51 Wash. 448 | Wash. | 1909
— This action was instituted against the Spokane Falls & Northern Railway Company and the Great Northern Railway Company, to recover the value of certain household goods shipped over the line of the former company from the Little Dalles to Spokane, and lost in transit. Among other defenses interposed, the separate answer of the Spokane Falls & Northern Railway Company alleged that, in express consideration of - the freight' rate for which it agreed to transport the goods, and as a condition upon which the ■ goods were to be transported for such rate, the
At the trial of the action two witnesses for the appellant testified that the wife of the respondent signed the special contract or shipping receipt set forth in the answer, in their presence, at Northport, Washington, and the respondent admitted that his wife had authority to sign the contract in his behalf, if she did so. The accident and surprise for which the new trial was granted arose out of the following facts. The respondent made affidavit that, on or about May 12, 1907, the city agent of the Great Northern Railway Company at Butte, Montana, exhibited to him and his attorney a carbon copy of the contract set forth in the answer, that the respondent and his attorney and the Great Northern agent compared the signature C. J. Jensen appearing on the carbon copy with signatures written by the respondent’s wife, as the same appeared in certain letters written by her before the present controversy arose; that the Great Northern agent
It will thus be seen that the respondent ivas surprised solely because of his reliance on certain statements or admissions made by an agent of the Great Northern Railway Company at Butte, Montana. But, aside from the fact that this agent had no authority to bind either this appellant or his own company by any such statements or admissions, and the further fact that the respondent had no right to rely upon them, it clearly appears that the respondent’s attorneys were neither surprised nor misled, and it is a significant fact that the Montana attorney, who ivas present at the time the admissions were made and who afterward examined the respondent and his wife at the time their depositions were taken, makes no such claim in his affidavit filed in support of the motion. The record before us affords abundant evidence that the respondent’s attorneys were at all times fully aware that this special contract ivas a vital issue in the case. The appellant’s answer setting forth a copy of the contract was filed on January 23, 1907. On January 30, 1907, the respondent demanded a bill of particulars stating at what station the special contract was signed, on what date, and in whose presence. On February 2, 1907, the bill of particulars was furnished, stating that the contract was signed at Northport, Washington, on the 18th day of August, 1905, in the presence of the Company’s cashier, W. C. Stevens, and others whose names the appellant Avas unable to recall. On
It seems to us that a bare inspection of this record should convince one, without argument or citation of authority, that the claim of surprise, as that term is understood in the law, is wholly unfounded, and that the new trial was improvidently granted. Before a new trial can be granted on the ground of surprise, it is indispensable that the applicant should show: (1) That he was surprised in fact; (2) that ordinary prudence on his part would not have guarded against it; and (3) that the claim of surprise was promptly made known to the trial court and a continuance asked for. In our opinion the showing made in this case is lacking in all three of these essentials. Wilson v. Waldron, 12 Wash. 149, 40 Pac. 740; Pincus v. Puget Sound Brewing Co., 18 Wash. 108, 50 Pac. 930; State v. Power, 24 Wash. 34, 63 Pac. 1112; Reeder v. Traders’ Nat. Bank, 28 Wash. 139, 68 Pac. 461; State v. Vance, 29 Wash. 435, 70 Pac. 34; Clemans v. Western, 39 Wash. 290, 81 Pac. 824; Dumontier
When a case has been once finally tried and a decision rendered, the state, as well as the successful litigant, has an interest in the result, and a retrial should not be granted on any such showing as appears in this record.
The order granting the new trial is reversed, with directions to enter judgment on the findings of fact and conclusions of law.
Hadley, C. J., Fullerton, Crow, Mount, and Dunbar, JJ., concur.