17 Wash. 409 | Wash. | 1897
The opinion of the court was delivered by
This cause was heard last November and reversed and remanded for a new trial. It is reported in 15 Wash. 450 (48 Pac. 53). In due time counsel for respondent presented a petition for re-hearing, which was by direction of this court answered by appellants, and the cause then was reassigned for argument. The action was instituted by respondent in the superior court of Spokane county against the Northern Pacific Railroad Company, a corporation, and Rouse, Payne and Oakes, receivers of said corporation, and A. H. Simmons, an agent of the receivers. The complaint averred that the railroad company was a common carrier of passengers between Spokane and Marshall Junction, Washington; that on the 10th day of November, 1891, the railroad company, in consideration of eighty-five cents paid to it by respondent, agreed to carry respondent at any time thereafter from Spokane to Marshall Junction, and from the Junction back to Spokane, and in pursuance of said agreement issued to plaintiff a first-class round trip ticket or coupon, which entitled plaintiff to safe carnage when any of the trains of the railroad company ran thereafter for the purpose of carrying passengers between the points mentioned; that .defendants did not fulfill the agreement to carry plaintiff as before set forth, but, on the contrary, on the 10th of November, 1894, 'when plaintiff, in the exercise of his lawful rights, and in
“ and said Simmons, acting for kimself and for said receivers and said railroad company, and in tke course of kis employment in tke presence of a great number of people, and to tke great discomfort, kumiliation and skame of plaintiff ■assaulted and beat plaintiff in a violent, rude and malicious and insulting manner, and witk force and violence forced and pusked plaintiff away from said train, and forced kim to leave tke depot of said defendants, ke, tke said Simmons, tken and tkere informing plaintiff in a loud, angry and insulting manner, and maliciously after kaving insulted and assaulted plaintiff, tkat said plaintiff skould not ride upon said ticket, ke, tke said Simmons, tken and tkere wilfully, violently and maliciously assaulting plaintiff.”
It is tken alleged tkat by reason of tke acts above set fortk plaintiff was unable to go to Marskall Junction on tke train of said railroad, and suffered bodily karm and great mental pain, agony and sense of wrong, and was damaged by said acts in tke sum of $1,900. Tke defendant, tke Mortkern Pacific Railroad Company, appeared and moved to strike tke averments relating to its responsibility for tke reason tkat tke corporation was not operating its road at tke time tkat plaintiff was injured, wkick motion was overruled. A motion was made to strike from tke complaint on bekalf of tke receivers tke following words: “ and said Simmons, acting for kimself and said railroad company” down to and including tke words “violently and maliciously assaulting plaintiff,” on tke ground tkat tkis is an action for an alleged violation of tke contract for
In the opinion heretofore filed in this cause it was said:
“ The court [superior] could only have rightfully dis*413 missed the action as to the railroad company and Simmons, and refused to dismiss it as to the receivers if, in its opinion, the action was upon the contract contained in the ticket. Its action would not have been justified if, in its opinion, the action was one of tort. If any of the defendants were guilty of a tort the defendant Simmons, who did all that was done, would certainly have been guilty. But the court took the case from the jury as to him. Hence it must have found, either that the action was not one of tort, or that there had been no evidence introduced to show that a tort had been committed. In either case the receivers would have been entitled to a dismissal if the defendant Simmons was. It must follow that the case was submitted to the jury by reason of the court’s being of the opinion that the receivers were liable by reason of their failure to carry out the contract entered into by the company before their appointment. But that they were not so liable was directly ruled by this court in the case of Scott v. Rainier Power & Ry. Co., 13 Wash. 108 (42 Pac. 531).”
Upon a reconsideration of the cause here we find only four assignments of error by the appellants. Pirst, the court erred in denying the motion to strike out filed in the action; second, the court erred in overruling the demurrer of the defendants; third, the court erred in refusing the motion to dismiss the action against the receivers, because the complaint stated no grounds for recovery against them; fourth, the court erred in refusing the motion for a new trial because no cause of action is stated in the complaint against the defendants against whom the judgment is rendered, viz.: the receivers. The complaint states a cause of action against the receivers. It is alleged that they were duly appointed receivers of the railroad company with power and authority to operate the railroad for the purpose of transporting passengers as common carriers, and that the defendant Simmons, acting for himself and for the receivers and in the course of his employment, committed the acts complained of by the plaintiff. There may be imma
There is no statement of facts brought to this court, and the question of the sufficiency of the evidence to support the verdict cannot be the subject of inquiry now. The reasons of the superior court for the dismissal of the defendant Simmons and the Northern Pacific Railroad Company as defendants at the trial are not stated and are immaterial here under the view entertained of the complaint. Appellants complain of the verdict of the jury as excessive, but in the absence of the evidence in the cause we cannot examine that question.
The judgment of the superior court is affirmed.
Scott, O. J., and Anders, Gordon and Dunbar, JJ., concur.