Copeland v. City of Seattle

• Decision Date: 10 December 1903
• Citation: 33 Wash. 415,74 P. 582
• Parties: COPELAND v. CITY OF SEATTLE et al.
• Court: Washington Supreme Court

74 P. 582

33 Wash. 415

COPELAND v. CITY OF SEATTLE et al.

Supreme Court of Washington

December 10, 1903

Appeal from Superior Court, King County; Geo. E. Morris, Judge.

Action by David L. Copeland, executor of William Copeland, deceased against the city of Seattle and another. From a judgment of dismissal entered on sustaining a demurrer to the complaint plaintiff appeals. Affirmed in part; reversed in part.

C. W. Turner and R. W. McClelland, for appellant.

M Gillian and Wm. Parmerlee, for respondent city of Seattle.

Wright & Kelleher and John T. Condon, for respondent church.

FULLERTON C.J.

In this action the appellant, as executor of the estate of William Copeland, deceased, sought to recover damages for the death of his testator, caused, as he alleges, by the wrongful and negligent acts of the respondents. The respondents separately interposed demurrers to the complaint on the grounds, among others, that the appellant had no legal capacity to sue, and that the complaint failed to state facts sufficient to constitute a cause of action, which demurrers the trial court sustained, entering a judgment of dismissal after the appellant had elected to abide by his complaint.

For a cause of action the appellant alleged, in substance, that on May 15, 1901, the respondent the Swedish Evangelical Lutheran Gethsemane Church was engaged as proprietor, and under its own supervision, in the construction of a church building on its own property situated in the city of Seattle; that while it was so engaged in the construction of the building the appellant's testator passed along the street in front of the building, the street being a public thoroughfare of the city of Seattle, when the church, without fault of his testator, or warning or notice to him 'caused to be hurled down or thrown upon said street from the roof of said building, and from a distance of more than twenty feet from and above said street, a piece of plank or timber, which struck the said William Copeland upon the head, and thereby fractured and crushed his skull, and inflicted upon him a mortal wound, from which said wound he * * * died.' He further alleged that the 'building was authorized by' the respondent city, but that neither the church nor the city took any precautions whatever to prevent the use of the street by pedestrians, or placed any kind of a warning thereon notifying pedestrians that its use was dangerous. On the matter of his right to maintain the action the appellant alleged that the deceased died testate, naming the appellant as his executor; that he had been confirmed as such by the superior court having jurisdiction over the testator's estate; that the deceased left a widow dependent upon him for support, but no child or children; that the widow was damaged because of the death of the deceased in the sum of $15,000, for which sum judgment was demanded 'for the benefit of such widow * * * and * * * to her use, as damages. * * *'

Taking up the question of the sufficiency of the facts to constitute a cause of action, it is at once apparent that the demurrer of the city was properly sustained on that ground. True, it is alleged that the city 'authorized' the construction of the building, and gave no notice or warning that there was danger in passing it while it was in the course of construction; but this is insufficient either to fasten upon it the neglect of its co-respondent, which caused the death complained of, or charge it with an independent neglect. The allegation that the city authorized the construction of the building, when taken in connection with what is elsewhere alleged in the complaint, means no more than that the city granted to its co-respondent a permit to construct the building, or did not forbid its construction. It carries with it no implication of participation on the part of the city. 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.

It is not questioned that the facts stated are sufficient as against the demurrer on that ground of the respondent the Swedish Evangelical Lutheran Gethsemane Church, but it is contended on its behalf that the appellant has no legal capacity to sue. The argument is that, inasmuch as the right of one person to maintain an action for the death of another is a statutory, and not a common-law, right, and as the statute of this state grants the right only where there is a surviving widow or child or surviving children, the right to sue must be vested in those in whom the beneficial interest is vested; and an executor or administrator, or the estate which he represents, has no such interest. The sections of the Code conferring the right to maintain an action for the death of a person caused by the wrongful act or neglect of another are as follows (Ballinger's Ann. Codes & St. §§ 4828, 4838):

'The widow, or widow and her children, or child or children if no widow, of a man killed in a duel, shall have a right of action against the person killing him, and against the seconds and all aiders and abettors. When the death of a person is caused by the wrongful act or neglect of another his heirs or personal representatives may maintain an action for damages

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