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

• Decision Date: 23 May 1918
• Docket Number: 13951.
• Court: Washington Supreme Court
• Parties: PUGET SOUND TRACTION, LIGHT & POWER CO. v. GRASSMEYER et al.

173 P. 504

102 Wash. 482

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

No. 13951.

Supreme Court of Washington

May 23, 1918

Department 2. Appeal from Superior Court, Whatcom County; Ed. D. Hardin Judge.

Action by the Puget Sound Traction, Light & Power Company against J H. Grassmeyer and others. From a judgment of dismissal plaintiff appeals. Reversed and cause remanded, with instructions to proceed as directed.

Newman & Kindall and Clinton W. Howard, all of Bellingham, for appellant.

R. W Greene and Morris J. Schwartz, both of Bellingham, for respondents.

FULLERTON J.

The appellant, as plaintiff, began this action in the court below, seeking injunctive relief. It divided its complaint into two causes of action. In the first it alleged in substance that it now is, and that it and its predecessor in interest for many years past have been, operating, under valid franchises having many years yet to run, a system of street railways for carrying passengers in the city of Bellingham, which it has constructed and equipped at a cost exceeding $1,000,000; that it operates its street cars on convenient schedules, in compliance with its franchises and the laws of the city of Bellingham as expressed in its ordinances and the laws of the state of Washington as expressed in its statutes, and will continue to do so unless compelled to cease operations through losses caused it by the action of the defendants; that the city of Bellingham enacted an ordinance which, among other things, defines jitney bus operation, prescribes an occupation tax for each bus and each driver thereof, and makes it unlawful to engage in that business without obtaining a license and permit so to do; that none of the defendants have complied with the requirements of the ordinances; that they have been, for many months prior to the filing of the complaint, using, operating, and driving motor propelled vehicles as jitney busses in violation of the ordinance and in disregard of its provisions and in such manner as to constitute a nuisance; that their action is specially injurious to the plaintiff, in that they run at excessive rates of speed and dart in front of the plaintiff's cars, thus compelling them to stop suddenly to avoid collisions; that they run dangerously close to the cars when stopped to receive and discharge passengers, thus endangering the lives of such passengers; that they pick up and carry passengers who would otherwise ride on the plaintiff's cars, thus causing a loss of revenue from $75 to $100 per day; that if the operation of the defendants is permitted to continue the losses suffered by the plaintiff will compel it to cease operating its street cars, to its irreparable loss and damage and to the damage of the people of the city of Bellingham. The second cause of action sets forth the same state of facts as the first, with the exception that the law alleged to be violated by the defendants in chapter 57 of the acts of the Legislature of the state of Washington for the year 1915, in that they have not procured and filed the bond therein required as a condition precedent to the operation of motor propelled vehicles in cities of the first class. On filing its complaint the plaintiff sought a temporary injunction, which was granted upon its second cause of action and denied as to the first. The defendants then demurred to the complaint, which demurrer being overruled they answered, making certain denials and setting up four affirmative defenses.

In the first affirmative defense it is alleged that the defendants operate their motor propelled vehicles as automobiles for hire and not as jitney busses or auto stages; that they operate both within and without the city of Bellingham and in part on streets and highways not covered by the plaintiff's railway tracks; that they have procured and operate under 'For Hire' licenses from the state of Washington issued pursuant to chapter 142 of the Session Laws of 1915, and have obtained and hold 'taxi' licenses from the city of Bellingham; that to confine their business within the scope of the ordinance set forth in the plaintiff's complaint would render the business unprofitable; and 'allege and aver that plaintiff well knows that the business of the defendants and each of them would be utterly and totally destroyed if defendants entered into the contract and agreement with the city of Bellingham prescribed in said alleged ordinance;' and that the sole object and purpose of plaintiff in prosecuting this action is to attempt to compel the defendants, through litigation, to abandon their business. In the second defense the matters set forth in the first are adopted and made a part thereof by reference. It is then alleged that the nature of the business carried on by the defendants is a public service in the line of transportation for hire to the public generally; that the defendants and each of them in rendering such service use the public highways of the city of Bellingham and Whatcom county generally; that pursuant to the Constitution and the laws of the state of Washington municipal corporations, including cities of the first class, are prohibited from granting exclusive franchises and monopolies; and that the ordinance set forth in the plaintiff's complaint grants an exclusive franchise and monopoly, and was not otherwise passed pursuant to the charter of the city. The third defense refers to and adopts by reference the allegations of the first and second defenses, and sets up as new matter the inability of the defendants at any reasonable cost to produce the bonds required by chapter 57 of the Laws of 1915. The fourth affirmative defense adopts and incorporates therein by reference the allegations of the three preceding defenses, and further sets up that the plaintiff itself operates motor propelled vehicles in the city of Bellingham in violation of law; that it entered into agreements with certain of the respondents under which the differences between them concerning their several rights might be tested in the courts, which the plaintiff violated, and avers that for these reasons it is not in court in its present action with clean hands.

Demurrers were interposed by the plaintiff to the several affirmative defenses. These were sustained in part and overruled in part, whereupon the plaintiff filed a reply containing admissions and denials and new matter in explanation and avoidance. A demurrer to much of the new matter was interposed by the defendants, on which no separate ruling was made by the court. The parties thereupon entered into the following stipulation:

'It is stipulated between the parties hereto by their respective attorneys as follows:

'(1) It is the contention of the defendants that the bond required to be filed with the secretary of state by chapter 57 of the legislative acts of the state of Washington for the year 1915 is to secure against personal injury only, and that the plaintiff is not a beneficiary in any bond required to be filed by such act, and (a) that by reason thereof the plaintiff is not entitled to maintain the second cause of action set forth in its complaint as the facts therein alleged are insufficient to constitute a cause of action, and (b) that for the same reason, since Ordinance 2543 makes it a condition precedent to the issuance of a jitney bus license, as well as to the issuance of a driver's permit, that the applicant must have first filed the bond and obtained the permit required by such act of the Legislature, the plaintiff is not entitled to maintain the first cause of action set forth in its complaint, as the facts therein alleged are insufficient to constitute a cause of action.

'(2) It is the contention of the plaintiff that irrespective of whether such bond is to secure against personal injury only, and irrespective of whether the plaintiff is or is not a beneficiary in any bond required to be filed with the secretary of state by chapter 57 of the legislative acts of the state of Washington for the year 1915, the plaintiff is entitled as a matter of law upon the facts alleged in its complaint and in its reply to the defendants' amended answer to maintain each of the causes of action set forth in its complaint, and that the facts alleged in each are sufficient to constitute respectively a first and second cause of action as set forth in such complaint.

'(3) Should the court be of the opinion that the contentions of the defendants as set forth in paragraph 1 hereof are well founded in law, it may treat the demurrers of the defendants to the 'Reply to Amended Answer' (filed under one cover October 5, 1916) as a demurrer to the complaint and reply, and in the event such contentions of the defendants and such demurrers are sustained, that the plaintiff be allowed an exception as to each contention and each demurrer sustained, as well as an exception to the court's failure to sustain the contention of the plaintiff set forth in paragraph 2 hereof.

'(4) Should the court be of the opinion that the contentions of the defendants as set forth in paragraph 1 hereof are not well founded in law, but that the contention of the plaintiff as set forth in paragraph 2 hereof is well founded in law, and should the court overrule such contentions of the defendants and such demurrers, an exception is to be allowed to the defendants as to each contention and each demurrer so overruled, as well as an exception to the court's failure to sustain the

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