Larsen v. Allan Line Steamship Co.

80 P. 181, 37 Wash. 555, 1905 Wash. LEXIS 769

• Court: Washington Supreme Court
• Decided: March 23, 1905
• Docket: No. 5264
• Status: Published

Opinion

Hadley, J.

This is an action to recover damages for permanent impairment of the plaintiff’s health, resulting from alleged negligent acts of the defendant. The plaintiff is a minor, and Martin J. Lund is his duly appointed guardian ad litem for the purposes of this action. It is alleged, that the defendant, a corporation, is a common carrier, engaged in the business of carrying passengers for hire from Trondhjem, Norway, to Seattle, Washington; that on or about the 7th day of May, 1902, at said Trondhjem, the defendant promised and agreed to carry plaintiff as a passenger for hire from said place to Seattle for the sum of $85; and also agreed to carry him from Liverpool, England, to Montreal, Canada, direct, without landing him at any other place than Montreal; and further agreed to furnish him, while on said journey between Liverpool and Montreal, including any delay, with good, wholesome, and sufficient food, together with good, clean, and warm quarters and bedding; that relying upon said promises, the defendant paid said sum of $85 for transportation from Trondhjem to Seattle, and received a ticket from the defendant for said purpose; that said agreement was partly oral and partly in writing, and the portion which was in writing was contained in the ticket aforesaid, and in a written statement delivered by the defendant to the plaintiff at the time. It is alleged that, about the date aforesaid, the plaintiff commenced his said journey, and that, during the progress thereof, the defendant failed to furnish sufficient wholesome food and clean, warm quarters and bedding; that the defendant neglected to land plaintiff at Montreal, as it had agreed to do>, but compelled him to land upon Grosse Isle, where he was, against his will, confined for a period of eighteen days; that he was there kept in one room with two hundred other men, and given no food for two days, except a small i>iece of bread, the size of a man’s hand, and was furnished unwholesome and insufficient food for the remainder of the time; that, while so confined, he was furnished insufficient, bedding and covering, and that the nights were cold; that by reason thereof he suffered great physical pain from hunger and cold, and became sick and feeble; that he was sick and in need of hospital care at the time he was put upon a train, and compelled to continue his journey to Seattle, but that, the defendant, knowing of his sick and feeble condition, compelled him to board the train and continue his journey; that he suffered greatly while traveling overland, and arrived at Seattle in a delirious condition; that he was, by his friends, placed in a hospital in Seattle, where he remained for six weeks; that, by reason of his said suffering, his health has been permanently injured and he has lost his power to hear in both ears, he having been thereby rendered entirely deaf for the. balance of his life. He asks damages in the sum of $25,000.

The defendant answered the complaint, denying the material averments thereof, and affirmatively alleging that it is a British corporation, engaged in carrying passengers for hire from Liverpool, England, to Halifax, Quebec, and Montreal, in Canada; that, during the month of May, 1902, the plaintiff became a steerage passenger upon one of defendant’s steamships, to be transported by the defendant from Liverpool to Quebec; that during the voyage a case of sickness developed on board the steamer, and, when near the port of Quebec, the government authorities of the Dominion of Canada took possession of the steamer, and assumed control of both the steamer and the passengers; that all steerage passengers, including the plaintiff, were removed to the government quarantine station at Grosse Isle, near the harbor of Quebec, for detention under the government quarantine laws; that the detention of the steamer and passengers was caused by the quarantine authorities, without the consent of the defendant, and was an act unavoidable and beyond the control of the defendant ; that the contract of passage by which -the plaintiff was transported by the defendant provided, among other things, for the furnishing by defendant to plaintiff of medical attendance and medicine, during the voyage from Liverpool to the said place of landing; and, further, that the defendant would not he responsible to plaintiff for loss or injury by reason of restraints of princes, rulers, or other authorities. It is averred that the contract for transportation from Liverpool to Quebec was made in England, is an English contract, and governed by the laws of that country ; that, under the laws of Eugland, the defendant' had a right to limit its liability -as against loss or injury occasioned by the restraints of princes, rulers, or other authorities.

The material averments of the answer are put in issue by the reply, and it is affirmatively alleged in reply that, at- the time of landing the plaintiff at the quarantine station, the quarters thereof were not equipped with beds, bed clothing, food, or servants for the accommodation of defendant’s passengers, and'that the fact of such neglect and lack of accommodations was well known to the defendant, who then and there promised and agreed to supply plaintiff and the passengers while confined there with beds, bed clothing, food, servants, and attendants for their accommodation, but that defendant neglected so to do in every particular.

Under issues essentially as stated above, the cause was tried by the court without a jury, a jury being waived, and resulted in a judgment in favor of the plaintiff in the sum of $6,600. The defendant moved for a new trial, which was denied, and it has appealed from the judgment.

