G. W. Blancher v. Bank of California, 32931

• Decision Date: 21 July 1955
• Docket Number: No. 32931,32931
• Court: Washington Supreme Court
• Parties: G. W. BLANCHER and Birdie M. Blancher, husband and wife, Respondents, v. The BANK OF CALIFORNIA, a national banking association, M. R. McClelland Sons, Inc., a corporation, and Patent Scaffolding Company, Inc., a corporation, Appellants.

Page 1

47 Wn.2d 1

286 P.2d 92

G. W. BLANCHER and Birdie M. Blancher, husband and wife, Respondents, v. The BANK OF CALIFORNIA, a national banking association, M R. McClelland Sons, Inc., a corporation, and Patent Scaffolding Company, Inc., a corporation, Appellants.

No. 32931.

Supreme Court of Washington, En Banc.

July 21, 1955.

Neal, Bonneville & Hughes, Goodwin & Hicks, Eisenhower, Hunter, Ramsdell & Duncan, Tacoma, for appellants.

Henry Arnold Peterson, Tacoma, for respondents.

OTT, Justice.

December 9, 1952, the defendant Bank of California entered into a written contract with defendant contractor, McClelland Sons, Inc., to have the main banking room, including the mezzanines, cleaned and redecorated. The contract included the following items: Cleaning of the ceiling (forty-two feet in height) and side walls, a touch-up of all white spots on the ceiling, and patching and staining of the plaster. Defendant McClelland was to furnish all material, scaffolding, equipment, and labor necessary to complete the job. The contract expressly authorized defendant McClelland 'to work during any hours, including banking hours.'

With the knowledge and consent of the bank, defendant McClelland subcontracted for the necessary scaffolding and the erection thereof with defendant Patent Scaffolding Company, Inc.

We shall hereafter refer to the abovementioned parties as the bank, McClelland, and Patent.

At approximately 12 o'clock noon on December 29, 1952, plaintiff wife, Birdie M. Blancher, entered the bank with her husband. As the Blanchers proceeded toward the rear of the bank, Mrs. Blancher stopped to talk to a friend, Mrs. Larson, while Mr. Blancher went on to transact his business with the bank. The two ladies talked for about fifteen minutes. As Mrs. Blancher turned to leave, she fell over a stepladder whith was lying flat on the floor almost immediately behind her, and was seriously injured. Neither of the two ladies had previously seen the ladder, nor had they heard anything being placed behind them during their conversation.

Mr. Babbit, an officer of the bank, was called as a witness and stated that he had seen the ladder leaning against a wall of the lobby, near the place of the accident, several hours before, and that a floorman was employed to keep the floor of the lobby clear of all obstructions. If such a person was so employed by the bank, he was not called to testify. Mr. Babbit saw the plaintiff wife immediately after her fall, and was present when she was assisted to her feet. Mrs. Larson testified that, at that time, he said, 'it was very careless of this workman to have the ladder in that position.' Mr. Babbit did not deny having made this statement. The stepladder remained flat on the floor of the bank lobby for approximately one hour after the accident occurred.

Mr. Benjamin, foreman on this job for defendant McClelland, testified that it was the duty of defendants McClelland and Patent to keep the floor clear of obstructions, and that the performance of this duty was under his personal supervision. He stated that he left the stepladder leaning against a wall in the bank lobby; that the last time he saw it was just before he and his crew left for lunch, and that he had designated no other employee to perform the duty of keeping the lobby clear of obstructions during his absence. Mr. Benjamin further testified that, upon returning and seeing the stepladder on the floor, he asked Bill Ellis, a Patent employee, '* * * who put that ladder out, 'Don't you know somebody might break their neck?" and that Mr. Ellis replied, "I heaved it out there. It was in my way."

The only witness called on behalf of defendant Patent was Bill Ellis, who stated that he had never seen the ladder, and denied that he had made the above statement to Mr. Benjamin.

The jury returned a verdict against all three of the defendants, holding them jointly liable in damages for the injuries sustained by plaintiff wife. The court denied motions for judgment notwithstanding the verdict or, in the alternative, for a new trial, and entered judgment based upon the verdict. All of the defendants have appealed.

Each of the appellants assigns as error the failure of the court to grant motions for dismissal and for judgment notwithstanding the verdict. In considering these motions, the court must interpret the evidence most strongly against the moving party and in the light most favorable to the opposing party. Fedland v. Teshera, 1952, 40 Wash.2d 256, 260, 242 P.2d 751, and cases cited; Kemalyan v. Henderson, 1954, 45 Wash.2d 693, 696, 277 P.2d 372, and cases cited; Fink v. Dixon, Wash., 285 P.2d 557, and cases cited.

Applying this rule to the facts in this case, the court did not err in denying these motions. There was sufficient evidence for the jury to conclude that each of the appellants was guilty of negligence as follows:

First, the bank, as a business invitor, was negligent in failing to use due care in maintaining its floor in a reasonably safe condition, considering the nature of its business and the circumstances surrounding the particular event. Hanson v. Lincoln First Federal Savings & Loan Ass'n, 1954 45 Wash.2d 577, 277 P.2d 344, and case cited. The bank was inviting patrons into its place of business during banking hours, where, knowingly and intentionally, it was carrying on another and hazardous activity, that of having the bank redecorated. The bank owed a duty to respondent wife, a business invitee, to exercise reasonable care to protect her against injuries which could be inflicted due to this hazard. This the bank failed to do. The testimony disclosed that the bank either (1) had a man whose duty it was to supervise the lobby and who failed to do so, or (2) that there was no such employee appointed by it to perform such duty, or (3) that it had appointed a third person to carry out the duty of supervision, who had failed to perform. There was a failure on the part of the bank to exercise due care, if any one of these negligent acts was established.

Second, appellant McClelland assumed the duty to keep the lobby clear of obstructions and to exercise reasonable care to protect the business invitees of the bank from injury at all times during its performance of the contract. It likewise failed to perform its duty. Appellant McClelland admitted, by its answer to paragraph II of respondents' amended complaint, that the bank lobby 'was under the management and control of defendant bank in conjunction with the other defendants.' This admission was supported by the testimony of Mr. Benjamin, McClelland's foreman, that he was the man designated to perform this duty. He testified as follows:

'Q. And who directed you to keep the lobby or the main travelled portion of that lobby clear of obstructions? A. Mr. McClelland for one, and Mr. Babbit [an officer of appellant bank], also.'

With this admitted obligation to the parties and bank patrons, Mr. Benjamin left the lobby of the bank wholly unattended during the noon hour, one of its busiest times. From this evidence, the jury was justified in finding McClelland negligent.

Third, as to appellant Patent, the evidence is conflicting. The witness Benjamin testified that Ellis, Patent's only witness, admitted that he had placed the stepladder on the floor. The statement was denied by Mr. Ellis. From its verdict, the jury undoubtedly concluded that the stepladder had been placed there as contended by Mr. Benjamin, and that this act constituted negligence. This conclusion, reached after considering conflicting testimony, was within the sole province of the jury. Heitfeld v. Benevolent and Protective Order of Keglers, 1950, 36 Wash.2d 685, 699, 220 P.2d 655, 18 A.L.R.2d 983.

We conclude that there was sufficient evidence in this case for the jury to determine that each of the appellants was negligent.

In determining joint liability, the jury was instructed as follows:

'Instruction No. 12: 'If you find that any particular defendant is guilty of negligence in any of the particulars...