Amann v. City of Tacoma

• Decision Date: 29 November 1932
• Docket Number: 24016.
• Citation: 16 P.2d 601,170 Wash. 296
• Parties: AMANN et ux. v. CITY OF TACOMA et al. and five other cases.
• Court: Washington Supreme Court

16 P.2d 601

170 Wash. 296

AMANN et ux. v. CITY OF TACOMA et al. and five other cases.

No. 24016.

Supreme Court of Washington

November 29, 1932

Department 2.

Appeal from Superior Court, Pierce County; W. O. Chapman, Judge.

Six actions, one by Joseph Amann and wife, by A. Grace Amann, as guardian of James Amann, a minor, by Margaret Amann, as guardian of Patricia Amann, a minor, and by August Amann, and another by Kenneth Amann, all against City of Tacoma and others. From the judgments, plaintiffs appeal.

Affirmed in part, and reversed in part.

Robert B. Abel and George F. Abel, both of Tacoma, and W. H. Abel of Montesano, for appellants.

W. W Mount, John E. Gallagher, Bartlett Rummell, Herbert Cochran Chas. T. Peterson, S. A. Gagliardi, and Walter Christian, all of Tacoma, for respondents.

STEINERT J.

These six cases, arising out of a single accident, were consolidated for trial under one number, and from a judgment in all respects adverse to the plaintiffs the latter have appealed.

The facts necessary to an understanding of the case, and which we find to be amply supported by the evidence, are substantially these: On June 10, 1931, Mrs. A. Grace Amann parked her automobile in the city of Tacoma along the curb on South K street, near the corner of South Twelfth street, abutting upon which streets was a three-story frame building which was in course of demolition, preparatory to the construction of a brick building upon the same site. The aforesaid location was in a suburban business district of the city. In the automobile were three adult ladies and four children, all of them being related by ties of blood or marriage. After parking, two of the ladies went upon a shopping errand, and during their absence the front wall of the building, facing South K street, fell out into the street, onto the automobile, killing one of the children and severely injuring the other occupants of the car. The damages prayed for in the several complaints aggregate $211,350.

It appears that on May 28, 1931, the owners of the premises, James E. Paine and Rose Paine, his wife, who will hereinafter be referred to as Paine, desiring to improve their property with a new building, entered into a contract therefor with P. C. Walesby, doing business as Walesby Construction Company, who, with his wife, Elsie R. Walesby, will be hereinafter referred to as Walesby. The contract, consisting of eleven typewritten pages, accompanied by specifications made a part thereof and covering sixteen additional pages, is full and complete in its provisions. Without going into detail, however, it is sufficient to say that the contract provided that Walesby was to remove all buildings and rubbish from the premises and to erect upon the site a one-story brick building, the contractor to furnish all the necessary labor, material, tools, and equipment. The work was to be done according to certain plans and specifications, and under the suppervision, and to the satisfaction, of an architect therein named, who was to be the sole judge as to the proper performance of the work. The compensation to Walesby for the work was fixed at a lump sum of $10,965, payable in installments as the work progressed. Prior to the execution of the contract, Walesby had submitted a 'basic' bid of $11,930 for the work, with a provision therein that, if the owner cleared the site, there was to be a reduction of $350 from the contract price. On the same day that the 'basic' bid was submitted, the defendant English, by letter addressed to Paine, submitted a bid for demolishing and removing the frame building for a consideration of $50 and the salvage to be realized. English's bid was transmitted by Paine to Walesby, and later accepted; the negotiations for the employment of English, however, being made direct between the two contractors. Aside from the reduction of $350, the further discrepancy between the 'basic' bid and the ultimate contract is not entirely clear. Walesby's contract with English, which was oral, covered not only the removal of the frame building, but also a brick wall in the rear thereof, and a concrete floor as well. Walesby was to pay for the necessary bond and industrial insurance for English.

Walesby then applied and paid for and obtained a permit from the city to do the entire work of demolition and construction. The permit contained the following provision: 'Permission is hereby given to do the above described work, according to the conditions hereon, and according to the approved plans and specifications pertaining thereto, subject to compliance with the ordinances of the city of Tacoma.' (Exhibit A.)