The first three assignments of error are as follows: (1) That no service of process was had upon the defendant, and that the court was without jurisdiction in the premises;

(2) that the court erred in refusing to grant defendant’s motion to set aside the order of default unconditionally;

(3) that the court erred in requiring the defendant, as a condition of setting aside the previous order of default, to enter a general appearance and answer. The above may be discussed together.

The return as to service recites that it was made upon appellant in King’ county, by delivering to and leaving with Andrew Chilberg, the managing agent of appellant, a copy of the summons and complaint. A default was entered against the appellant, based upon said service. Thereafter the appellant appeared specially, and moved that the order of default be set aside, on the ground that no personal service was had, and that the court was without jurisdiction to enter any order in the premises. The motion was based upon the claim that Andrew Chilberg was not the agent of appellant. Thereafter the court entered an order vacating the default upon condition that appellant should, within two days, answer the complaint, and, in case of failure to do so, the motion should be denied. Thereupon the appellant answered the complaint.

Respondent urges that appellant' has waived the- matter of service, and, also, any error in the court’s conditional order of vacation, in that it has appeared generally by the interposition of an answer to the merits, upon which issues were made and tried. The authorities are not uniform upon this subject, as was conceded in Woodbury v. Hem ningsen, 11 Wash. 12, 39 Pac. 243, where it was held that, after special appearance and objection to. the jurisdiction before a justice, of the peace, the submission to a trial does not constitute a waiver of want of jurisdiction. But in the case of Walters v. Field, 29 Wash. 558, 70 Pae. 66, it was held that, if one answers to the merits, after appearing specially, he must still preserve his special appearance, or it will be waived and his appearance will become general. Tinder Bal. Code, •§ 4886, a defendant appears when he answers, demurs, or makes any application for an order in a case, and every such appearance shall be deemed general unless the defendant in making it shall state that it is special. The statute seems to contemplate that every appearance in a cause calling for an order for any purpose shall be deemed general unless otherwise specified.

In Walters v. Field, supra, the special appearance was preserved in all motions and pleadings up to a given point, and thereafter it was not noted, by reason whereof it was held to- have been waived. In the case at bar, we fail to find the original answer in tbe record, but the amended answer recites, preliminarily, that it is filed without waiving objections theretofore urged on special appearance.

Assuming that this was sufficient to- preserve the special appearance, we are nevertheless confronted with other appearances in the record which are not so limited. The appellant filed a petition to- remove the cause to the United States circuit court. Respondent answered the petition, and urged lack of jurisdiction in the- latter court. Appellant replied to this plea without any limitation as to the character of its appearance. Again, while the petition for removal was pending before the federal court, a stipulation between the parties was filed in the cause, which recited certain agreed facts pertaining to- the citizenship of respondent, and also stipulated that, if upon such facts the United States court had not jurisdiction, then the cause should be remanded to the state court. In said stipulation appellant in no way stated that it appeared specially for the purpose. The cause was remanded to- the state court, and tried, after which appellant moved for a new trial, and afterwards filed an amended motion stating additional grounds. In neither of said motions was there any limitation as to the character of the appearance.

Therefore, even if it be conceded that the rule is adopted by this court that answering to the merits, after a special appearance, where the answer expressly attempts to preserve the rights under the special appearance, does not amount to a waiver, still the several appearances of appellant last above noted were general, and, under the rule already announced by this court, as above stated, they constituted a waiver of the special appearance. "What may appear to be strictness in this rule commends itself to us, for the reason that a defendant may stand upon his special appearance without the necessity of a long, tedious, and expensive trial, as was had in this case. But if he chooses to pursue the latter course, he should at least make clear with all of his appearances that he has not waived his special appearance. Any error involved in the assignments above mentioned has, therefore, been waived, and the court had jurisdiction of the person of the defendant.

The assignment that the court erred in receiving any testimony at the trial over appellant’s objection, and in denying the motion of the latter to strike testimony, on the ground that the complaint failed to state any cause of action against appellant, is not well taken. The essential facts averred in the complaint are somewhat fully stated above, and we think they state a cause of action against appellant.

While the complaint alleges actionable neglect on .the part of appellant during the voyage across the ocean, yet at the trial the evidence was mainly directed to the claim of negleeti on its part during the period of quarantine, and upon that evidence the case seems to have been determined as it was by the trial court. It is first contended that the law does not hold appellant responsible for injuries received during quarantine. That must depend upon its contract. The original contract held by respondent was shown to have been lost, and secondary evidence as to its contents was introducéd in the way of another contract, which respondent testified was in all respects like the original, with the exception of the inserted name, date and amount paid for passage. The contract as shown called for passage from Trondhjem to Seattle in the following manner:

“(1) Bty steamship to Hull, where the separate steamship ticket is to he given up. (2) By railway to Liverpool. , (3) By steamship to Quebec, Boston, Halifax, Portland, Philadelphia, or Baltimore. (4) By railway to destination.”

