Getzendaner v. United Pac. Ins. Co., 34255
| Decision Date | 20 March 1958 |
| Docket Number | No. 34255,34255 |
| Citation | 52 Wn.2d 61,322 P.2d 1089 |
| Parties | Mark A. GETZENDANER and Maurine K. Getzendaner, husband and wife, Appellants, v. UNITED PACIFIC INSURANCE COMPANY, a corporation, Lake City Sewer District, a municipal corporation, Valley Construction Company, a corporation, Hoagland-Findlay Engineering Company, a partnership comprised of W. W. Hoagland and E. M. Findlay, and Baugh Construction Company, a corporation, Harold R. Kaeser, d/b/a Kaeser Company, and Leiter J. Hockett, Respondents. |
| Court | Washington Supreme Court |
Evans, McLaren, Lane, Powell & Beeks, Seattle, for appellants.
Wright, Booth & Beresford, Wayne C. Booth, Seattle, for Lake City Sewer Dist.
Wright, Booth & Beresford, Paul M. Anderson, Seattle, for Valley Construction Co. Lycette, Diamond & Sylvester, and Lyle L. Iversen, Seattle, for Hoagland-Findlay Engineering Co.
Carl P. Zapp, Leo A. Anderson, Seattle, for Baugh Construction Co.
Edward R. Taylor, of Taylor & Taylor, Seattle, for Kaeser, etc.
George T. Nickell, Seattle, for Hockett.
This action was brought by Mark A. Getzendaner and his wife to recover for the alleged damage to their property and the use thereof, during a period when the defendants were constructing a sewage improvement project.
The plaintiffs were the owners of a house and lot on the west shore of Lake Washington. The defendant Lake City Sewer District, which hereinafter will be referred to as the District, is a municipal corporation organized and existing under the laws of the state of Washington. Pursuant to a vote of the people, the District adopted a comprehensive plan for sewage collection and treatment. To place the plan in operation it was necessary to secure a lot on the shore of Lake Washington. The lot purchased by the District was adjacent to the Getzendaners' property.
In order to complete the project the District called for bids as required by statute and awarded contracts to Valley Construction Company, Hoagland-Findlay Engineering Company, Baugh Construction Company, Leiter J. Hockett, and Henry Finch who subcontracted with Harold R. Kaeser. These contractors, with the exception of Henry Finch, were joined as parties defendant in this action. Each contract was complete with plans and specifications, and provided in part:
'It is also expressly stipulated that the plans, specifications and other contract documents do not purport to control the method of performing the work, but only the requirements as to the nature of the completed work; the contractor assuming the entire responsibility for methods of performing and installing the work.'
On January 8, 1952, the actual construction work was commenced by Valley Construction Company. Thereafter, until completion of the project in 1954, the other contractors undertook the performance of their contracts as determined by the progression of the over-all plan of construction.
On December 16, 1952, (prior to the time the Baugh Construction Company, Leiter J. Hockett and Kaeser Company commenced work) plaintiffs wrote a seven-page letter of protest to the District in which they stated that the construction activities on the District's lot constituted a nuisance and that, by reason of the various acts of the contractors, their real and personal property had been damaged.
On February 9, 1953, the District and the plaintiffs entered into a 'Settlement Agreement,' the terms of which provided in part:
'Now, Therefore, in consideration of the mutual covenants herein the parties agree as follows:
'(1) That in full and complete settlement of any claim of the Claimants against the District for loss of the rental, use or occupancy value of the said premises as a result of the construction activities of the District, as aforesaid, both past and those to accrue in the future during the period hereinafter mentioned, the District agrees to pay Claimants the sum of Twelve Hundred Dollars ($1200.00) for the period of January 8, 1952, until January 8, 1953, and the District agrees to pay Claimants the sum of One Hundred Dollars ($100.00) per month from the 8th day of January, 1953, while construction work continues, and until completion of the construction work * * *
'(2) This settlement is without prejudice to any other claims for encroachment by contractors or others, damage to personal property and physical damage to real property, * * *' (Italics ours.)
On April 4, 1955, the plaintiffs commenced this action, joining as parties defendant, the District and five contractors hereinbefore named. The complaint stated four causes of action: (1) Value of the use and occupation of plaintiffs' premises; (2) damage to realty during defendants' occupation and physical invasion; (3) an alternative cause for treble damages for destruction of trees and shrubs; (4) damage to personal property.
A motion was made to separately state the causes of action and a demurrer was filed on the ground that several causes of action had been improperly united. As a result thereof, plaintiffs moved to amend their complaint by interlineation, to allege that the defendants and each of them, 'acting in concert and with common design,' committed the various acts for which they were seeking recovery. The trial court granted plaintiffs' motion to amend and, thereafter, denied defendants' motion and overruled their demurrer.
On the pleadings thus framed the parties proceeded with the trial of the case to a jury. During the trial, the court asked counsel for the plaintiffs if he was proceeding on the tort-feasor theory. In response thereto the counsel replied:
When the plaintiffs sought to introduce testimony to show the damages caused by the different defendants, the court sustained defendants' objection on the ground that such proof would not come within the pleadings. However, the plaintiffs were allowed to make an offer of proof which was denied. The plaintiffs made no further motion to amend their pleadings nor did they move for a voluntary nonsuit prior to the time they completed their case. See Rule of Pleading, Practice, and Procedure 4, 34A Wash.2d 70.
At the conclusion of plaintiffs' evidence the trial court granted defendants' motion to dismiss the first and third causes of action.
Prior to submission of the case to the jury, the plaintiffs requested instructions under which the jury could find joint or several liability. The trial court refused to give the proposed instructions, but instructed the jury on the theory of joint liability, based upon the defendants acting in concert and with a common design and that, unless the jury so found, the verdict must be for the defendants. The jury returned a verdict in favor of all the defendants.
The trial court denied plaintiffs' motion for a new trial and entered judgment in accordance with the jury's verdict, dismissing the action with prejudice. The plaintiffs appeal seeking a new trial.
Appellants urge that the trial court erred (1) in dismissing their first cause of action at the conclusion of their evidence, (2) in refusing to allow them to prove segregated damages, (3) in giving various instructions on joint liability, (4) in ruling that they could only recover on the theory that all of the respondents were joint tort-feasors, and (5) in refusing to grant a new trial.
At the outset, for the purpose of disposing of this appeal in respect to the District, we will consider the only grounds on which its liability could be predicated: (1) Acts committed by the District itself; (2) imputed liability by application of the doctrine of respondeat superior.
From the record it is clear that the District itself did not commit any tortious acts and, therefore, if it is to be held liable it must be under the doctrine of respondeat superior. This doctrine is not presumed but must be proved by the person relying thereon. Hamm v. Camerota, 1955, 48 Wash.2d 34, 290 P.2d 713. By express provision in the contract, as previously set out, the district did not have authority to control the method of performing the work nor does the evidence reveal that they assumed such authority.
Any supervision of the work exercised by the District over the contractors was merely for the purpose of determining whether the work was being performed in accordance with the contract specifications. Such supervision did not change the nature of the relationship of employer and independent contractor to principal and agent. See Bill v. Gattavara, 1946, 24 Wash.2d 819, 167 P.2d 434. It is the general rule that an employer is not liable for the torts of an independent contractor. Bill v. Gattavara, supra. ...
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