At the bottom of the application and permit appears the following: 'All of the stipulations in the above permit are hereby agreed to. P. C. Walesby.'

The city's building code, section 5, paragraph 2, reads as follows: 'In demolishing any building or structure or part thereof, story after story shall be completely removed. No material shall be placed upon a floor of any building in the course of demolition. The bricks, timbers and other parts of each story shall be lowered to the ground immediately upon displacement. The material to be removed shall be properly wet to lay the dust incident to its removal.' (Exhibit H.)

English, who was an experienced man in his line of work, hired his own crew of men, used his own tools and equipment, and did the work of demolition without consulting either Walesby or Paine in any way. Paine, in fact, was rarely, if at all, in the city of Tacoma while the work of demolition was being done. While there is some dispute as to just how far the work had progressed at the time of the accident, it is clear that the interior of the building had been taken down from the top nearly to the first floor, leaving the front wall standing intact. This, it is to be observed, was in direct violation of the ordinance requiring the building to be taken down story by story.

The workmen attempted to pull the wall over and onto the lot on which the building was situated, by means of a rope. Their pulling on the rope resulted in a sagging or swerving movement of the wall, culminating in its fall into the street, with the results already stated.

At the conclusion of plaintiffs' case, the court granted a nonsuit in favor of the city; the jury returned a verdict in favor of the defendants Paine and English; the jury also returned a verdict in favor of the plaintiffs and against the defendant Walesby, but, on the motion of the latter, a judgment notwithstanding the verdict was granted by the court. Motions for new trial having been overruled, a judgment was entered embodying the above results, from which an appeal was taken by the plaintiffs.

Appellants present six assignments of error: (1) Error in excluding a certain portion of the building ordinance of the city of Tacoma; (2) error in the admission of opinion testimony; (3) error in the refusal to give two requested instructions; (4) error in a series of instructions given by the court; (5) error in dismissing the city of Tacoma; (6) error in denying motions for new trial and entering judgment notwithstanding the verdict in favor of the defendant Walesby Construction Company.

Owing to a somewhat involved situation and the contrariety of defenses presented, it seems best to adopt what we consider a logical order of discussion of the assignments, rather than to present the sequence adopted by appellants.

We take up, first, the case against the city, covered primarily by assignment No. 5. Appellants predicate liability of the city upon its duty to keep its streets in a reasonably safe condition for public travel. They aver that the issuance of a permit to demolish the building charged the city with notice that the work was in progress. The city's building ordinance provides that the building inspector was to have twenty-four hours' notice Before the demolition was begun. There is no evidence that any such notice was ever given. It is to be remembered that the permit was issued for work to be done, not in or upon the city's streets, but upon private property, with only a temporary use of a portion of the street for depositing materials to be used in the construction of the building. The city in no way participated in, or supervised, the work of demolition. It merely authorized the work by issuing a permit therefor.

In Copeland v. Seattle, 33 Wash. 415, 74 P. 582, 65 L. R. A. 333, cited by appellants, suit was brought against the city to recover damages for the death of a pedestrian, occurring in front of a building under construction, and resulting from a plank being thrown from the roof to the street below. A demurrer to the complaint was sustained, and an appeal followed. This court said, on page 418 of 33 Wash., 74 P. 582, 583: 'Clearly, a city, by granting a building permit, does not render itself liable for the negligent acts of persons constructing a building under a permit so granted. Nor is this allegation aided by the allegation that no notice or warning of the danger was given. This was not a danger that the city was bound to guard against. Had it granted to the respondent church the right to use the street, and then knowingly suffered it to so use it as to endanger the lives of persons traveling upon the street, a different question would be presented; but it was not bound to anticipate that the persons erecting the building would be so grossly negligent as to throw a board from the roof of the building into the street. If it can be held liable for such an act, there is no wrong which one of its citizens may inflict upon another for which it is not liable.'

A distinction is thus clearly indicated between a situation where the work involves the construction or repair of a...