State ex rel. Northeast Transp. Co. v. Superior Court of King County

• Citation: 194 Wash. 262,77 P.2d 1012
• Decision Date: 04 April 1938
• Docket Number: 26814.
• Parties: STATE ex rel. NORTHEAST TRANSP. CO. v. SUPERIOR COURT OF KING COUNTY.
• Court: United States State Supreme Court of Washington

77 P.2d 1012

194 Wash. 262

STATE ex rel. NORTHEAST TRANSP. CO. v. SUPERIOR COURT OF KING COUNTY.

No. 26814.

Supreme Court of Washington, En Banc.

April 4, 1938

Original certiorari proceeding by the State of Washington, on the relation of the Northeast Transportation Company, against the Superior Court of King County, Honorable Robert M. Jones Judge, to review the action of the respondent in entering a judgment of dismissal on a motion for nonsuit by defendant R C. Johnson in an action by the Northeast Transportation Company against R. C. Johnson.

Peremptory writ of review denied.

Rummens & Griffin and Frank E. Hammond, all of Seattle, for relator.

Julian O. Matthews and T. M. Royce, both of Seattle, for respondent.

MILLARD Justice.

This proceeding is to review the action of the trial court in entering a judgment of dismissal upon a motion for nonsuit by defendant in the principal action.

Relator is a public service corporation engaged in carrying passengers for hire under certificate of public convenience and necessity No. 471, between a point in Seattle and East 123d street and Sandpoint way, which is north of the city limits of Seattle.

On January 2, 1933, the parties entered into the following contract:

'Memorandum of Agreement

'This Memorandum Witnesseth:

'That the Northeast Transportation Company has employed R. C. Johnson as Superintendent of Transportation of its operations under Certificate 471 Department of Public Works and any extension thereof, for the period of five years from the first day of January, 1933.

'That said company agrees to pay for the services of said Johnson as Superintendent of Transportation all of the net profits arising from Passenger Service under Certificate No. 471. It being understood and agreed that:

'In calculating the net profits all expenses whatsoever incurred in said operation, including the original cost of vehicles and equipment, the rent, repair and maintenance of same; the cost of drivers, gas, oil, bonds, licenses, etc., shall be included in operating expenses and are to be borne by said Johnson.

'Said Johnson agrees to devote his time exclusively to the purposes of the operation of the said company and do all things that are necessary to make the operation successful; including driving when necessary, making or having made all repairs, etc., necessary in the efficient operation of the vehicles of said company; make a daily report with Trip Sheets to the Secretary for making the necessary reports required by the Department of Public Works, etc.

'In case differences arise respecting this contract, both parties hereto agree to each appoint one arbitrator, the two arbitrators are hereby authorized to appoint an umpire, the three persons so appointed to constitute a board of arbitrators whose decisions on the questions in controversy shall be final.

'Executed in duplicate this second day of January, 1933. Superintendent of Transportation Northeast Transportation Co.

'R. C. Johnson

By D. M. Hinman, President.

'[Seal]

By L. L. Goodwin, Secretary.'

Relator alleged in its complaint that on February 24, 1937, its board of directors adopted a resolution withdrawing from R. C. Johnson all authority which he, as superintendent of transportation, had theretofore exercised, except as was specifically enumerated in the contract of employment of January 2, 1933. By virtue of the terms of this resolution he was directed to furnish to the company, at its main office in Seattle, daily reports in writing of the money and tickets received as fares from oassengers carried under certificate No. 471, to deposit at stated periods, in the National Bank of Commerce of Seattle to the credit of relator, all revenues coming into his hands from the above-mentioned transportation system, and to deliver to the general manager of the company on or Before March 1, 1937, an itemized list and inventory of all personal property purchased with corporation funds or belonging to it. Relator also alleged in its complaint that defendant refused to comply with any of the provisions of this resolution.

On March 26, 1937, relator made written demand on Johnson for an accounting. Relator advised Johnson that if it did not hear from him within three days in regard to the matters referred to in the letter, that it would consider he was rejecting its request for an accounting and refusing to co-operate in this and all other matters pertaining to the conduct of the business of relator. It contends that this constituted a tender of arbitration to defendant in the main action pursuant to the terms of the above-mentioned contract.

