Weiser v. Holzman

• Decision Date: 29 September 1903
• Citation: 33 Wash. 87,73 P. 797
• Parties: WEISER v. HOLZMAN et al.
• Court: Washington Supreme Court

73 P. 797

33 Wash. 87

WEISER v. HOLZMAN et al.

Supreme Court of Washington

September 29, 1903

Appeal from Superior Court, Spokane County; Geo. W. Belt, Judge.

Action by Roy E. Weiser against David Holzman and others. From a judgment in defendants' favor, plaintiff appeals. Reversed.

Roche &amp Oustine, for appellant.

Post Avery & Higgins, for respondents.

FULLERTON, J.

The appellant sued for personal injuries. A general demurrer was interposed and sustained to his complaint, whereupon he refused to plead further, and a judgment that he take nothing by his action was entered against him, from which he appeals to this court.

The respondents move to dismiss the appeal for the reason that the justification of the sureties on the appeal bond fails to recite that the sureties are worth the amount for which they justify 'in property within this state,' as required by section 6509 of the Code (Ballinger's Ann. Codes &amp St.). In other respects the bond is regular. While it may be difficult to distinguish this omission from others made in appeal bonds which were deemed fatal to the appeal by this court, we have uniformly held it not to be so, but that an objection on this ground is one going to the sufficiency of the sureties, which must be raised and passed upon in the court below in order to be available in this court. McEachern v. Brackett, 8 Wash. 652, 658, 36 P. 690 40 Am. St. Rep. 922; Warburton v. Ralph, 9 Wash. 537, 546, 38 P. 140; Horton v. Donohoe Kelly Banking Co., 15 Wash. 399, 46 P. 409, 47 P. 435. As the objection in this case was not so raised, the motion to dismiss must be denied.

The next question is, does the complaint state facts sufficient to constitute a cause of action? Stripped of its verbiage the complaint alleges that the respondents manufactured, sold, and delivered to one Pratt, under the name of 'champagne cider,' a dangerous explosive, knowing it to be such without warning Pratt of its dangerous character, or placing on the bottle containing the substance anything to indicate that it was a dangerous explosive; and that the appellant while in the employ of Pratt, and engaged in his duties as such employé, and without fault or negligence on his part, was injured by an explosion of the substance. Paragraph 5 of the complaint was as follows: 'That the injuries to said plaintiff were caused by the willful negligence, carelessness, and want of proper care on the part of the defendants, D. Holzman & Co., by reason of said defendants willfully, carelessly, and negligently, and for want of ordinary care in the manufacturing, bottling, preparing, and selling of said champagne cider, in this: that the said defendants failed to manufacture, bottle, and prepare the said champagne cider in the proper degree of temperature, failed to properly charge the said champagne cider with the proper amount of carbonic acid gas and other substances used in the manufacturing and bottling of the same, failed to properly test said bottle as to its strength and endurance to hold said champagne cider, failed to properly label said bottle as to its being an explosive and dangerous substance, failed to explain to the said M. L. Pratt, or said plaintiff, or any one else, of the danger in handling and using said bottle of champagne cider, and the cause for and probability of its exploding and injuring those who came in contact with the same.' The prayer was for damages in the sum of $10,000. The record does not advise us as to the ground upon which the trial judge sustained the demurrer, but the respondent urges against its sufficiency two principal contentions, the first of which is that the allegations of negligence are so indefinite as to be meaningless, and the second that there is no causal connection between the negligence alleged (conceding the allegations sufficient) and the injury complained of. The argument that the allegations of negligence are so indefinite as to be meaningless is based upon recitals in the paragraph above quoted. It seems to us, however, that the complaint states a cause of action without that paragraph, and hence it is not very material to inquire just how definite this particular one should have been made; but, conceding it otherwise, we do not think the allegations susceptible to a general demurrer. Clearly, ...