Brooks v. City of Seattle
| Decision Date | 12 January 1938 |
| Docket Number | 26827. |
| Citation | 74 P.2d 1008,193 Wash. 253 |
| Parties | BROOKS v. CITY OF SEATTLE. |
| Court | Washington Supreme Court |
Department 1.
Appeal from Superior Court, King County; Robert M. Jones, Judge.
Action by Emelia Brooks, administratrix of the estate of Marvin Brooks, deceased, against the City of Seattle, for death caused by defendant's negligence. Verdict for plaintiff for $4,750, and from a judgment notwithstanding the verdict and denial of motion for new trial, plaintiff appeals.
Affirmed.
Geo. F. Hannan and W. H. Cook, both of Seattle for appellant.
A. C Van Soelen, John E. Sanders, and Jno. A. Homer, all of Seattle, for respondent.
In this action, the plaintiff, as administratrix, sues to recover damages from the city of Seattle on account of the death of her husband, alleged to have been caused by the negligence of the city.
The complaint states that the city was the owner, and engaged in the erection, of a bridge across Cedar river, at or near the town of Cedar Falls, in King county; that on March 19, 1934 in the course of construction, one of the bents, on which the decedent was working, collapsed, throwing him to the river bed below and causing his death.
It is alleged that the accident resulted from the negligent acts of the city, its supervisors, superintendents, and vice principals, as detailed in the complaint; and that, although decedent was a civil employee of the United States working under the Civil Works Administration, he was, nevertheless while so employed, 'loaned or given to the city of Seattle by the said C.W.A. as aforesaid in doing the work herein mentioned under the direction and control of the city of Seattle, its servants and agents as herein alleged.'
It is further alleged that the decedent came upon the premises and the bridge at the invitation of the defendant and, at the time of the injury, was its invitee.
That by virtue of the arrangement entered into between the defendant and the United States, evidenced by a writing, a portion of which is embodied in the complaint, the United States of America was to give the defendant men and pay their wages for working on the bridge, and the defendant was to furnish the plans, specifications, and material and have entire supervision of its erection.
As a second and alternative cause of action, it is alleged that the city had made no preliminary report or estimate of its pay roll to the Department of Labor and Industries of the State of Washington covering the men employed upon the bridge, nor did it pay or tender any premiums to the department, or make a record of any sort concerning its pay roll; that if the decedent, at the time and place, was under the workmen's compensation act of the state, then the defendant had failed to comply with the provisions of the act, in so far as it relates to the decedent, and was, at the time of the injuries and since, in default in this respect.
Damages are prayed for in the aggregate of $53,000 on behalf of the plaintiff and five minor children, ranging in ages from eleven to eighteen years.
After certain denials and admissions, the defendant, by way of an affirmative defense, pleaded contributory negligence and assumption of risk. It was also alleged that the decedent was employed by and subject solely to the exclusive direction and control of the Civil Works Administration of the United States under authority of congressional enactments, chapter 90, tit. 2, § 201 et seq., 48 Stat. 200 et seq., U.S.C.A., tit. 40, § 401 et seq., and was so employed at the time of his death; that the Civil Works Administration was engaged in and had the entire supervision and control of the construction and erection of the bridge referred to in the complaint; that the United States, through the Civil Works Administration, was prosecuting its declared policy of relieving national unemployment, and the defendant was assisting and co-operating with the Federal Government in furtherance of its policy.
The answer further alleged that the plaintiff applied for, and is now receiving for herself and minor children, compensation under the United States Employees' Compensation Acts, chapter 458, § 1 et seq., 39 Stat. 742 et seq., as amended, U.S.C.A., tit. 5, § 751 et seq., and chapter 13, § 1, 48 Stat. 351, U.S.C.A., tit. 5, § 796, and the rules and regulations promulgated under authority thereof, which statutes barred her from recovery in this action.
The cause was tried to the court and a jury. A verdict was returned in favor of the plaintiff in the sum of $4,750, being $4,745 for the widow and one dollar for each of the minor children.
After the return of the verdict, the plaintiff moved for a new trial, based principally upon the inadequacy of the verdict. The defendant moved for judgment notwithstanding the verdict. The defendant's motion was granted and the plaintiff's motion for a new trial denied. The plaintiff appeals.
Errors are assigned upon the rendition of judgment notwithstanding the verdict and the denial of the motion for a new trial.
To an understanding of the relation between the Federal Government, acting through the Civil Works Administration, and the city, it is necessary to refer somewhat in detail to the congressional legislation and the departmental rules promulgated under its authority.
The National Recovery Act of June 16, 1933, c. 90, tit. 2, § 201 et seq., 48 Stat. 200 et seq., U.S.C.A., tit. 40, § 401 et seq., provides, section 201(a), 40 U.S.C.A. § 401(a): (Italics ours.)
Section 202 of the act, 40 U.S.C.A. § 402, provides that the administrator, under the direction of the President, shall prepare a comprehensive program of public works, which shall include among other things the following: (a) Construction, repair, and improvement of public highways and park ways, public buildings, and any publicly owned instrumentalities and facilities; (b) conservation and development of natural resources, including control, utilization, and purification of waters, prevention of soil or coastal erosion, development of water power, transmission of electrical energy, and construction of river and harbor improvements and flood control.'
November 15, 1933, the Civil Works Administration, through Harry L. Hopkins, administrator, issued rules and regulations governing Civil Works Administration projects. A copy of these rules was offered in evidence by the respondent at the trial, but was excluded on objection by the appellant. The rules were undoubtedly relevant and material, because they were referred to in the city's application tendering the project to the Civil Works Administration and are necessary to an understanding of it. Apart from this, as departmental regulations issued under authority of the act of Congress, the court will take judicial notice of them. Whitney v. Spratt, 25 Wash. 62, 64 P. 919, 87 Am.St.Rep. 738.
These rules recite that the President, on November 7, 1933, created the Federal Civil Works Administration and appointed Harry L. Hopkins administrator, the purpose of the administration being to provide regular work on public works at regular wages for unemployed persons able and willing to work; the administrator was to appoint the state and local Civil Works Administrations.
It was the intention of the federal civil works administrator to use, in so far as practicable, existing work divisions of the federal, state, and local emergency relief administrations. Additional technical personnel, if found necessary, was to be appointed by the Federal Civil Works Administrator.
In respect of projects, the rules...
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