to sue, when it appears on the face of the complaint, must be taken by a demurrer. 2 Ballinger's Ann. Codes & St. §§ 4907, 4909, 4911 (Pierce's Code,§§ 374, 376, 378); Blumauer v. Clock, 24 Wash. 596, 64 P. 844, 85 Am. St. Rep. 966; Rothchild v. Mahoney, 51 Wash. 633, 99 P. 1031.

The complaint also alleges that the appellant is a corporation; but no evidence was offered in support of the allegation. An objection was raised upon this ground after verdict, and is renewed here. The rule is settled in this state that a defendant corporation cannot appear generally in an action, plead to the merits, and afterwards complain that there was no affirmative proof of its corporate existence. Garneau v. Port Blakely Mill Co., 8 Wash. 467, 36 P. 463; Sengfelder v. Mutual Life Ins. Co., 5 Wash. 121, 31 P. 428; Frost v. Ainslie Lumber Co., 3 Wash. St. 241, 28 P. 354, 915.

The negligence charged in the complaint is that the respondent's injury was caused by the appellant operating one of its cars with defective brakes. The answer contains a general denial of the allegations of the complaint, and pleads affirmatively that the respondent was guilty of contributory negligence, that he assumed the risk incident to his employment, and that the injury was caused by the negligence of a fellow servant. At the time of the happening of the accident, the respondent was working on an elevated tramway, putting fish plates on the steel rails over and upon which the appellant was operating cars in carrying its products from the finishing room in the mill to the dock. The tramway is several hundred feet in length, has a height of about 20 feet at the mill, from which point it descends toward the dock upon a grade of 4 or 4 1/2 per cent. for the first 300 feet from the mill, at which point it curves to the left for a short distance, from whence it proceeds to the dock on a comparative level in a straight line. The cars were operated in this manner: In the finishing room, a few feet from the head of the tramway, there was a donkey engine which supplied the power to operate a revolving drum and wire cable. There was a ring in the cable which could be attached to a hook on the rear of the car. Whether the car was controlled on the grade in going to the dock with the engine and cable in connection with the brakes on the car, or by the latter only, was a disputed question at the trial. It is admitted, however, that the cable was attached to the car at the mill, and carried about 300 feet, at which point the cable was slackened and detached and the car controlled from that point to the dock by means of brakes. The cable was left at the point of detachment, and the returning car was carried from that point to the mill by the power supplied by the engine. The evidence tends to show: That, at the time of the accident, and for two months preceding, the brakes were defective and the iron shoes badly worn; that the injury was caused by the defective brakes, in this, that near the foot of the grade the cable was slackened, the brakes set, and a block of wood placed under the car wheels preparatory to detaching the cable; that the car suddenly started and, when it reached the curve, the cable tightened, describing a straight line and striking the respondent, who was working a few feet from the mill on the left rail looking from the mill, throwing him to the ground a distance of 15 or 20 feet. He struck with such violence that he remained unconscious for about five hours, sustaining the injuries complained of. The evidence further shows that the respondent had been warned to 'look out for the cars,' that the track was about eight feet in width, the cars about seven feet in width, leaving a space of about six inches on either side of the car, and that there were no guard rails. Whether there were projections from the tramway at intervals of a few feet where the respondent could go to avoid the moving cars was a disputed question. The respondent asserted that there were such projections and the appellant denied it. The respondent was working at the place where he was directed to work, and his...