Ettor v. City of Tacoma

• Decision Date: 02 January 1914
• Citation: 77 Wash. 267,137 P. 820
• Court: Washington Supreme Court
• Parties: ETTOR et ux. v. CITY OF TACOMA et al. HOWARD et al. v. SAME.

137 P. 820

77 Wash. 267

ETTOR et ux. v. CITY OF TACOMA et al.

HOWARD et al. v. SAME.

Supreme Court of Washington

January 2, 1914

Department 1. Appeal from Superior Court, Pierce County; W. O. Chapman Judge.

Actions by Manley Ettor and wife, and by Edwin Howard and others against the city of Tacoma and the Chicago Milwaukee & St Paul Railway Company. From a judgment of nonsuit and dismissal, Ettor and wife appeal; and from a judgment of dismissal entered upon a refusal to plead further after an order sustaining a demurrer to the complaint, Howard and others appeal. On further consideration after remittitur from the United States Supreme Court. Judgment in Ettor Case reversed and remanded for new trial, and judgment in Howard Case reversed and remanded, with instructions to overrule the demurrer, etc.

Boyle, Warburton & Brockway, of Tacoma, for appellants Ettor.

T. L. Stiles, of Tacoma, for respondent City of Tacoma.

Geo. W. Korte, of Seattle, for respondent Railway Co.

CHADWICK, J.

The judgment of this court reported in 57 Wash. 50, 106 P. 478 107 P. 1061, and 57 Wash. 698, 106 P. 481, 107 P. 1064, was reversed by the Supreme Court of the United States. A remittitur has come down in each case commanding further proceedings not inconsistent with the decision of that court. Ettor v. City of Tacoma, 228 U.S. 148, 33 S.Ct. 428, 57 L.Ed. 773.

The defendant Chicago, Milwaukee & St. Paul Railway Company, of Washington, and the city of Tacoma were sued by plaintiffs as joint tort-feasors. The liability of the railway company to respond in damages was not discussed by this court. It was argued in the briefs filed by the railway company in the Supreme Court of the United States, but that court did not pass upon the question. That court went no further in its opinion than to decide the particular question upon which our former opinions turn, that is, the validity and constitutionality of the act of the Legislature of this state. Session Laws 1909 (Laws 1909, p. 151, § 1). The railway company and the city filed separate answers denying liability on grounds other than those based upon the statute of 1909. The parties defendant appeared separately and filed briefs in this court. Their proffered defenses have never been passed upon. This being made to appear by motion, we believe that the defendants are entitled to have the questions raised by them passed upon, and that our consideration of them will not be a proceeding inconsistent with the decision of the Supreme Court of the United States.

In the year 1906 the railway company was seeking entrance into and terminal facilities at the city of Tacoma. It had acquired certain property for terminal uses. The property was at that time platted ground and a part of what was known as Indian addition to the city of Tacoma. It was not embraced within the corporate limits of the city. The railway company entered into a contract with the county commissioners of Pierce county, wherein it agreed that in consideration of the vacation of a part of M and N streets, in the plat of Indian addition, it would, at its own cost, grade a roadway 30 feet wide in the center of Twenty-Sixth street, in Indian addition. The work of grading was to be done under plans to be approved by the county engineer. These plans were prepared and submitted to the county engineer for approval. Pending the contract and the offer of the plans, a movement to bring Indian addition within the corporate limits of the city was put under way, and the county engineer suggested to the engineer of the railway company that he take the plans to the city engineer for his approval. This was done. The city engineer made some slight suggestions. He drew some marks upon the plat to indicate his ideas of what the grade should be. In the spring of 1908 the railway company graded Twenty-Sixth street. The city engineer was upon or about the the work from time to time. He had a copy of the contract with the county commissioners. The mayor and the commissioner of public works were aware that the work was going on, and upon one occasion, if not more, the commissioner made some suggestion with reference thereto. Some of the city councilmen, probably a minority of them, visited the work and were aware of the fact that it was being done by the railway company. The members of the committee on streets were also upon the ground and had notice that the work was being done. In the progress of the work a water main was broken. This was repaired by the city under the direction of the city engineer. The work was completed to the satisfaction of the city engineer, but was never formally accepted by the city. Thereafter plaintiffs brought an action to recover damages under section 47, c. 84, Laws 1893, p. 207, and section 48, c. 153, Laws 1907, p. 336.

Upon this state of facts we are of the opinion that the railway company is not liable to answer in damages. The theory upon which it is sought to hold the railway company is that the city being a tort-feasor and having assumed to do or having permitted the work to be done under circumstances that would estop it to deny its responsibility and the agency of the railway company, its agent is bound to answer with the principal. It will be borne in mind that the railway company occupies no part of the street in front of appellants' property. It has done no more than improve an unimproved street according to plans approved by and under the direction of the city engineer. We do not understand that it is charged that the work was negligently done. This court is committed to the doctrine that where work is done by a contractor for the city in accordance with plans furnished by the city and under its direction, and it is not made to appear that the work has been negligently done, the contractor is not liable. Kaler v. Puget Sound Bridge & Dredging Co., 72 Wash. 497, 130 P. 894; Casassa v. Seattle, 66 Wash. 146, 119 P. 13; Potter v. Spokane, 63 Wash. 267, 115 P. 176; Quinn v. Peterson & Co., 69 Wash. 207, 124 P. 502; Stern v. Spokane, 73 Wash. 118, 131 P. 476. In principle the railway company is in the same situation as a compensated contractor. It had no interest other than to do the work and to receive its compensation, which it did in property instead of money.

We notice, however, that it is said by the plaintiffs, in their brief filed in the Supreme Court of the United States, that 'When the city, by its engineer, ordered the work to be done in a certain manner, and vacated M and N streets, and the railway company accepted such vacation and built the grade as directed by the city, they impliedly agreed that their rights and liabilities the one to the other should be as set out in the order of the board. One of these provisions was that the grading of the street should be at the railway company's 'own expense, and without cost or charges to or upon the said county of Pierce.' Under the statute governing the city, which by the mutual acceptance of the parties succeeded in the contract to the county of Pierce, a part of this expense so contracted to be paid was payment of compensation to the property owners. The railway company has therefore, by proceeding as though the original order of vacation were a contract between itself and the city, agreed to pay plaintiffs in error for the injury which they would sustain. The promise was obviously not only for the benefit of the city, but for the benefit of the property owners, and they may rely upon it in an action to recover such damages. This is not only the universal rule in the United States, but is made positive by the provisions of the Washington Code (Rem. & Bal. § 179) that 'every action shall be prosecuted in the name of the real party in interest,' except as otherwise specially provided.' We are unable to follow the reasoning of counsel. The words 'own expense and without cost or charges to or upon the said county of Pierce,' cannot be given the meaning contended for for two reasons: First, it is obvious that the expenses, costs, and charges contemplated were the cost of making the grade conform to the plans and specifications. The words 'costs or charges' add nothing to the word 'expense.' The word 'exp...