Howe v. Whitman County
| Decision Date | 18 May 1922 |
| Docket Number | 16650. |
| Court | Washington Supreme Court |
| Parties | HOWE et al. v. WHITMAN COUNTY. |
Department 2.
Appeal from Superior Court, Whitman County; Wm. A. Huneke, Judge.
Action by Phyllis Howe and another, minors, by Ruth Howe, their guardian ad litem, and the latter individually, against Whitman County and another. From a judgment for plaintiffs against the named defendant, it appeals. Affirmed in part and reversed in part.
G. A. Weldon and W. L. La Follette, Jr., both of Colfax (Thomas Neill, of Pullman, of counsel), for appellant.
White & Randall, of Spokane (F. B. Danskin, of Spokane, of counsel) for respondents.
This action was brought by Phyllis Howe and Marjorie Howe by their guardian ad litem, Ruth Howe, children of Harold B. Howe, deceased, and by Ruth Howe, widow of Harold B. Howe, deceased, against Peter Zounick, a resident of Spokane county, Wash., and against Whitman county, to recover damages against the defendants as joint tort-feasors, on two causes of action.
The first cause of action is for $5,000 damages for pain and suffering sustained by the deceased from the time of his injury to the date of his death. The second cause of action is for damages sustained through loss by death of Harold B. Howe.
Defendant Zounick was exonerated by the verdict of the jury on his evidence that he drove at 20 miles per hour, and used care, and we have no further concern with him.
As to appellant, Whitman county, the negligence alleged as the cause of the death of Harold B. Howe is that the county failed to keep the Inland Empire Highway running north from Colfax to Spokane, and particularly at a point about 2 1/2 miles north of Stepoe in that county, in a reasonably safe condition for ordinary travel, in that there were ruts in the road on October 31, 1920, which were filled with water, and that defendant Zounick was driving an automobile, in which deceased was riding as a guest of Zounick, in a careless and reckless manner, operating the car without chains, and at a speed exceeding 30 miles per hour, and that by reason of the negligence of Whitman county in not keeping the road in a reasonably safe condition for ordinary travel, and the negligence of Zounick, the automobile was upset, and Harold B. Howe received injuries from which he afterwards died.
The action was commenced and tried in Spokane county. Appellant moved for a change of venue to the superior court of Whitman county on the ground that the defendant is a municipal corporation, and as such has a right to a trial of this action in the superior court of Whitman county. The motion was overruled. Respondents amended their complaint, and to the amended complaint appellant demurred on the ground that the court had no jurisdiction, and on the further ground that the complaint did not state facts sufficient to constitute a cause of action against Whitman county. The demurrer was sustained on the ground that the complaint did not state facts sufficient, and respondents then served their second amended complaint, to which the defendants both answered, and a trial was had thereon, resulting in a verdict in favor of respondents for $5,000 on their first cause of action, and $20,000 on their second cause of action against Whitman county alone. A motion for a new trial was made and denied.
A motion to dismiss the appeal was made by respondents herein, and passed to the merits. It is based upon the fact that the brief of appellant was served four days prior to the serving of the abstract of the record on appeal. That was not a jurisdictional failure, and is not a ground for a dismissal of the appeal. State ex rel. State Bank of Seattle v. Scott, 102 Wash. 510, 173 P. 498; Weiffenbach v. Puget Sound B. & D. Co., 103 Wash. 240, 174 P. 10.
On the appeal appellant urges the following errors: (1) That the court erred in not granting a change of venue; (2) that the superior court of Spokane county had no jurisdiction of the action; (3) that the second cause of action does not state facts sufficient to entitle respondents to a judgment; (4) that the evidence is not sufficient to justify the verdict; (5) that the damages are excessive.
No objections or exceptions were made to any specific instructions of the court, and, having examined the facts, we are of the opinion that the evidence was sufficient to justify the verdict, and that the damages were not excessive, but were within the evidence as to each cause of action, if respondents are entitled to recover in the capacity in which they sue as to either cause of action.
The first error argued by appellant, that the superior court of Spokane county had no jurisdiction to try the case, and should have sent the case to Whitman county on its motion for a change of venue, is based upon the proposition that a county cannot be sued outside of its own boundaries, for negligence in the maintenance of its highways, when a resident of the county which is made the forum county is a codefendant, in good faith. The case of North Yakima v. Superior Court, 4 Wash. 655, 30 P. 1053, is quoted to this effect: That there is no statute in this state regulating the forum in which actions against counties may be brought, and, there being no statute upon the subject, the rule of common law must prevail, and the rule at common law made such corporations suable only in the courts of the county in which they were situated.
In that case there was no codefendant. The suit was solely against the municipal corporation of North Yakima. That case was criticized and modified in the late case of State ex rel. King County v. Superior Court of Pierce County, 104 Wash. 268, 176 P. 352, in which we said:
It is true that in that decision we held that the action was local, and the county of King was therefore liable to answer in the county where the injury occurred; but it will be observed that we also held that the question of place of trial is purely a question of procedure, or of the practice act. This is not a local action under the statute providing that such actions shall be maintained where the subject thereof is situated. ; nor under section 205, Rem. Code, providing for actions to be brought where the cause arose; nor under others for the recovery of penalties imposed by statute, or actions against county officers, etc. This action is purely a transitory action, and may be tried anywhere where jurisdiction may be obtained, and is conferred by existing statutes. Accordingly the statute applying, section 207, Rem. Code, is as follows:
'In all other cases the action must be tried in the county in which the defendants, or some of them, reside at the time of the commencement of the action, or may be served with process, subject, however, to the power of the court to change the place of trial, as provided in the next two succeeding sections.'
There having been a bona fide defendant residing in Spokane county, who was served with process there, the superior court of Spokane county drew jurisdiction to it to try the case against the codefendant charged with the tort, although that codefendant was a public corporation. We have no statutes providing that counties may be sued only within their own jurisdiction, and none that have that legal effect. We therefore conclude that the superior court of Spokane county had jurisdiction to try and determine the cause as against appellant, Whitman county.
We are now confronted with a matter of great difficulty, and of the utmost importance to respondents. Respondents moved in this court for the first time, after the appeal had been taken, and after appellant had made the point that respondents lack capacity to sue as to the second cause of action for $20,000 for the wrongful death of the deceased, which motion was passed to the merits. That motion is that Ruth Howe, administratrix of the estate of Harold B. Howe, deceased, be joined as plaintiff with herself in her individual capacity, and as guardian ad litem of the two minors; or, in the alternative, that Ruth Howe as administratrix of the estate of Harold B. Howe, deceased, be substituted as plaintiff instread of Ruth Howe in her individual capacity and as guardian ad litem for the minors, and that such amendment be ordered that the substitution or joinder be made to relate to the commencement of the action, and apply to all the proceedings herein.
The motion is supported by the affidavits of one of the judges of the superior court for Spokane county, who passed upon the demurrer to the first amended complaint, and of the trial judge, of Ruth Howe as mover, of the attorney for the defendant Zounick in the trial of the cause, and of one of the attorneys for respondent. It is shown by the...
To continue reading
Request your trial