Board of Regents of University of Washington v. Frederick and Nelson, 44799

• Decision Date: 18 May 1978
• Docket Number: No. 44799,44799
• Citation: 579 P.2d 346,90 Wn.2d 82
• Court: Washington Supreme Court
• Parties: BOARD OF REGENTS OF the UNIVERSITY OF WASHINGTON, an Agency of the State of Washington, Respondent-Cross-Appellant, v. FREDERICK & NELSON, a division of Marshall Field & Co., a Foreign Corporation, Paul Timmerman and Jane Doe Timmerman, his wife, doing business as Paul Timmerman Company, Roger Rademacher and Jane Doe Rademacher, his wife, doing business as Modulars by Rademacher Company, Appellants.

Page 82

90 Wn.2d 82

579 P.2d 346

BOARD OF REGENTS OF the UNIVERSITY OF WASHINGTON, an Agency of the State of Washington, Respondent-Cross-Appellant, v. FREDERICK & NELSON, a division of Marshall Field & Co., a Foreign Corporation, Paul Timmerman and Jane Doe Timmerman his wife, doing business as Paul Timmerman Company, Roger Rademacher and Jane Doe Rademacher, his wife, doing business as Modulars by Rademacher Company, Appellants.

No. 44799.

Supreme Court of Washington,En Banc.

May 18, 1978.

Skeel, McKelvy, Henke, Evenson & Betts, John Roberts, Clinton, Fleck, Glein & Brown, Robert Brown, Reed, McClure, Moceri & Thonn, Roy Moceri, William Hickman, Seattle, for appellants.

Helsell, Fetterman, Martin, Todd & Hokanson, William Helsell, Linda Cochran, Seattle, for respondent-cross-appellant.

BRACHTENBACH, Associate Justice.

Plaintiff University sued for damages resulting from a fire at its health science laboratory. The University contracted with defendant Frederick & Nelson (F & N) to purchase furniture for that laboratory. The contract was negotiated through defendant Timmerman, a sales representative for defendant Rademacher, the manufacturer of the furniture.

Plaintiff contended that a fire occurred as a result of defendant Rademacher's conduct in the performance of the contract. By special interrogatory the jury found that defendant Rademacher was negligent and responsible for the fire. Under the court's instructions the other defendants were also held liable. Defendants appeal from a judgment of $237,669.04 entered upon a jury verdict. We reverse.

These are the facts. The University needed certain furniture for its health science laboratory. It let bids. Sales representative defendant Timmerman asked F & N to bid, using furniture manufactured by defendant Rademacher. Defendant F & N was the successful bidder and consequently occupies the position of the seller in this dispute. The contract terms will be detailed later.

After part of the furniture had been installed, the University notified the seller, F & N that the furniture did not meet specifications. Two meetings were held to resolve the problem, resulting in defendant Rademacher's agreement to refinish the furniture on site. Refinishing involved sanding, oiling and wiping down the furniture. The night of the fire, Rademacher's workmen left the site at approximately 1:30 a.m. The fire was discovered about 7:30 a.m. It was plaintiff's theory that oily rags were left on the premises and that spontaneous combustion caused those rags to ignite the fire which caused plaintiff's damage.

Three issues are raised by defendant/appellants. Plaintiff, on cross appeal, raises a fourth question. First, the court instructed that if the defendant Rademacher, the manufacturer of the furniture and the one doing the refinishing, was found to be negligent, then the defendants F & N, the seller, and defendant Timmerman, the sales representative, were also liable. Thus the court held, as a matter of law, that in the bringing of the furniture up to specifications the manufacturer was the agent of the other two defendants, the seller and the sales representative. These two defendants held responsible under this agency theory claim that the instruction was erroneous.

The instruction was proper under the facts. The contract between the University and the seller (F & N) contained a warranty that the goods would conform to the specifications of the bid. Sales representative Timmerman, in writing, guaranteed the furniture against defects.

It is argued that Rademacher, the manufacturer, was an independent contractor for whose actions the other defendants are not liable. There is a clear exception to that general principle. When one contracts to perform a specified service or supply a product of a certain quality, liability for negligent performance of the contract cannot be escaped by engaging an independent contractor to perform the very duty which the contract requires. This is the rule of White Pass Co. v. St. John, 71 Wash.2d 156, 427 P.2d 398 (1967). In White Pass, the owner contracted with a general contractor to construct a ski lodge for the owner. The general contractor engaged a subcontractor, St. John, to install the floor covering. The negligence of the subcontractor caused the fire. The owner sued the general contractor and the subcontractor. We held that the general contractor was liable along with the subcontractor. We said at page 161, 427 P.2d at page 401:

The theory of liability is that the contractor has agreed to perform the work specified in the contract. In the absence of a provision that he may subcontract the work and that the owner will look only to the subcontractor for compensation for damage if the work is not properly done, there is an implied undertaking on the part of the contractor to see that the work is performed with due care. As far as his relations with the owner are concerned, the subcontractor employed by him is his agent for whose negligence he is responsible to the owner.

(Citations omitted.)

Defendants argue that the White Pass rule is limited to construction contracts and that liability is predicated upon the right to control arising out of an employer-employee relationship. Thus the seller and the sales representative would have us hold that the White Pass exception does not apply to a sales contract and, in any event, absent control over defendant Rademacher, they cannot be liable.

The words "employer" and "employ" in White Pass were not used as words of art in the legal sense. It is clear that the subcontractor in White Pass was not "employed" in an employer-employee relationship. The general contractor contracted with the subcontractor to perform one of the duties which the general contractor was bound to perform by his contract with the owner.

Is the White Pass rule limited to building contracts? We perceive no policy reasons why it should be so limited. The rule is not dependent upon the subject matter of the contract. Nor is it dependent upon control over the subcontractor.

The rule, rather, depends upon the nature of the contractual obligations of the person sought to be held liable for the acts of a third person. Here defendant Rademacher was performing a duty which had been contractually assumed by the two other defendants. Those defendants allowed Rademacher to fulfill their obligations to bring the furniture up to specifications and they are liable for his actions in performing their contractual duties.

Defendants next assign error to the court's instruction which withdrew from the jury the question of whether the fire had been caused by arson. One of the defense theories was that the fire was arson caused. It is basic that each party is...