Albin v. National Bank of Commerce of Seattle
| Decision Date | 01 November 1962 |
| Docket Number | No. 5586,5586 |
| Citation | 375 P.2d 487,60 Wn.2d 745 |
| Court | Washington Supreme Court |
| Parties | Bessie ALBIN, as Administratrix of the Estate of Otis Ray Albin, deceased, Appellant, v. The NATIONAL BANK OF COMMERCE OF SEATTLE, a corporation, as Trustee under the Fanny E. Weller Trust Fund; Clarence Braden; and Columbia County, Washington, Respondents. Larry ALBIN, Appellant, v. The NATIONAL BANK OF COMMERCE OF SEATTLE, a corporation, as Trustee under the Fanny E. Weller Trust Fund; Clarence Braden; and Columbia County, Washington, Respondents. |
Peterson & Taylor, and Ivan Merrick, Pasco, for appellant.
Vaughn Hubbard, Waitsburg, for National Bank of Commerce.
Loney, Westland & Koontz, Kennewick, for Clarence Braden.
Minnick, Hahner & Tuttle, Walla Walla, for Columbia County, Wash.
A car proceeding along a county road through a heavily-wooded, mountainous area, during a windstorm of disputed force, was struck by a falling tree. 1 The road, though remote and closed by snow during the winter, was used somewhat extensively during the deer and elk hunting season. One occupant of the car was killed and his son, then a minor, who was driving the car, was seriously injured.
An action to recover for the wrongful death of the father and the action for the son's injuries were consolidated for trial; the basic issues being:
A. The liability of (1) Columbia County for permitting the tree to stand in proximity to its road; (2) the National Bank of Commerce of Seattle, as trustee, the owner of the property on which the tree stood (hereinafter referred to as the 'Bank'); and (3) Clarence Braden, alleged to be the owner of the tree--he having signed a 'Timber Sale Agreement' whereby he purchased the timber of certain sizes, on the property on which the tree stood, and agreed thereby to remove all such timber within five years.
B. The availability of the defenses of (1) contributory negligence, and (2) volenti non fit injuria.
Columbia County was dismissed from the action by the trial court, and there was a jury verdict in favor of the other two defendants. A judgment of dismissal was entered on the verdict.
The plaintiff's appeal; and, in addition to the basic issues to which we have referred, make numerous assignments of claimed trial errors.
We will consider first the dismissal of Columbia County from the action by the trial court. A county is obligated to keep its roads in a reasonably safe condition for ordinary travel. McDonald v. Spokane County (1959), 53 Wash.2d 685, 336 P.2d 127; Simmons v. Cowlitz County (1942), 12 Wash.2d 84, 120 P.2d 479; Berglund v. Spokane County (1940), 4 Wash.2d 309, 103 P.2d 355; Fritch v. King County (1940), 4 Wash.2d 87, 102 P.2d 249; Dignan v. Spokane County (1906), 43 Wash. 419, 86 P. 649.
A county's liability to the users of its roads is predicated upon its having notice, either actual or constructive, of the dangerous condition which caused injury, unless the danger was one it should have foreseen and guarded against. McDonald v. Spokane County, supra; Russell v. Grandview (1951), 39 Wash.2d 551, 236 P.2d 1061; Holland v. Auburn (1931), 161 Wash. 594, 297 P. 769; Blankenship v. King County (1912), 68 Wash. 84, 122 P. 616, 40 L.R.A., N.S., 182.
What will constitute constructive notice will vary with time, place, and circumstance. Mead v. Chelan County (1920), 112 Wash. 97, 191 P. 825; Noyes v. Gardner (1888), 147 Mass. 505, 18 N.E. 423, 1 L.R.A. 354. See also 25 Am.Jur., p. 737, Highways, § 445. In Mead, supra, the court, speaking of such a road, as we have in this case, said (112 Wash. at page 100, 191 P. at page 826):
'* * * It is to be borne in mind that this was a somewhat remote mountain road, serving but few families, and in the nature of things the commissioners could not be required to give it constant or even frequent inspection, but might rely upon the users of the road, or those living in the neighborhood, to give them notice of any unusual conditions which would render the road unsafe * * *.'
