Howells v. North American Transp. & Trading Co.

• Citation: 64 P. 786,24 Wash. 689
• Court: Washington Supreme Court
• Decision Date: 22 April 1901
• Parties: HOWELLS et ux. v. NORTH AMERICAN TRANSPORTATION & TRADING CO.

64 P. 786

24 Wash. 689

HOWELLS et ux. v. NORTH AMERICAN TRANSPORTATION & TRADING CO.

Supreme Court of Washington

April 22, 1901

Appeal from superior court, King county; E. D. Benson, Judge.

Action by Clifford Howells and Anna Gerow Howells against the North American Transportation & Trading Company. Judgment for plaintiffs, and defendant appeals. Reversed.

Bausman, Kelleher & Emory, for appellant.

Allen &amp Allen, for respondents.

PER CURIAM.

This is an action for damages brought by respondents against appellant in the superior court of King county. The respondents are husband and wife, and the appellant, at the time of the injuries complained of, owned and was operating a line of steamers between the ports of Seattle state of Washington, and Dawson City, Northwest Territory, by way of the port of St. Michaels, in Alaska. The respondents were transported as passengers to St. Michaels by the steamer Cleveland, one of the appellant's steamers, and at St Michaels they were transferred to the steamer J. J. Healy another of appellant's steamers. While on board the lastnamed steamer, the respondent Anna Gerow Howells fell through an open hatchway or hold in the cabin of said steamer, which it is alleged was carelessly and negligently left open by appellant, without protection by railing or guards, and with no light or lights in or about the same to give warning thereof. It is alleged that said respondent without fault of her own, received injuries from said fall. The cause was tried by a jury, and a verdict returned for respondents in the sum of $1,500. A motion for a new trial was overruled, and judgment was entered upon the verdict of a jury for the full amount thereof. From said judgment this appeal is prosecuted.

The assignments of error are as follows: '(1) The court erred in refusing to grant a new trial on the ground that the verdict was excessive, or in not requiring plaintiffs to remit at least $1,000. (2) The court erred in charging the jury that the plaintiffs should recover for Mrs. Howells' alleged suffering.'

The seventh and eighth paragraphs of the complaint are as follows: '(7) That by reason of said injuries the said plaintiff Anna Gerow Howells has been permanently injured and did suffer and is constantly suffering from the effects of the said injuries, causing great pain and suffering, and these plaintiffs were compelled to pay a large sum of money for doctor's bills and medicines, to wit, the sum of $250, and whereby by reason of which this plaintiff Clifford Howells was compelled to and did incur large expense and outlay both of time and money in attending to and nursing and caring for his said wife as aforesaid, whereby he was damaged in a large sum of money, to wit, $1,475. (8) That because of said injuries this plaintiff Clifford Howells was deprived of and lost the services of his said wife for a long period of time, to wit, from the 11th day of September, 1897, to the 17th day of September, 1898, to the damage of the plaintiff in the sum of $500.' The complaint then concludes with a prayer as follows: 'Wherefore plaintiffs demand judgment against the defendant in the sum of $1,975, with interest and costs.' In the record we find the following statement of a bill of particulars: 'Come now the plaintiffs, by their attorneys, Allen & Allen, and, by stipulation of the parties, furnish this bill of particulars as to the damages herein under paragraph 7: Medical attendance, $250; time in attending to, nursing, and caring for his said wife, $1,200; medicines and supplies, $75.' This purports to have been signed by respondents' attorneys, and, it is admitted, was delivered to counsel for appellant before the trial. By an inspection of the seventh paragraph of the complaint, above set out, it appears that the specific items of damage alleged are for expenditures for doctor's bills and medicines, and the additional item of expense and outlay both of time and money in nursing and caring for the wife by the husband. The aggregate claim of damage for these items is $1,475. The eighth paragraph of the complaint is limited to damages for loss to the husband of the services of his wife in the sum of $500. The aggregate of the claims for damage in the two paragraphs is $1,975, and the demand for judgment is for that amount. Thus, while it appears from the complaint that the wife endured pain and suffering, yet no claim for damages is laid upon that ground, and counsel for respondents announced in open court at the beginning of the trial that they made no claim for permanent injuries. This analysis of the complaint is supported by the bill...