35 Wash. 21 | Wash. | 1904
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This is an action brought in the superior court for King county, Washington, by the respondents, to recover from appellant the sum of $1,000, claimed as damages growing out of the alleged establishment and maintenance of a nuisance on the premises near the dwelling of respondents. The complaint alleges, in substance, ■that, on the 27th day of January, 1902, the plaintiffs
It is contended by the appellant that the town, under the allegations of this complaint, is not responsible to the respondents for damages that might have resulted from the action of the officers of the town, and that the complaint does not state a cause of action against the town. Whether, under the allegations of the complaint, the town would be liable, we are not called upon to decide, for a demurrer — to the effect that the complaint did not state a cause of action — was interposed to the complaint, and was afterwards waived by the defendant, which answered and went to trial upon the merits. This being true, the question of the sufficiency of the complaint cannot be raised on this appeal, under the rule announced in Mosher v. Bruhn, 15 Wash. 332, 46 Pac. 391, where it was held that, where the objection that the complaint does not state a cause of action had been raised in the lower court by demurrer, and the demurrer had been subsequently waived, the defendant could not raise the objection of insufficiency of the complaint on appeal, as Code of Procedure, § 193, permitting the defendant to raise the objection, at any stage of the proceedings, that the complaint does not state a cause of action, has no application to cases where the point has been once raised in the lower court by demurrer, and then abandoned. This doctrine was again announced
It is true that, in the case at bar, practically the same question was raised by the defendant by objecting to any testimony being offered under the complaint, for the reason that it did not state a cause of action. But this objection, having been specially withdrawn by the waiver of the demurrer, which was the proper method of raising the question, must he considered to have been waived for all time. And, if the question could not again be raised in this court, there is no good reason apparent why it should be raised again in the court below. It might be that, if, after the introduction of all the testimony of the plaintiffs, the whole testimony did not show that a ease had been made out which would bind the town, this question could be raised by a motion for nonsuit; and a motion for nonsuit was made by the appellant in this case, but not upon the ground that the complaint did not state a cause of action, or that the evidence would not sustain a verdict, so far as the allegations of the complaint were concerned. An examination of the testimony shows that the proof was practically as broad as the allegations.
The questions raised by the motion for nonsuit, we think, were properly decided by the court against the appellant, the principal contention there being that the officers acted without any authority or direction of the appellant, and that there was no sufficient act of ratification on the part of the town. We think the testimony fully sustained the judgment in this respect, and it is clear to our minds, not only that the health officer acted with the knowledge and authority of the town council, but that all his acts were ratified by the town. In any event, there was sufficient testimony offered on this sub
We think the court did not abuse its discretion in sustaining challenges to the jurors mentioned in the 1st, 2d, 3d, 4th, and 5th assignments, and that no prejudicial error was committed by the introduction or rejection of testimony, or by the giving or refusing to give instructions.
It is contended by the appellant that the presentation of the claim for damages required by the statute was not made in this case, the complaint having alleged the presentation of the claim, and the allegation having been denied by the answer. But, as we view this complaint — it being for the wrongful act of the town through its qualified agent — the presentation of a claim was not necessary, under the rule announced in Sutton v. Snohomish, 11 Wash. 24, 39 Pac. 273, 48 Am. St. 847.
The judgment is affirmed.
Fullerton, C. J., and Mount, Hadley, and Anders, JJ., concur.