There is no evidence that the county had actual notice that the tree which fell was any more dangerous than any one of the thousands of trees which line our mountain roads, and no circumstances from which constructive notice might be inferred. It can, of course, be foreseen that trees will fall across tree-lined roads; but short of cutting a swath through wooded areas, having a width on each side of the traveled portion of the road equivalent to the height of the tallest trees adjacent to the highway, we know of no way of safeguarding against the foreseeable danger. At the present time this is neither practicable nor desirable. The financial burden would be unreasonable, in comparison with the risk involved. Chambers v. Whelan (4 Cir., 1930), 44 F.2d 340, 72 A.L.R. 611; Zacharias v. Nesbitt (1921), 150 Minn. 369, 185 N.W. 295, 19 A.L.R. 1016.
The trial court did not err in dismissing Columbia County from the consolidated actions.
We turn next to a consideration of the liability of Clarence Braden, who was made a party defendant on the theory that by virtue of the 'Timber Sale Agreement' with the Bank, dated August 4, 1958, he was the owner of the tree which fell.
It is undisputed that Braden did not do the logging. He had never seen this tract of land, did not at any time exercise any control over the logging operation, and had no right to exercise such control. The tract was logged by John Lyons, a logging contractor hired by the real owner of the timber, i. e., the EML Lumber Company, Inc., an Oregon corporation. Lyons received from EML twenty-six to twenty-seven dollars per thousand board feet delivered at the EML mill. Braden came into the picture because he was loaning EML sixty-five hundred dollars to buy the merchantable timber on the tract owned by the bank--the commercial banks being unwilling to loan money for that purpose.
Braden was given a chattel mortgage on the EML mill property, and title to the merchantable timber was taken in his name solely as a matter of security.
As soon as the logs were delivered at the mill by Lyons, a commercial bank was willing to make a loan to EML on them, and from the proceeds of that loan Braden was paid his sixty-five hundred dollars on September 15, 1958. Thereafter he had no interest in the land or the timber. The tree fell on October 14, 1958, while the logging operations were still continuing, though the operations had been moved beyond that particular locality.
The case should never have been submitted to the jury on the issue of the liability of Clarence Braden, inasmuch as he never had anything but the bare legal title in the merchantable timber for security purposes.
Whether the plaintiff were entitled to go to the jury, as against the Bank as the owner of the property on which the tree stood, is not free from doubt. A majority of the court are of the opinion that the owner's liability was a jury question.
There is a marked distinction between the duty, with reference to trees, that may be imposed upon the owners of land adjacent to city streets or heavily traveled highways and those imposed on owners of forest lands adjacent to little-used roads.
A very recent case, emphasizing these distinctions, is O'Brien v. United States (9 Cir., 1960), 275 F.2d 696. The opinion points out that courts and commentators are in disagreement as to whether, as a matter of law, a rural landowner should be saddled with a duty to inspect the natural conditions of his land near a public highway. 2 The court said (p. 698):
'* * * Where rural property is concerned, the differing conclusions as to a duty to inspect reflect conflicting notions as to the proper balance to be drawn between unduly burdening the landowner with a duty to undertake costly affirmative action and protecting travelers on the public highway from injury caused by conditions over which they have no control. * * *'
But when you pass from the merely rural to remote and little-used roads through forest lands, the cases, though few, seem to be unanimous that there is no duty to inspect. O'Brien v. United States, supra; Lemon v. Edwards (Ky.1961), 344 S.W.2d 822. In the O'Brien case the trial court had said (275 F.2d p. 697) "* * * It is unthinkable that the Oregon courts would impose upon the owners of forest lands, adjacent to little-used roads in sparsely-settled areas, the duty to inspect and remove trees which are likely to fall because of natural decay. * * *"
In Lemon, the court said (344 S.W.2d p. 823):
The Bank argues persuasively that these cases should govern the present situation and that, having no actual knowledge of the dangerous condition of the tree, it should have been dismissed from the action. However, it is our view that the present case should not be governed by the O'Brien and Lemon cases because of certain circumstances deemed to be distinctive.
The road, through remote, was used extensively by hunters during the deer and elk season; and, more...
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...16.3(2) Albee v. Town of Yarrow Point, 74 Wn.2d 453, 445 P.2d 340 (1968): 3.2(2), 3.10(1) Albin v. Nat'l Bank of Commerce of Seattle, 60 Wn.2d 745, 375 P.2d 487 (1962): 19.2(12)(e) Alexander v. Muenscher, 7 Wn.2d 557, 110 P.2d 625 (1941): 11.2(3)(a) Alexanderson v. Bd. of Clark Cnty. Comm'r......
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Table of Cases
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