Richardson v. Carbon Hill Coal Co.

• Decision Date: 14 January 1895
• Citation: 10 Wash. 648,39 P. 95
• Court: Washington Supreme Court
• Parties: RICHARDSON v. CARBON HILL COAL CO. [1]

39 P. 95

10 Wash. 648

RICHARDSON v. CARBON HILL COAL CO. ^[1]

Supreme Court of Washington

January 14, 1895

Appeal from superior court, Pierce county; John C. Stallcup, Judge.

Action by Albert W. Richardson against the Carbon Hill Coal Company to recover for personal injuries. From a judgment for plaintiff, defendant appeals. Reversed.

John P. Judson, for appellant.

Crowley Sullivan & Grosscup and C. W. Seymour, for respondent.

ANDERS J.

The appellant is a corporation, and in the year 1890, and for some years prior thereto, it owned and operated certain coal mines at Carbonado, in this state. It was also the owner of a narrow-gauge railroad, which it constructed and used for the purpose of transporting its coal to a station on the Northern Pacific Railroad, about three-quarters of a mile distant from its mines. On or about the 24th day of January, 1890, the respondent was employed by the company to assort or clean coal at its coal bunkers, with the understanding that he should work whenever required, and be paid by the day when engaged at said work. On April 15, 1890, the respondent while riding through a tunnel on a brake beam in front of one of the company's engines, was struck by a projecting rock, and thereby seriously injured. He was taken to the house of his brother-in-law, and there treated by Dr. Garner, a physician and surgeon, who had been theretofore employed to treat professionally all persons who might be injured while in the service of the company. Upon examination the doctor found that the respondent's left leg was broken about eight inches from the hip joint, but did not discover any other injury in or about the hip. The doctor treated this fracture until about the middle of July, at which time he deemed the respondent cured, the fractured bones being then united. Subsequently the respondent instituted an action against the coal company to recover damages for the injury sustained while riding upon the locomotive engine, and also for further injury by reason of negligent and unskillful treatment by Dr. Garner. The cause proceeded to trial, and at the close of the plaintiff's testimony on motion of the defendant (which motion was in form a motion for a nonsuit), the court directed the jury to find a verdict for the defendant. From this order and judgment the plaintiff appealed.

Upon the trial here this court determined that the plaintiff was not entitled to recover for the injury sustained in the tunnel, because it was apparent from the record that he was himself guilty of contributory negligence. As to the first cause of action, the ruling of the trial court was, therefore, sustained. But, although we found the proof too uncertain and meager to determine satisfactorily what were the rights of the plaintiff under his cause of action for injuries sustained on account of alleged negligent and unskillful surgical treatment, we came to the conclusion that the evidence upon that branch of the case should have been submitted to the consideration of the jury, and accordingly remanded the cause for a new trial, with leave to file new pleadings. See 6 Wash. 52, 32 P. 1012. The plaintiff thereupon filed an amended complaint, stating, but not separately, the same causes of action which were set up in his original complaint. The defendant moved the court to strike out certain paragraphs and portions of the complaint, on the ground that the same were irrelevant, immaterial, and redundant. This motion was overruled, and the defendant excepted. Thereafter the defendant answered, and the cause was tried, resulting in a verdict and judgment for plaintiff.

It appears that the appellant corporation, in conducting its business, usually employed several hundred men; and the proof shows that it was the custom of the paymaster of the company to retain one dollar per month from the wages of each employé, and that the money so realized was kept as a special fund for the payment of the expenses of the hospital and the salary of the physician employed to attend and treat sick and disabled employés and their families, and was disbursed by him whenever required for those purposes. None of the money was used by the company in transacting its business, nor did it in any way derive any profit from it. The respondent paid one dollar per month (which was charged to his account as "Hospital") out of his wages while in the service of the company, without objection, and without asking for any information as to the purpose for which it was to be used but he seems to have understood from others that it was to be applied towards the payment of the doctor in case of sickness or injury of employés. We think the court committed no error in refusing to strike out portions of the complaint on the ground stated in the motion. Where a complaint sets forth two causes of actions, which may properly be joined, without separately stating them, as required by the Code, the proper remedy is a motion to require plaintiff to make his complaint more definite and certain by stating separately his several causes of action. Pom. Code Rem. § 447; Boone, Code Pl. § 266. And, besides, the paragraphs sought to be stricken out are all essential allegations in the only cause of action stated in the complaint which, according to the claim of appellant, has not already been determined by this court. The paragraphs objected to could not be stricken out without giving the motion the effect of a general demurrer, for, without them, the complaint would state no cause of action for surgical malpractice. This case was tried by the court below upon the theory that the complaint states two causes of action, and that the first cause of action, based upon the alleged negligence of the defendant, by reason of which plaintiff was injured, had been determined adversely to the plaintiff by this court. It was the rule contended for by counsel for the defendant, and he here insists, that the court erred in permitting counsel for the plaintiff, in opening his case, to state to the jury, over defendant's objection, certain facts and circumstances which he expected to prove to sustain the first cause of action, and in permitting the plaintiff to introduce evidence before the jury to prove the facts therein alleged. Just what the remarks of counsel were to which objection was made by the defendant we are unable to ascertain, as they do not appear in the record, and we are therefore unable to determine whether they were improper and prejudicial or not. But we think it was error, under the circumstances, to permit evidence to be introduced showing the rate of speed at which the engine upon which the plaintiff was seated when he was injured was driven into the tunnel by defendant's underground foreman, and the outcry of the plaintiff when he was thrown to the ground, and other like matters. All such testimony was clearly irrelevant to the issues which were finally submitted...