Boyle v. King County

• Decision Date: 07 April 1955
• Docket Number: No. 33038,33038
• Citation: 46 Wn.2d 428,282 P.2d 261
• Court: Washington Supreme Court
• Parties: G. P. BOYLE, Appellant, v. KING COUNTY, a municipal corporation, Respondent.

Page 428

46 Wn.2d 428

282 P.2d 261

G. P. BOYLE, Appellant, v. KING COUNTY, a municipal corporation, Respondent.

No. 33038.

Supreme Court of Washington, Department 2.

April 7, 1955.

Geo H. Rummens, Kenneth P. Short, Paul R. Cressman, Richard M. Oswald, Seattle, for appellant.

Charles O. Carroll, V. D. Bradeson, Seattle, for respondent.

ROSELLINI, Justice.

Appellant operated a hog farm near Seattle, Washington. During the period involved in this suit, he fed his hogs exclusively upon garbage collected from Firland Sanatorium in Seattle under a contract granting him permission to remove all edible garbage which should accumulate there. The contract required the appellant to post a bond for faithful performance and was signed by the business manager of Firland Sanatorium on behalf of King County.

On May 14, 1952, appellant filed with respondent a claim for damages for the loss of one thousand eighty-eight pigs and seventy-nine sows, which he alleged had died during the preceding two months from the effects of sodium fluoroacetate, a poison commonly known as 1080, negligently placed or permitted to be placed in the garbage appellant obtained from Firland. After ninety days, the respondent having failed to act upon the claim, this action was brought, based upon the theories of negligence and breach of warrantly. When all the evidence had been heard, the trial court dismissed the action, finding that the appellant had failed to sustain the burden of proving facts sufficient to entitle him to recover under either theory.

There were findings: that respondent's agent, the business manager at Firland, knew when the contract was entered into that the garbage was to be used for hog feed; that appellant fed no other feed to his hogs; that the garbage was selected by him, dumped into his truck and carried directly to his farm where it was immediately cooked and fed to the hogs; and that the hogs died from the effects of 'some poison.' The court refused to make a finding that they died from '1080' and stated in its findings that the only evidence to this effect was that some of the pigs on eating the garbage 'died of symptoms characteristic of 1080 poisoning, while other pigs eating simultaneously did not show such symptoms.' It further refused to find that there was poison in the garbage at the time it left Firland. There was an affirmative finding that no '1080' was purchased or used by Firland Sanatorium in or about its premises. Appellant, the court found, had failed to sustain the burden of proving negligence on the part of the respondent.

Appellant contends that, upon the facts as found, an inference necessarily arises that the swill contained poison when he picked it up. The complaint alleged death by a specific poison, sodium fluoroacetate or 1080, and specific acts of negligence on the part of respondent in placing this particular poison or permitting it to be placed in the garbage.

We have held that if the facts constituting negligence are specifically alleged, the pleader, in presenting evidence, should be limited to proof of such facts, otherwise there would be a variance to the prejudice of the opposite party. Albin v. Seattle Electric Co., 1905, 40 Wash. 51, 82 P. 145, quoted in Dick v. Great Northern R. Co., 1942, 12 Wash.2d 364, 121 P.2d 966. Respondent objected to the introduction of any evidence pertaining to its use of poisons other than 1080; although the court permitted its introduction, it disregarded such testimony in making its findings and conclusions. Appellant assigns no error in this regard.

The appellant, however, insists that having made a finding that the hogs died of some poison, and a further finding that the hogs ate no other food than garbage from respondent's sanatorium, the court was bound to infer that there was poison in the garbage when it was collected by appellant, and that it was there through the respondent's negligence or breach of warranty. Even if we accept his apparent assumption that the limitations of the pleadings can be ignored, we cannot agree that these inferences are inescapable.

This is not a situation where the defendant had exclusive control of the agency causing the injury, and the doctrine of res ipsa loquitur, which would give rise to an inference of negligence, does not apply. The identity of the poison was never established, and it cannot be known whether it was a substance which would not ordinarily be in the garbage without respondent's negligence.

The respondent and its agents were not experts on hog feeding, nor did they represent themselves to be. There was no evidence of any negligent act or omission on the part of Firland's employees; there was considerable testimony that they exercised care in segregating the garbage and keeping the garbage cans clean, supporting a finding that respondent had breached no duty owed to the appellant.

Appellant relies upon the case of Nelson v. West Coast Dairy Co., 1940, 5 Wash.2d 284, 105 P.2d 76, 130 A.L.R. 606, to support his argument that, upon the facts found, an inference must necessarily arise that there was poison in the garbage at the time it was removed from the Sanatorium. The court there was asked to determine whether there was sufficient evidence to support the trial court's finding that milk supplied by the defendants was the proximate cause of the plaintiff's illness, undulent fever. The fact that the plaintiff had contracted undulent fever was conceded by the defendants; and the only question was whether it had been sufficiently established that the disease was caused from milk furnished by defendants--there being evidence that undulent fever may be acquired from sources other than milk. We held that in order to sustain a trial court's finding as to the source of an injury, it is necessary only that the alleged cause be the 'most probable cause,' and it is not necessary to establish it beyond a reasonable doubt. In that case, we were concerned with the quantum of evidence necessary to sustain an inference drawn by the trier of the fact, not the...