Relator also alleged that Johnson has arrogated unto himself the entire management and control of relator's business under the aforementioned certificate; that he has refused to comply with the terms of the contract of January 2, 1933; and that he has failed and refused to furnish to the relator the information required under the rules of the department of public service.

Relator further alleged that during the year 1936, it became necessary to operate on its line an additional bus, and that defendant, with relator's funds, purchased a 1936 Kenworth Tri-Coach 29 passenger bus, Model C-21, Motor JXDM 567394, Chassis No. 8709, but instead of taking title thereto in the name of relator, he took title in his own name and executed a mortgage to Seattle Trust & Savings Bank. Relator further alleged that Johnson is about to discontinue operation of the transportation system; that there is imminent danger that its right to certificate No. 471 may be impaired; and that defendant is insolvent and unable to respond to it for any damages which he may occasion by reason of his acts and conduct.

In view of the foregoing, relator prayed that an order to show cause be issued directing defendant to show cause why a temporary injunction should not be issued enjoining him during the pendency of this action from interfering with the regular operation of the busses under certificate No. 471; why he should not be enjoined from collecting revenues belonging to it; why he should not be enjoined from destroying, secreting, or disposing of any of the books, bus tickets, records, or memoranda under his control relating to the operation of the transportation system or any of the busses used in the operation thereof; and that upon final hearing the temporary injunction be made permanent.

Relator further prayed that the aforementioned contract be terminated and canceled; that it be adjudged the owner of the 1936 Kenworth Tri-Coach bus; and that defendant be required to account to it for all sums of money which have come into his possession through revenues derived from the operation of the transportation system.

In his answer the principal defendant denied any violation of the contract and denied all the material allegations of the complaint. He also interposed a separate answer and cross-complaint containing many recitals in which it is alleged affirmatively that relator had made no offer whatever to arbitrate the questions in dispute between the parties. The reply put in issue the affirmative defense.

The principal action is one for purely equitable relief, upon which issue was joined by the principal defendant.

Defendant's motion for nonsuit was granted and the action was dismissed upon the ground that 'plaintiff has not demanded arbitration pursuant to the terms of said contract.'

Error is assigned in adjudging that relator could not maintain an action against the principal defendant upon the issues represented in its complaint without first demanding that the matters therein referred to be submitted to arbitration.

The matter is now Before us on certiorari, the record being accompanied by a bill of exceptions, which recites: '* * * evidence was offered and admitted and the only evidence offered and admitted in said cause in respect of and relating to the matter of arbitration was and is as follows: * * *'

The bill of exceptions consists of eight pages and contains the one assignment of error, the decision of the trial court, the testimony of one of the attorneys relating to the written demand of March 26, 1937, for an accounting, and a resolution of relator's board of directors to the principal defendant under date of March 24, 1937, and the certificate of the trial judge. That certificate to the bill of exceptions states, in part, '* * * that it embodies all of the evidence introduced upon the trial of said cause relating to or pertaining to the matter of arbitration. * * *'

Manifestly, the record Before us is deficient with respect to the matters complained of in relator's complaint, therefore--this being an action for equitable relief--we are precluded from passing upon the question raised by the relator.

In actions for equitable relief, all of the evidence must be brought to this court by a statement of facts. The question whether a bill of exceptions has any place or function in an equity case was foreclosed in this court in 1883. Parker & Boyer v. Denney, 2 Wash.T. 176, 2 P. 351, 352. This court has never receded from the rule there enunciated. We have never held that the rule was changed or in anywise modified by Laws 1893, c. 60, p. 114, § 8, Rem.Rev.Stat. § 388, which provides for certifying of bills of exceptions. There is language in the opinion in Katterhagen v Meister, 75 Wash. 112, 134 P. 673, from which the writer of the syllabus mistakenly assumed that we had departed from the rule announced in Parker & Boyer v. Denney, supra. In Parker & Boyer v. Denney, supra, we said: 'We wish to say further in regard to this notice that it is altogether too prolix from beginning to end. Among other peculiarities we remark that it embodies matters showing that a bill of...