Northern Grain & Warehouse Co. v. Holst

• Decision Date: 16 March 1917
• Docket Number: 13768.
• Citation: 163 P. 775,95 Wash. 312
• Court: Washington Supreme Court
• Parties: NORTHERN GRAIN & WAREHOUSE CO. v. HOLST et al.

163 P. 775

95 Wash. 312

NORTHERN GRAIN & WAREHOUSE CO. v. HOLST et al.

No. 13768.

Supreme Court of Washington

March 16, 1917

Department 1. Appeal from Superior Court, Pierce County; M. L. Clifford Judge.

Action by the Northern Grain & Warehouse Company against C.J. Holst and others. Judgment dismissing the complaint, and plaintiff appeals. Affirmed.

Coy Burnett, of Portland, Or., for appellant.

Stephen V. Carey, of Spokane, Ballinger, Battle, Hulbert & Shorts, of Seattle, and J. A. Sorley, of Tacoma, for respondents.

MORRIS J.

It is sought in this action to recover damages claimed to have been sustained by the appellant because of the failure of certain of the respondents to perform certain official duties. The respondent Holst is a former chief inspector of the state grain department. Respondents Wilson, Lee, and Jones are former members of the Public Service Commission. Respondents surety companies were sureties upon the official bonds of these officials. The case below was heard upon a demurrer to the amended complaint, which the lower court sustained. Appellant electing to stand upon its complaint, the action was dismissed, and appeal was taken.

The amended complaint, briefly stated, alleged that in August 1912, licenses were issued to one A. E. Nichols under the so-called grain inspection act to operate grain warehouses at Adrian, Wilson Creek, and Wheeler for a period of one year from July 1, 1912; that said licenses were issued carelessly knowingly, and negligently by the principal respondents without obtaining a bond from Nichols, and thereafter the said respondents permitted Nichols to openly conduct said warehouses as public warehouses without exacting from him a bond; that under his licenses Nichols received certain grain for storage and issued negotiable warehouse receipts therefor which in the course of business passed into the hands of appellant; that on April 10, 1913, appellant made demand upon Nichols for the grain which was represented by the receipts which it held, which demand Nichols was unable to comply with, having disposed of the grain. It is then alleged that under the rules of the Public Service Commission it was the duty of the principal respondents to have required the bond from Nichols and to have prevented him from continuing in business under his licenses without the giving of a bond. Nichols is alleged to be insolvent, and damage is alleged to have been sustained by appellant in the amount of the value of the grain wrongfully converted. To this amended complaint a demurrer was imposed by all of the defendants upon the grounds: First, that sufficient facts were not stated to constitute a cause of action; and, second, that the action was barred by the statute of limitations. Other grounds of demurrer were pleaded, but these two were the only ones urged in the court below and are the only ones urged here.

The case has been ably presented to us both in the briefs and on oral argument upon both questions submitted by the demurrer. But inasmuch as we all agree that the cause of action as pleaded is barred by the statute of limitations, we will discuss that question alone. The cause of action pleaded arose on April 10, 1913, when appellant made its demand upon Nichols for the grain represented by its receipts. Upon the refusal of that demand, appellant could have brought its action, and, the cause of action then being complete, the statute of limitations began to run from that date. Suit was commenced after the expiration of two years but within three years from April 10, 1913, so that the question now is: Does the two-year statute or the three-year statute govern.

The three-year statute in so far as it is here applicable is Rem. Code, § 159, subd. 2, reading:

'Within three years, * * * (2) an action for taking, detaining, or injuring personal property, including an action for the specific recovery thereof, or for any other injury to the person or rights of another not hereinafter enumerated;'

And subdivision 3:

'(3) An action upon a contract or liability, express or implied, which is not in writing, and does not arise out of any written instrument.'

The two-year statute is Rem. Code, § 165, as follows:

'An action for relief not hereinbefore provided for shall be commenced within two years after the cause of action shall have accrued.'

If full effect be given to appellant's argument, section 165 has no force or application in the law of this state and is a useless and nugatory enactment, for it is contended that the language of subdivision 2 of section 159 embraces all causes of action in which it is sought to recover for any injury 'to the person or rights' of the plaintiff. No cause of action arises in law until the plaintiff's person or property rights have been invaded. It is manifest that this subdivision, if given appellant's construction, would apply to all causes of action irrespective of their nature and would embrace those causes of action provided for in other subdivisions of section 159 as well as those provided for in section 165 and other limitation statutes. That this was not the intention is manifest. Each subdivision of section 159 was intended to apply to particular forms of action which it was therein sought to enumerate, and section 165 was intended as a blanket provision to cover all other causes of action not specifically enumerated in prior sections. This being so, we must read subdivision 2 as applying only to certain direct invasions of personal or property rights not otherwise 'hereinafter enumerated,' and as not including those numerous causes of action recognized by the law, among which must be included the one here pleaded if existing at all where the law imposes a liability because of indirection or default. The cause of action here pleaded is indirectly based upon the failure of public officials to perform duties imposed by law. It is not based upon any direct act of these officials injuring appellant's personal property or property rights. Nor, as we shall hereafter see, is it directly based upon the failure to perform a legal duty. In Quaker City Nat. Bank v. Tacoma, 27 Wash. 259, 67 P. 710, relied upon by appellant, a warrant holder sought to recover against the city because of its misappropriation of the fund against which the warrant was drawn. The act alleged was in effect an injury to the property rights of the warrant holder caused by the direct act of the city officials in wrongfully appropriating the fund out of which the warrant was payable. Conceding this, it might well be doubted whether such an injury to property 'or rights of another' is of the character referred to in subdivision 2. The opinion, however, does not proceed upon this reasoning, nor does it make any distinction between the three and two year statute, since the action was brought after the expiration of three years from the act complained of and was clearly barred irrespective of whether the cause of action fell within the two or three year statutes. In Robinson v. Baltimore & Seattle Min. & Red. Co., 26 Wash. 484, 67 P. 274, also cited by appellant, it was held that this subdivision applied to...