Getzendaner v. United Pac. Ins. Co., No. 34255

CourtUnited States State Supreme Court of Washington
Writing for the CourtHUNTER; HILL
Citation52 Wn.2d 61,322 P.2d 1089
Docket NumberNo. 34255
Decision Date20 March 1958
PartiesMark 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.

Page 61

52 Wn.2d 61
322 P.2d 1089
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.
No. 34255.
Supreme Court of Washington, Department 2.
March 20, 1958.

Page 62

[322 P.2d 1090] 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.

Page 63

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.

HUNTER, Justice.

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[322 P.2d 1091] Company. Thereafter, until completion of the project in 1954, the other contractors

Page 64

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:

'Whereas, claimants heretofore, on December 16, 1952, filed a seven-page protest and demand claiming that the activities carried on on the District's said lot constituted a nuisance at common law and had rendered the Claimant's property uninhabitable for domestic use, and had seriously damaged Claimants, said protest and demand covering other special and general matters of damage; and

'* * *

'Whereas, said Claimants have threatened to seek injunctive relief against the said alleged nuisance,

'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

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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.

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11 practice notes
  • Bjork v. Chrysler Corp., No. 84-131
    • United States
    • United States State Supreme Court of Wyoming
    • June 27, 1985
    ...See, e.g., Atlantic Coast Line R.R. Co. v. Boone (Fla.1956), 85 So.2d 834; Getzendaner v. United Pacific Ins. Co. (1958), 52 Wash.2d 61, 322 P.2d 1089." The Injustice of The Common Law These common-law doctrines have been roundly criticized as being "harsh" and "very unfair," Calamari and P......
  • Gaines v. Pierce County, Nos. 13163-3-I
    • United States
    • Court of Appeals of Washington
    • July 31, 1992
    ...contractor is not vicariously liable for the independent contractor's conduct. Getzendaner v. United Pac. Ins. Co., 52 Wash.2d 61, 67, 322 P.2d 1089 (1958); Woodrome v. Benton Cy., 56 Wash.App. 400, 407, 783 P.2d 1102 (1989). In any event, the common enemy rule of surface water permitted La......
  • Wong v. Swier, No. 16116.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • April 10, 1959
    ...P.2d 716, 726; Leavitt v. De Young, 1953, 43 Wash.2d 701, 263 P.2d 592, 595. 28 Getzendaner v. United Pacific Insurance Co., Wash.1958, 322 P.2d 1089, 1094; Cantrill v. American Mail Line, 1952, 42 Wash.2d 590, 597, 257 P.2d 179, 185. 29 See Part II of this Opinion. Oral testimony, even in ......
  • Whitt v. Hutchison, No. 74-812
    • United States
    • Ohio Supreme Court
    • July 2, 1975
    ...e. g., Atlantic Coast Line R. C. Co. v. Boone (Fla.1956), 85 So.2d 834; Getzendaner v. United Pacific Ins. Co. (1958), 52 Wash.2d 61, 322 P.2d 1089. The injustice of the traditional rule was that it frequently acted to extinguish a cause of action which was only partly compensated, even tho......
  • Request a trial to view additional results
11 cases
  • Bjork v. Chrysler Corp., No. 84-131
    • United States
    • United States State Supreme Court of Wyoming
    • June 27, 1985
    ...See, e.g., Atlantic Coast Line R.R. Co. v. Boone (Fla.1956), 85 So.2d 834; Getzendaner v. United Pacific Ins. Co. (1958), 52 Wash.2d 61, 322 P.2d 1089." The Injustice of The Common Law These common-law doctrines have been roundly criticized as being "harsh" and "very unfair," Calamari and P......
  • Gaines v. Pierce County, Nos. 13163-3-I
    • United States
    • Court of Appeals of Washington
    • July 31, 1992
    ...contractor is not vicariously liable for the independent contractor's conduct. Getzendaner v. United Pac. Ins. Co., 52 Wash.2d 61, 67, 322 P.2d 1089 (1958); Woodrome v. Benton Cy., 56 Wash.App. 400, 407, 783 P.2d 1102 (1989). In any event, the common enemy rule of surface water permitted La......
  • Wong v. Swier, No. 16116.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • April 10, 1959
    ...P.2d 716, 726; Leavitt v. De Young, 1953, 43 Wash.2d 701, 263 P.2d 592, 595. 28 Getzendaner v. United Pacific Insurance Co., Wash.1958, 322 P.2d 1089, 1094; Cantrill v. American Mail Line, 1952, 42 Wash.2d 590, 597, 257 P.2d 179, 185. 29 See Part II of this Opinion. Oral testimony, even in ......
  • Whitt v. Hutchison, No. 74-812
    • United States
    • Ohio Supreme Court
    • July 2, 1975
    ...e. g., Atlantic Coast Line R. C. Co. v. Boone (Fla.1956), 85 So.2d 834; Getzendaner v. United Pacific Ins. Co. (1958), 52 Wash.2d 61, 322 P.2d 1089. The injustice of the traditional rule was that it frequently acted to extinguish a cause of action which was only partly compensated, even tho......
  • Request a trial to view additional results

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