The contract also contained the following:

“During the whole journey hence to America passengers will be supplied with good and sufficient food as well as with suitable lodging, and this arrangement stands equally good in the event of any unavoidable delay or accident interrupting the journey.”

The above being without any limitations, we think was sufficient to cover the “unavoidable delay” required by the quarantine. The possible delay by quarantine must have been well known to appellant as an ocean transportation company, and yet the contract covers all delays with no limitations' as to quarantine. That appellant understood that it was obligated to furnish sufficient food and suitable lodging during quarantine, as well as during delays from other causes, is emphasized by the fact, which is shown in evidence, that it did furnish the food and bedding that were supplied to' the passengers during the quarantine of respondent and his fellow passengers. The buildings and grounds were supplied by the government of Canada, and appellant was required to land the steerage passengers at said place; but the actual supplies were furnished and distributed by appellant.

The contract containing the above provisions was delivered to respondent at Trondhjem, where he also received a receipt for the passage money. Upon reaching Liverpool he received an additional paper called “Passengers’ Contract Ticket,” which specially admitted him to passage upon the steamship “Ionian” of appellant’s line. Upon the back of the latter paper was printed the following:

“Heather the ship owner nor the passage broker or agent is responsible for loss of, or injury to, the passenger, or his luggage, or peatonal effects, or delay on the voyage arising from steam, latent defects in the steamer, her machinery, gear, or fittings, or from act of God, Queen’s enemies, perils of the sea or rivers, restraints of princes, rulers, and peoples, barratry or negligence in navigation of the steamer or of any other vessel.”

It is argued that the above was a provision of a contract made in England, and that it must be governed by the laws of England. A decision of the supreme court of the United States (Liverpool Steam Go. v. Phoenix Ins. Co., 129 U. S. 397, 9 Sup. Ct. 469, 32 L. Ed. 788) was introduced in evidence for the stated purpose of showing that, under the laws of England, the appellant had a right to thus limit its liability. Without discussing that matter, it is sufficient to say that the provision in question does not purport tO' limit appellant’s liability for what is charged against it in respondent’s complaint. The liability shown in the complaint is not predicated alone upon injury arising out of mere delay from “restraints of princes, rulers, aud peoples,” but is based upon the neglect of appellant to furnish sufficient food, with suitable bedding and covering, during the period of such restraint. The fact that the authorities restrained and delayed respondent is not urged as a ground of recovery. That was an act iaitended to seiwe the welfare of humanity, because of the existence of a case of smallpox on board the steamer*. The charge is, however, made that appellant neglected the duties which it assumed as incidental to such delay. We, therefore', think that, if such neglect has been shown, and if respondent’s injuries resulted therefrom, the appellant is liable.

It is next argued that negligence of appellant has not been shown by the evidence. There is much evidence in the record upon this subject, and there is also conflict therein; but it is conceded by appellant that, during the first two days of the quarantine, the supply of food was very limited. The respondent testified that, during the first two nights on the island, he had no bedding,- and that during that time he had practically no food, by reason whereof he was very cold and hungry. He says that the third night he was furnished a single blanket and a straw mattress, which was all the bedding that was furnished him during his whole stay on the island; that the nights were cold and that, during some of the nights, water standing outside of the building was frozen; that on one side of the building there was a broken window, and that cold winds blew from the north; that, after the first night on the island, he felt sick, and so remained until he became delirious while on the train. As to some of the foregoing facts, he is disputed by other witnesses, but the court found the facts substantially as testified to by respondent, and his testimony was so corroborated that we do not feel justified in disturbing the findings. We therefore think the negligence of appellant was established.

It is further argued that it was not shown that respondent’s deafness was due to appellant’s neglect. There was much testimony of physicians as experts bearing upon that subject. The physician who took immediate charge of respondent upon his arrival in Seattle, and who treated him thereafter, testified that his malady was then meningitis. There was much testimony that total deafness is a common result from such affliction. An effort was made by appellant to show that respondent was feeble when he left Horway, and when he went upon the island, but we think this was by no means established. A further effort was made to show that the disease could not have resulted from exposure upon the island, for the reason that the time had been too long for the ordinary period of incubation for meningitis. The confinement in quarantine was eighteen days, and the entire trip overland to Seattle after his release occupied six days, making twenty-one days from the commencement of any exposure upon the island. 'The. weight of the testimony of the physicians is to the effect that there is no definite period for incubation of the disease mentioned, and we shall not disturb the court’s finding that respondent’s injuries are traceable to his exposure upon the island, and to thei neglect of appellant.

We find no error in the record, and the judgment is affirmed.

Mount, C. J., Fullerton, and Dunbar, JJ., concur.

Rudkin, Root, and Crow, JJ., took no part.