35 Wash. 390 | Wash. | 1904
Appellants, as copartners under the firm name and style of “Eashion Cafe,” brought this suit against respondents to recover damages. It is alleged, that the respondent Royal Dairy is a corporation under the laws of Washington, and that respondent McDonald has been the duly and regularly appointed dairy commissioner of the state of Washington; that, while assuming to discharge the duties of said office, said McDonald has, in connivance and collusion with his co-respondent, aided, abetted and protected said corporation in the sale of milt to appellants, which contained a poisonous ingredient known as formaldehyde, well knowing that the milk so sold contained said poisonous ingredient; that appellants purchased said mills; from said Royal Dairy for the purpose of mixing the same as a cooking ingredient, and that they also served the milk in its raw state as an accommodation to their patrons; that all milk, so served by appellants, was served to their patrons in the exact state that it was when purchased from the Royal Dairy, and that respondent McDonald had knowledge thereof. It is averred
“And it further appearing that defendant corporation, Royal Dairy, have herein also interposed a motion for themselves and in their own behalf to strike certain parts of plaintiffs amended complaint herein, and argument having been heretofore had upon defendant E. A. McDonald’s demurrer and said demurrer having been sustained:— It is hereby ordered and adjudged that further argument be not had upon defendant .Royal Dairy’s motion, or that further pleading on the part of defendant Royal Dairy, be had upon said amended complaint. And it further appearing by the statement of P. 0. Dormitzer, Esq., as attorney and counsel for plaintiffs herein, that he elects to stand upon his amended complaint filed in this cause, and that he refuses to plead further in this cause — it is hereby further ordered and adjudged that said action be, and the same is, hereby dismissed, at plaintiffs costs, as to both and each of the defendants herein.”
The plaintiffs have appealed from the judgment. Respondent McDonald moves, for several reasons, to strike appellants’ brief. We think it unnecessary to refer to more than one of the grounds urged, viz., that the brief does not point out the errors relied upon, as provided by the rules of this court. It is true no so-called and formal assignment of error appears in the brief, but, at the conclusion of appellants’ statement of the case, is the following: “From the order sustaining defendant E. A. McDonald’s demurrer,
We shall now consider the ruling upon the demurrer to the complaint. If the complaint be treated as one for malicious prosecution, the ruling of the court upon the demurrer was manifestly right, for no recovery of damages can be predicated upon the action of McDonald in causing the arrest of appellants on a charge under which they were admittedly convicted. If he knew they were conducting a restaurant and, as the proprietors thereof, were selling milk to their customers which contained the poisonous substance, there was not only probable cause, but it was his duty as dairy commissioner to cause their arrest, under the provisions of chapter 9-1 of the session laws of 1901. In such case sufficient probable cause existed to excuse McDonald from liability.
The remaining question is whether there are sufficient allegations, as against demurrer, to render McDonald liable on any other theory than that of malicious prosecution. On motion, doubtless, appellants would have been required to elect upon what theory they would proceed; but upon general demurrer, the only question is whether sufficient facts are stated to constitute a cause of action upon any theory. We are inclined to think that the broad allegations of this complaint do state a cause of action against McDonald. While it is not alleged — except by way of mere information and belief, and this we do not regard of any force, since it is not actually alleged — that he directly contributed to bring about the condition of the milk, yet it is repeatedly averred that he, for some time, had knowledge thereof, and
The respondent Royal Dairy moves to dismiss the appeal as to it, for the reason that appellants have not assigned as error the action of the lower court in entering a judgment in favor of it and against appellants; also, for the further reason that they, in their opening brief, have made no argument to the effect that the lower court was in error in rendering a judgment in favor of the Royal Dairy and against appellants. It is also true that, in, appellants’ reply brief, no claim whatever is made that the court erred in its judgment in favor of the dairy company. The only error in any way pointed out, or argued in the briefs, is that of the ruling upon the separate demurrer of McDonald herein-before discussed. The motion of the dairy company must therefore be granted. We must assume from the briefs that appellants do not wish to disturb the judgment as to said company. There being no other questions before us for decision at this time, the appeal as to respondent Royal Dairy is dismissed, and the judgment as to it is affirmed, and it shall also recover its costs on appeal, it having filed a sepa
Fullerton, C. J., and Mount, Anders, and Dunbar, JJ., concur.