Koch v. Sackman-Phillips Inv. Co.

• Decision Date: 17 July 1894
• Citation: 9 Wash. 405,37 P. 703
• Parties: KOCH v. SACKMAN-PHILLIPS INV. CO. ET AL.
• Court: Washington Supreme Court

37 P. 703

9 Wash. 405

KOCH v. SACKMAN-PHILLIPS INV. CO. ET AL.

Supreme Court of Washington

July 17, 1894

Appeal from superior court, King county; T. J. Humes, Judge.

Action by William A. L. Koch against the Sackman-Phillips Investment Company and another. There was a judgment for plaintiff, and the investment company appeals. Affirmed.

Jenner, Legg & Williams, for appellant.

Arthur Lindsay & King, for respondent.

STILES J.

The complaint alleged that the defendants had wrongfully caused a quantity of water, sand, gravel, rocks, and debris to overflow and settle upon plaintiff's lots in the city of Seattle, to his damage; whereupon the Sackman-Phillips Investment Company answered affirmatively to the following effect: It was the owner, with one Colman, of all the lots fronting on all the streets, save one, in the Twelfth Avenue addition, the said streets having been fully dedicated to the public. Desiring to have these streets graded, it procured the passage of Ordinance 2196, by which it and Colman were authorized to grade the streets at their own expense, under the supervision of the city engineer and in accordance with plans and specifications to be prepared by him, which were required to comply with the established grade. A contract was then let to the other defendants, Taylor Bros., for the entire work, the stipulations therein being those required in contracts entered into by the city of Seattle. Taylor Bros. were thus as nearly independent contractors as the nature of the case would permit. After alleging that the contractors had performed their work in all respects according to the plans and specifications and the directions of the city engineer, and in a good and workmanlike manner, the answer concluded thus: "(11) That in the grading of said streets and avenues the said defendants Taylor Bros. performed said work wholly within the limits of said streets. That in the performance of said work as aforesaid numerous hidden springs, the existence of which was unknown to this answering defendant, were found, which said springs had no definite course, and which, with other percolating and surface waters, flowed over said streets and avenues naturally and directly, and in no manner was their course directed by any of said defendants, and any and all gravel sand, rocks, earth, and debris which may have been carried upon the premises of plaintiff as alleged in his complaint were carried and deposited there by the action of said waters in their natural, ordinary, and direct flow and was done without any negligence, carelessness, or fault of this defendant, or of Taylor Bros., so far as this answering defendant is informed. (12) That the premises of said plaintiff herein are situated below the grade, and in the natural, ordinary, and direct flow of all waters from said street, wherein the said streams were struck as hereinbefore alleged." A demurrer was sustained to the affirmative defense, upon which action error is assigned.

The position taken by appellant is that, under the ordinance authorizing it to grade the streets, it assumed no responsibility except that of paying for the work, and that all liability for the injury complained of must rest either with the city or the contractors, who were acquitted by the jury. So far as injury might accrue in such a case from the inherent defects of the plan of improvement adopted by the city through its engineer, we think this position would be a sound one as to the city; as, for instance, if the effect of an embankment were to cast surface water upon plaintiff's lots, which had not theretofore had its natural flow in that direction, or if an insufficient drain or culvert were provided, where it was plainly necessary that such water should have an outlet. So, also, if the injury were found to have been caused by negligence in construction it would seem that, although either the city or the contractor might be liable, the appellant would not be, if the facts stated in the answer were true, since the pleading shows a clear instance of an independent contract on the part of Taylor Bros. The allegations contained in the paragraphs quoted are somewhat vague and indefinite as to what caused the gravel, etc., to be cast upon plaintiff's lots, but we are inclined to view them liberally, as tending to show that the difficulty was either in the plans or in the manner of doing the work. We shall treat the case as though no demurrer had been interposed, and consider each point made on its merits, since no evidence of any materiality under the affirmative defense was rejected, except such as would have presented questions of law only, and the rejected evidence is in the record upon exceptions. The evidence, however, disclosed a state of facts which did not bear out...