Maki v. Aluminum Bldg. Products, 38183

• Decision Date: 11 January 1968
• Docket Number: No. 38183,38183
• Citation: 436 P.2d 186,73 Wn.2d 23
• Court: Washington Supreme Court
• Parties: William G. MAKI and his wife, Elizabeth Maki, Leonard Radke, and his wife, Dorothy Radke, Andrew Torgerson and his wife, Clara Torgerson, Harrel F. Rice and his wife, Mearline Rice, and Norman Kiehn and his wife, Mildred Kiehn, Appellants, v. ALUMINUM BUILDING PRODUCTS, a general partnership, and Aluminum Building Products Company, a corporation, Respondents.

Page 23

73 Wn.2d 23

436 P.2d 186

William G. MAKI and his wife, Elizabeth Maki, Leonard Radke and his wife, Dorothy Radke, Andrew Torgerson and his wife Clara Torgerson, Harrel F. Rice and his wife, Mearline Rice and Norman Kiehn and his wife, Mildred Kiehn, Appellants, v. ALUMINUM BUILDING PRODUCTS, a general partnership, and Aluminum Building Products Company, a corporation Respondents.

No. 38183.

Supreme Court of Washington, Department 1.

Jan. 11, 1968.

Rehearing Denied March 1, 1968.

Hamilton, Lynch & Kuntz, Wenatchee, for appellant.

Murray & Hanna, Wenatchee, Ned W. Kimball and David T. Ellis, Waterville, for respondent.

WEAVER, Judge.

May 16, 1963, pursuant to Pleading, Practice and Procedure Rule 20(a), ¹ five plaintiffs, William G Maki, Leonard Radke, Andrew Torgerson, Harrel F. Rice, and Norman Kiehn, and their respective wives, commenced this action against Aluminum Building Products, a general partnership (the membership of the partnership is not disclosed), and the partnership's alleged successor, Aluminum Building Products Company, a corporation.

The five statements of claim, not separately stated, arise from five unrelated transactions alleged to have occurred on different dates ² during a period of almost three months. The transactions were alleged to be of the same general character--the sale and installation of aluminum siding upon plaintiffs' residences. The sales were alleged to have been made by agents of defendant under false and fraudulent representations, which, as pleaded, vary with each plaintiff.

The complaint is verified by each plaintiff. Although defendant states in its appellate brief that the contract between plaintiff Maki and defendant was attached to plaintiffs' complaint, we do not find that written contracts were pleaded by any plaintiff, and there is no copy of a written contract attached to plaintiffs' complaint as it appears in the certified transcript before us.

Plaintiffs appeal from (1) an order striking certain paragraphs from the complaint; (2) an order granting separate trials; and (3) a summary judgment for defendant.

June 11, 1964, defendant moved to strike identical ³ paragraphs 5, 9, 13, 17 and 21 of the complaint upon the ground that the allegations therein contained 'are on their face contrary to the law' of this state. They allege 'criminal indifference to civil obligations' and pray for $5,000 punitive damages.

The order of June 22, 1964, striking the designated paragraphs of plaintiffs' complaint was properly entered. From Spokane Truck and Dray Co. v. Hoefer, 2 Wash. 45, 25 P. 1072, 11 L.R.A. 689 (1891), to the present day, this court has held that the doctrine of punitive damages is unsound in principle and that such damages cannot be recovered in this jurisdiction, absent statutory authorization.

June 11, 1964, defendant filed its motion for separate trials of the claim for relief brought by each plaintiff upon the grounds that separate trials 'will expedite a determination of the issue in each claim and will better meet the ends of justice.' The motion was filed pursuant to Rule of Pleading, Practice and Procedure 20(b) and 42(a) (Now Civil Rule for Superior Court 20(b) and 42(b), 71 W.D.2d No. 1 A (May 5, 1967) 35, 70).

June 22, 1964, the court entered an order stating

that the said five causes of action be and hereby are severed.

IT IS FURTHER ORDERED that as to the plaintiff Maki, the complaint on file herein may keep the same cause number and be considered as one of the five causes of action; that the other four causes of action should be separately filed and given separate numbers by the Clerk.

The record before us indicates that the only further action by plaintiffs Radke, Torgerson, Rice and Kiehn is the appeal to this court.

The right to order separate trials is a matter of discretion vested in the trial court by the rules. We find nothing in the record that shows an abuse of discretion; hence, the order of June 22, 1964, granting separate trials is affirmed. Slippern v. Briggs, 66 Wash.2d 1, 394 P.2d 229 (1964).

October 20, 1964, defendant filed its motion for summary judgment. The motion is carefully worded; it does not disclose against whom the summary judgment is sought. As the record is presented to us, we conclude that the motion was sought against all Five plaintiffs; for the summary judgment entered January 19, 1965, dismisses 'plaintiffs complaint.'

As to plaintiffs Radke, Torgerson, Rice and Kiehn, their complaint was the only instrument before the court when it considered defendant's motion for summary judgment. Defendant had not filed an answer to the complaint; no affidavits supported the motion for summary judgment; the only contracts before the court were the ones pleaded; the pleaded contracts did not set forth any conditions and were not identified as being either oral or written. We do not imply that Rule of Pleading, Practice and Procedure 56 requires an answer or affidavits before a motion for summary judgment can be filed; but in the posture in which we find the...