Sievers v. Dalles

The opinion of the court was delivered by Action for damages for injuries alleged to have been suffered by reason of the appellant, which is a navigation company, failing to carry the respondent Wilhelmina Sievers to her destination, and wrongfully putting her off of one of its boats on to an island in the Columbia river, where, through exposure to the elements, she became sick and suffered the damages complained of. Summons was served upon George Woodbury, the purser, and Oscar Johnson, the wharfinger of the company, at Vancouver, as agents of said company. Thereafter defendant appeared and moved to quash the service for the reason that the parties served were not agents of the company within the provisions of the law, and affidavits were filed in relation to the business of the corporation. The motion to quash was overruled and the defendant answered, and the action of the court in overruling the motion to quash the summons is the first error alleged.

We think the motion was properly overruled. Section 4854, Bal. Code, provides that

"An action against a corporation may be brought in any county where the corporation has an office for the transaction of business, or any person resides upon whom process may be served against such corporation, unless otherwise provided in this code."

The corporation received and discharged freight and passengers at Vancouver, and this business was in charge of the purser, who was certainly one of the company's agents looking after this with other business of the company. The appellant's steamers regularly landed at the wharf in Vancouver, and regularly discharged and received passengers and freight. To that extent it was certainly doing business in the state, and the wharf was an office for the transaction of such business. Paragraph 9 of § 4875, which provides the manner of service of summons, provides that, if the suit be against a foreign corporation or non-resident joint stock company or association doing business within the state, the summons may be served on any agent of the corporation. It does not specify any particular kind of agent, and we think that both the wharfinger and the purser were agents within the meaning of the law.

Upon the trial the verdict was for the plaintiffs in the sum of $600, for which amount judgment was rendered.

The second allegation is that the court erred in allowing Mr. Sievers, the husband of the respondent, to testify that the loss of Mrs. Sievers' services by reason of her sickness was $2,000. It is difficult from the record to tell just what was objected to. Certainly, proof of loss of services was admissible under the allegations of the complaint; and while, technically, it would have been more appropriate for the witness to have stated the facts and circumstances of the injury and allowed the jury to determine the ultimate fact of the amount of the injury, an examination of the record shows that the attorney for the respondent was trying to elicit the testimony as to the loss of service as a part of the damages alleged in the complaint, viz., $1,999, and the answer of the witness, who was a raw foreigner, was not, possibly, entirely responsive to the question. But, in any event, it plainly appears that the testimony did not prejudice the defendant, for the verdict of the jury was for only $600, so that no reversible error occurred in that particular.

It is alleged that the court erred also in not granting defendant's motion for a non-suit upon the termination of plaintiff's testimony. But we think that, under the allegations of the complaint, there was sufficient legal testimony to sustain the verdict. The complaint was simply a statement of the facts, not only a breach of the contract, but neglect and wrongful and forcible landing of the respondent at a wrong destination, and the carelessness of the officers and agents of the appellant in the manner of putting her off and of exposing her to the inclemency of the weather and the dangers of the elements. The testimony is conflicting. If the testimony of respondent is true that she was so put off on Mosquito island with a promise that she should be taken up by another boat of the company on its way down the river, and that the officers of the other boat failed or refused to relieve her, but left her, an aged woman, on a stormy day, unprovided with adequate shelter or fuel, to make her way home as best she could, it was certainly not only neglect, but inhuman treatment, on the part of the appellant. It may have been inconvenient for the appellant to have rescued her from this unfortunate position in which it had placed her; but this will not excuse it, and the jury was warranted from the testimony in concluding that it was not impossible for the appellant, by proper exertion, to have given that care to its passengers which the law imposes upon it. There is direct conflict of the testimony in relation to the opportunity of the respondent to be landed at Cape Horn, as to whether or not she was willing to be landed on Mosquito island where she was landed, and as to whether or not there was a direct promise on the part of the appellant to see that she was taken from Mosquito island by the steamer City of The Dalles on her downward trip; and the same conflict of testimony is found in relation to the fact of whether or not the respondent was wet by the waters of the river in landing her upon the island. Upon all those questions the jury have passed in favor of the contention of the respondent. Certain it is that this aged woman was compelled, in great distress and fear of mind and with great bodily discomfort, to remain on this island with an old man for nearly five hours; that she was not relieved by the company at all, but, through the ministrations of settlers, finally reached her home, after great hardships, in the course of two days' travel. We do not think that a verdict of $600 indicates any passion or prejudice on the part of the jury.

We find no error in the instructions of the court, and the instructions asked for by the appellant either had in substance been given by the court, or did not properly state the law.

The judgment is affirmed.

REAVIS, C.J., and ANDERS and FULLERTON, JJ., concur.