State ex rel. Western Canadian Greyhound Lines v. Superior Court for King County, 30032.

• Decision Date: 19 December 1946
• Docket Number: 30032.
• Citation: 26 Wn.2d 740,175 P.2d 640
• Parties: STATE ex rel. WESTERN CANADIAN GREYHOUND LINES, Limited, v. SUPERIOR COURT FOR KING COUNTY.
• Court: Washington Supreme Court

175 P.2d 640

26 Wn.2d 740

STATE ex rel. WESTERN CANADIAN GREYHOUND LINES, Limited, v. SUPERIOR COURT FOR KING COUNTY.

No. 30032.

Supreme Court of Washington

December 19, 1946

Department 1

Original proceeding in prohibition by the State of Washington, on the relation of Western Canadian Greyhound Lines, Limited against the Superior Court of the State of Washington for King County, Honorable Robert M. Jones, Judge, to prevent and prohibit the Superior Court for King County from taking jurisdiction of a certain action instituted by L. M. Norton and other against relator.

Writ granted.

MALLERY J., dissenting.

Ballinger Hutson & Truscott, of Seattle, for relator.

Mifflin & Mifflin, of Seattle, for respondents.

JEFFERS Justice.

This is an original application for a writ of prohibition made to this court by Western Canadian Greyhound Lines, Limited, a corporation (hereinafter referred to as relator), to prevent and prohibit the superior court for King county, Honorable Robert M. Jones, Judge, taking jurisdiction of a certain action instituted by L. M. Norton et al. against relator in the superior court for King county, being No. 372173 of the files of that court. The plaintiffs in the action are all residents of King county, Washington, and the defendant (relator herein) is a foreign corporation, organized and existing under and by virtue of the laws of the Dominion of Canada, with its principal place of business in Calgary, province of Alberta.

The cause of action, as set out in the complaint, was based upon a claim for damages to the persons and property of plaintiffs, as the result of a collision which is alleged to have occurred in the province of British Columbia.

As above stated, plaintiffs' action was commenced in the superior court for King county. The summons was served upon one of relator's stage drivers, as agent of relator, in Ferry county, Washington.

Respondent court has filed a demurrer to the application for the writ, upon the ground that the application does not state facts sufficient to constitute any cause for relief sought by relator.

Upon the filing of the application for the writ, a show cause order was issued to the lower court, requiring it to appear on August 30, 1946, and show cause, if any it had, why a writ of prohibition should not issue as prayed for by relator, and why such court should not be prohibited and restrained from overruling the motion of relator to quash the service of summons.

We are of the opinion that, under rule 30, Rules of Court (18 Wash.2d page 27-a), effective March 2, 1944, one who is required to show cause on the filing of an application for an original writ is required to show any and all the causes he or it may have why the writ should not issue. In other words, the rule does not contemplate that the hearing on the application may be presented piecemeal. It is true that at the hearing he way question the sufficiency of the application or otherwise move against it, but in our opinion he must bring to this court all the record which he deems necessary for a determination of the question of whether or not the writ should issue, so that if any contention which may be made as to the sufficiency of the application is held not to be well founded, this court may decide the principal question of whether or not the writ should issue.

In the instant case, as stated, a demurrer to the application was filed, and no other return was made in answer to the show cause order. However, we have Before us, as a part of the application, all the affidavits which were read in support of and in opposition to the motion to quash the service Before the trial court, and the application even refers to, and by reference makes a part thereof, the affidavit of Osee W. Noble, which affidavit was not filed until after the hearing on the motion to quash.

In view of the situation here presented, we are of the opinion we have Before us all the facts which were or could be presented in connection with the question of whether or not the trial court erred in refusing to grant relator's motion to quash the service of summons and whether or not the trial court had jurisdiction to hear and determine the issues which might be presented in the action.

As we read the record Before us, there is no dispute as to the facts, except as to whether relator used the highways of this state only during the time its regular route was closed because of snow, or used such highways at other times also.

