Joski v. Short

• Decision Date: 28 November 1939
• Docket Number: 27619.
• Citation: 96 P.2d 483,1 Wn.2d 454
• Parties: JOSKI v. SHORT.
• Court: Washington Supreme Court

96 P.2d 483

1 Wn.2d 454

JOSKI v. SHORT.

No. 27619.

Supreme Court of Washington

November 28, 1939

Department 1.

Action by Julia Joski, administratrix of the estate of John Joski deceased, against Elizabeth Short for the death of the plaintiff's intestate, who was killed when the motorcycle which he was riding was struck by the defendant's automobile. Judgment for plaintiff on a verdict in the sum of $6,000, and the defendant appeals.

Affirmed.

Appeal from Superior Court, Pierce County; F. G Remann, judge.

Eggerman & Rosling, Walser S. Greathouse, and Joseph J. Lanza, all of Seattle, for appellant.

Robert B. Abel, of Tacoma, and W. H. Abel, of Montesano, for respondent.

MAIN Justice.

This action was brought by Julia Joski, administratrix of the estate of John Joski, deceased, for the benefit of the decedent's mother. The action was begun in Kittitas county where the defendant resided. Thereafter, the plaintiff moved for a transfer to Pierce county, on the ground of convenience of witnesses, and the case was so transferred. The complaint charged that the death of John Joski was caused by the negligence of the defendant. In the answer, the defendant denied the charge of negligence and pleaded contributory negligence on the part of the deceased. In addition to this, she, in effect, pleaded that, if she was negligent, it was not the proximate cause of the death. The cause was tried Before the court and a jury, and resulted in a verdict in the sum of six thousand dollars. The defendant moved for judgment notwithstanding the verdict, and, in the alternative, for a new trial, both of which motions were overruled, and from the judgment entered upon the verdict she appeals.

The facts may be summarized as follows: The accident, which resulted in the death of John Joski, happened October 30, 1937, on the Pacific highway some distance north of the entrance to Fort Lewis. It is not accurate to indicate that the highway at this point runs north and south, because it extends in a general northeasterly and southwesterly direction. For the convenience of expression, it will be referred to as though it extended north and south. The time of the accident was some time in the evening after five o'clock. The witnesses did not fix exactly the same time. It was dark at the time, but there was no rain or mist, and the appellant said that there was 'nothing to distract my vision. My vision is good.'

The deceased was a private in the Army of the United States at Fort Lewis. At the time of the accident, he was proceeding north on a motorcycle. The appellant was proceeding north in a Chevrolet sedan. The sedan and the motorcycle came into collision. The jury had a right to infer that the appellant, in attempting to pass the motorcycle, sideswiped it, though she says that she did not at any time see it and did not know that she had struck the motorcycle until she had proceeded about one hundred feet farther, parked her car on the left side of the road, and returned to the place of the accident.

Without reviewing the evidence in further detail, there can be no question but that the jury had a right to find that the two vehicles came together. John Joski was so severely injured that he never regained consciousness and died Before he reached the hospital. As above indicated, the action was brought for the benefit of the mother of the deceased, on the theory that she was, at least in part, dependent upon him for support.

The appellant first contends that it was error for the trial court to transfer the case from Kittitas county to Pierce county, on the ground of the convenience of witnesses. All the witnesses, with the exception of the defendant who lived in Kittitas county, and the respondent and her mother whose residence was in Pacific county, resided in Pierce county, with a possible exception of one referred to as residing in the city of Olympia, in Thurston county.

Rem.Rev.Stat. § 205-1, provides that an action may be brought in any county in which the defendant resides at the time of the commencement of the action. Section 209 provides that the court may, on motion, '* * * in the following cases, change the place of trial, when it appears by affidavit or other satisfactory proof,--* * * 3. That the convenience of witnesses or the ends of justice would be forwarded by the change; * * *.'

The appellant asserts that this statute is permissive only, and that the respondent, by bringing the action in the first instance in Kittitas county rather than in Pierce county, waived her right to have it transferred to the latter county. It has been repeatedly held by this court that one who is sued in a county other than his residence is entitled, as a matter of right, to a change of venue, if the action be a transitory one. State ex rel. Martin v. Superior Court, 97 Wash. 358, 166 P. 630, L.R.A.1917F, 905; State ex rel. Schlosberg v. Superior Court, 106 Wash. 320, 179 P. 865; State ex rel. Merritt v. Superior Court, 147 Wash. 690, 267 P. 503. Had the action been brought in Pierce county, the appellant could have insisted upon it being transferred to Kittitas county, her residence. The bringing of the action in the county where the appellant was entitled to have it brought, under the law, could not operate as a waiver of the right of the respondent to subsequently move for a transfer on the ground of the convenience of witnesses.

Determining whether a transfer should be made rests somewhat within the discretion of the trial court. State ex rel. Ross v. Superior Court, 132 Wash. 102, 231 P. 453. There is nothing in this case which would indicate that the trial court did not properly exercise its discretion in ordering the transfer.

The appellant next contends that the demurrer which she interposed to the complaint should have been sustained; this, on the theory that the complaint did not allege that John Joski was unmarried and left surviving him no wife, child, or children. It is admitted that such an allegation was necessary in order to state a cause of action. This defect in the complaint was not specifically pointed out prior to the time that the case went to the jury and the appellant was taking her exceptions to the instructions. It is true that one of the grounds of the demurrer is 'that the complaint does not state facts sufficient to constitute a cause of action.' When the matter was called to the attention of the court at the time stated, this occurred: In Instruction No. 13, as it originally read, it was stated that the deceased, John Joski, had never been married during his lifetime. Counsel for the appellant then stated: 'I do not recall that there is evidence of the boy not being actually married.' To this the trial judge replied: 'My understanding is that the whole case has been tried on the theory that he was not married, and I assumed that there was no controversy about that'; to which counsel for the appellant replied: 'If the instructions of the Court tell the jury that he is unmarried, I will not except to that.' Upon this state of the record, we think the appellant did not have a right to insist upon her demurrer to the complaint.

We now come to the merits upon which the appellant first contends that Bessie Joski, mother of the deceased, was not dependent upon her son for support. The evidence shows that, when John Joski was nine years old and the family was residing in Raymond, in Pacific county, he began selling newspapers and doing odd jobs for which he received compensation, and this money he turned over to his mother. He enlisted in the Army August 22, 1936, and during the month of October following he sent his mother forty dollars, and every month thereafter until the time of his death he sent sums varying from fifteen to thirty dollars. At the time of her son's death, Mrs. Joski was employed to do housework for a family in Tacoma, for which she received twenty dollars per month, and her board and lodging. A doctor testified that, due to her condition of health, her efficiency was impaired about thirty-five per cent. She had an affliction of the heart which, when she did hard work, gave her a great deal of trouble. To sustain a recovery upon the ground of dependency, it was necessary for the respondent to establish that she was, at the time of her son's death, substantially dependent upon him for support, and, also, that this dependency was recognized by the son by his contributing to her support, not merely by way of causal gifts from son to mother, but in...