Stark v. Port Blakely Mill Co.

• Decision Date: 09 November 1906
• Citation: 44 Wash. 309,87 P. 339
• Parties: STARK v. PORT BLAKELY MILL CO.
• Court: Washington Supreme Court

87 P. 339

44 Wash. 309

STARK v. PORT BLAKELY MILL CO.

Supreme Court of Washington

November 9, 1906

Appeal from Superior Court, Mason County; O. V. Linn, Judge.

Action by Samuel Stark, an infant, by W. J. Stark, his guardian ad litem, against the Port Blakely Mill Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Root J., dissenting.

S. P Richardson and Hastings & Stedman, for appellant.

Troy &amp Falknor and L. R. Byrne, for respondent.

DUNBAR, J.

This action was commenced in the superior court of Mason county by a minor 17 years old, against the defendant, a citizen and resident of the state of California. The verdict of the jury was in favor of the plaintiff, the respondent here.

In the original complaint the respondent avers certain injuries amounting to $2,040.50, but prays for only $1,982. Within the time in which the appellant was entitled to plead, it filed its petition and bond for a removal to the United States Circuit Court. Thereupon the respondent moved to amend his complaint, bringing the allegations of the complaint within the demand, which motion to amend was allowed by the court and this is the first error assigned by the appellant. The contention is that, the respondent having shown by his original complaint that his damages claimed amounted to more than $2,000, it was error of the superior court not to grant a removal to the federal court. 1 Enc. Pl. & Pr. 712, is cited to the effect that, where the real amount in controversy is made to appear, it is the all-controlling criterion of jurisdiction, and many cases are cited to sustain the same doctrine. But an investigation of all of the authorities convinces us that a different rule applies in cases where the action is for damages. 'In all actions sounding in damages, the plaintiff is limited by his demand therefor in his declaration or complaint, and can recover no more than the amount specified.' 5 Enc. Pl. & Pr. 712. 'The rule, then, is settled that the demand of the plaintiff in his declarations decides the sum in dispute.' Desbrow v. Driggs, 16 How. Prac. (N. Y.) 346. 'The value of the matter in dispute, for the purposes of removal, is to be determined by reference to the amount claimed in the declaration, petition, or bill of complaint.' Dillon's Removal of Causes, § 93. See, also, Barry v. Edmunds, 116 U.S. 550, 6 S.Ct. 501, 29 L.Ed. 729; De Camp v. Miller, 44 N. J. Law, 617. In any event, the application to amend was submitted to the discretion of the trial court, and, from the whole record in the case, we are satisfied that the discretion was not abused.

At the time the respondent went to work for the mill company, he was instructed as to what his duties should consist of; that is to say, he was to pull the slack for the loaders, to clean bark and dirt off the track, and to stamp the logs. He worked in the performance of such duties until the day before his injury, which occurred when he was attempting to couple one logging truck to another, one of the logging trucks being stationary and the other being pushed up grade by one man at the time of the injury. The contention of the appellant is that the respondent had never been ordered to make couplings and that, therefore, the appellant was not responsible for any injury that happened to him in the performance of the work which was unauthorized. The testimony shows that, on the evening before the accident, Mr. Gill, the agent of the company, told respondent to 'get in and do anything that he saw to be...