The undisputed facts, with the exception above noted, may be stated as follows: Relator is engaged in the business of operating stages for the carriage of passengers and express for hire within the Dominion of Canada. It is not qualified to do business in the state of Washington. Relator has never appointed an agent within the state of Washington, as required by Rem.Rev.Stat. § 3854, or at all. While the ordinary routes of relator's stages are wholly within the Dominion of Canada, at certain seasons of the year a portion of one of these routes becomes wholly or substantially impassable by reason of snow conditions, and as a result, three of its stages proceeding from one Canadian point to another detour from their ordinary course from Trail, to Rossland, to Patterson, B. C., thence across the United States boundary to Northport, Washington, and thence back into Canada via Laurier, Washington, to Cascade Junction, B. C., the distance operated within the state of Washington on this detour being approximately eighty miles.

In order to enter the United States and return to Canada, relator has been required to post, and has posted, with the United States customs department, a carrier bond or bonds conditioned, in effect, that it shall not discharge or take on passengers or goods within the United States, and on entering the United States, relator's baggage compartments on all stages are sealed, and a manifest of passengers is issued, the baggage compartments remaining sealed until such stages reenter Canada. No passengers are, or ever have been, taken on or discharged, nor have goods of any kind been received or discharged within the state of Washington from any stage operating over such route.

There are three stages which operate over this route, each in charge of a driver whose sole duty within this state is to drive the stage. Such driver neither has, nor has he had, authority to pick up or discharge passengers or goods, or to collect any money within this state, or to perform any other service except such as is necessary to drive the stage.

In order to avoid interference with its use of highways in the state of Washington, relator, in 1945, applied for and received from the department of public service of the state of Washington, and now has, a certificate for the operation of three stages, in the nature of a certificate of convenience and necessity, which by its terms authorizes relator '* * * to furnish interstate passenger and express service only between Patterson, B. C. and International Boundary near Laurier, Washington via State Road No. 22 through Northport and Kettle Falls, thence via State Road No. 3.' The certificate contains the following provision:

'Limitations: No service shall be rendered under this certificate from, to or between points in the State of Washington.'

To procure this certificate, relator filed with the department an insurance policy such as is required by the laws of the state of Washington for common carriers of passengers by motor vehicles. Relator likewise secured from the director of licenses a license to operate each of the three stages above referred to.

On December 9, 1945, a station wagon belonging to some of the plaintiffs in the action commenced in King county came into collision with one of relator's stages, on one of the public highways of British Columbia, commonly known as the Caribou Road, as a result of which it is claimed by plaintiffs that the station wagon was damaged and depreciated in the sum of $1,082.84, and that the cost of transporting the same from British Columbia to Seattle was $152.69; that Wally Soderberg, one of the plaintiffs, received certain physical injuries, to his damage in the sum of $5,540; and that plaintiff Lauren Gallagher received physical injuries, to his damage in the sum of $1,900. It was to recover the damages above referred to that plaintiffs commenced an action by filing their complaint in the superior court for King county, which complaint was never served upon relator or any of its officers or agents, and by causing a summons to be served in Ferry county, Washington, upon a driver of one of relator's stages, while such driver was operating a stage over the detour hereinBefore referred to.

Relator, believing that it was not and is not subject to the jurisdiction of the superior court for King county, and that the purported service of summons was void, appeared specially in such court, and moved to quash the service of summons, filing the affidavits of W. J. Truscott and Duncan Robertson in support of the motion. In opposition to this motion, plaintiffs filed the affidavits of J. D. McDougall and Wesley J. Mifflin, attorney for plaintiffs. After the hearing on the motion to quash, plaintiffs, with the consent of counsel for relator, filed the affidavit of Osee W. Noble, hereinBefore referred to.

Relator's motion to quash came on for hearing, and after the court had considered the affidavits and the argument of counsel, it orally announced its opinion that the operation of the stages above referred to over highways in the state of Washington whether constant in practice or only on such occasions as the regular route in Canada was impassable because of snow conditions, constituted doing business within the state...