Longmore v. Puget Sound Traction, Light & Power Co.

• Decision Date: 10 March 1914
• Citation: 78 Wash. 468,139 P. 191
• Court: Washington Supreme Court
• Parties: LONGMORE et al. v. PUGET SOUND TRACTION, LIGHT & POWER CO.

139 P. 191

78 Wash. 468

LONGMORE et al. v. PUGET SOUND TRACTION, LIGHT & POWER CO.

Supreme Court of Washington

March 10, 1914

Department 2. Appeal from Superior Court, King County; Mitchell Gilliam Judge.

Action by Florence H. Longmore and another against the Puget Sound Traction, Light & Power Company. From a judgment for plaintiffs, defendant appeals. Reversed, with directions to dismiss the action.

Where plaintiffs did not pursue the remedy prescribed by Rem. &amp Bal.Code, § 133, for changing attorneys, but notified their attorney and defendant in a prior action that he was dismissed, it was an attempt to discharge him, and the action pending when they brought a new one might still become vexatious, because he might note it for trial.

Jas. B Howe and A. J. Falknor, both of Seattle, for appellant.

C. J. Beedle, of Seattle, for respondents.

MOUNT J.

The plaintiff recovered a judgment against the defendant for personal injuries. The defendant has appealed.

On September 24, 1912, the respondents were passengers upon a street car operated by the appellant. On that date the street car collided with a railway train at a crossing, resulting in the alleged injury to Mrs. Longmore. On September 30, 1912, the respondents employed one S. Ross Parker as their attorney. The employment was in writing, and is as follows:

'Seattle, Washington, September 30, 1912.

'We hereby authorize S. Ross Parker to act as our attorney in prosecuting our claims for damages for personal injuries against the Seattle Electric Company. Our said attorney is to present our joint claim for $10,000 damages, and no settlement is to be made without the mutual consent of ourselves and our said attorney, who is to have as his fee in full one-third of whatsoever amount may be recovered by us by suit or otherwise in settlement of our said claims. Said Parker to pay all costs.

'T. V. Longmore.

'Florence H. Longmore.

'I accept the above attorneyship.

'S. Ross Parker.'

On October 14, 1912, Mr. Parker, as attorney for the respondents, brought an action for damages against the appellant. The complaint is in the usual form in such cases, and states a cause of action. This complaint, together with the summons, was served upon the appellant on October 14, 1912. Thereafter, on October 25th, the respondents addressed a letter to Mr. Parker as follows:

'Seattle, Wash., October 25, 1912.

'Mr. S. Ross Parker, 423 New York, Block, Seattle, Wash.--Dear Sir: You are hereby dismissed from any further services as our attorney in either our will case or our injury case against the Electric Company, because you have failed to justly represent us as an attorney. You have injured our case by sending a certain letter to the Electric Company, which states that you refuse to ask for more than twelve hundred dollars ($1,200) as a complete settlement for our injuries, and that same letter contained other statements damaging to our case, and that same letter is proof that you are not acting for our interests in the case. There are many more facts we could mention. We will allow you a reasonable fee for what you have done to date in the will case only when we get the estate settled. Very truly yours, T. V. Longmore. Florence H. Longmore.'

A copy of this letter was served upon the appellant on October 26, 1912. Thereafter, on November 1st, the appellant prepared its answer in the action brought by the respondents. A copy of this answer was served upon Mr. Parker, and upon each of the respondents personally, and also upon their present attorney. The summons and complaint in that action were not filed in court. The answer was filed immediately after service.

Thereafter, on December 7, 1912, the respondents brought this action, alleging the same facts which were set up in the previous action, and alleging damages arising out of the same accident. This complaint alleged that the respondents were charged with the support of five minor children, whose ages were from 4 to 16 years. The appellant moved to strike the paragraph containing this allegation from the complaint, which motion was denied. Thereupon an answer was filed, denying any liability on account of the accident, and alleging, as an affirmative defense and as a plea in abatement, that another action was pending between the respondents and the appellant for the same cause of action set up in the respondents' complaint.

At the close of the evidence, which showed the facts as above stated, the appellant moved the court to instruct the jury to return a verdict for the appellant because of the pendency of another action between the same parties. At the same time the respondents moved the court that all testimony in reference to the pendency of another action be withdrawn from the jury. The former motion was denied; the latter was granted. Thereafter the jury returned a verdict in favor of the respondents. The appellant thereupon moved the court for judgment dismissing the complaint, notwithstanding the verdict, on account of the pendency of a prior action, which motion was denied, and judgment entered in favor of the respondents.

Upon the trial of the cause it was admitted by the respondents that they signed the contract employing Mr. Parker as heretofore set forth. They denied, however, that they had signed the complaint in the former action. We think the great weight of the evidence is to the effect that they did sign the complaint; but, assuming that they did not, it is clear from the contract above set out that they employed Mr. Parker as their attorney to prosecute the action, and under that authority he prepared and served a summons and complaint upon the appellant, and that the appellant prepared an answer to that complaint, which answer was served upon all parties interested, and was thereupon filed in court.

The statute (Rem. & Bal. Code, § 259) provides:

'The defendant may demur to the complaint when it shall appear upon the face thereof, either * * * 3. That there is another action pending between the same parties for the same cause. * * *' And at section 261: 'When any of the matters enumerated in section 259 do not appear upon the face of the complaint, the objection may be taken by answer.'

The fact that there was another action pending between the same parties did not appear upon the face of the last complaint, and the objection was taken by answer which states the facts. It was plainly the intention of the statute that two actions for the same cause should not be pending at the same time.

The trial court, when the motion to dismiss was made, was of the opinion that this action was controlled by the case of Harris v. Fidalgo Mill Co., 38 Wash. 169, 80 P. 289 where we said: '* * * It is not enough to show that another action is pending; but it must appear that such other action would be liable to become vexatious, and also that full relief could have been obtained in the former action.' But we think that case does not...