Murphy v. City of Tacoma

• Decision Date: 27 September 1962
• Docket Number: No. 35748,35748
• Citation: 60 Wn.2d 603,374 P.2d 976
• Parties: Don D. MURPHY and Elizabeth L. Murphy, husband and wife, Appellants, v. The CITY OF TACOMA, a Municipal Corporation, Respondents.
• Court: Washington Supreme Court

Page 603

60 Wn.2d 603

374 P.2d 976

Don D. MURPHY and Elizabeth L. Murphy, husband and wife, Appellants, v. The CITY OF TACOMA, a Municipal Corporation, Respondents.

No. 35748.

Supreme Court of Washington, Department 2.

Sept. 27, 1962.

Burton W. Lyon, Jr., Tacoma, for appellants.

Marshall McCormick, Paul J. Nolan, Quinby R. Bingham, Tacoma, for respondents.

DONWORTH, Judge.

This is an appeal from an order granting the city's motion for judgment n. o. v. and striking the jury's awards totalling $10,000 for mental anguish, suffering, discomfort, annoyance and inconvenience in three consolidated actions for damages to appellants' real property, alleged to have been caused by the acts of the city performed in connection with a public improvement described in this opinion.

This appeal is stated to be 'a consolidated appeal on a short record.' The appropriateness of this characterization may seem questionable in view of the fact that the record contains transcripts of 376 pages, a statement of facts exceeding 1,000 pages (with 78 exhibits referred to therein), and two briefs of approximately 100 pages each (containing 85 citations of prior decisions of this court exclusive of those from other jurisdictions).

In an endeavor to intelligibly set forth the rather involved factual pattern, we have inserted herein a map of the area involved which is based upon Exhibit 35.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Appellants are (or were at the time of the entry of the decree of appropriation in the condemnation proceeding hereinafter mentioned) the owners of four parcels of land in Pierce County located about three miles south of Eatonville. For convenience, they are numbered from 1 to 4, inclusive.

Parcel No. 1 consists of 53 acres of unimproved land (partially cleared) purchased in 1951, of which about nine acres were damaged by the public improvement made by the city later described herein.

Parcel No. 2 was purchased in 1948 and consists of over 500 acres, which is occupied by appellants as their home. It is improved by their residence and outbuildings. Between this property and the scene of the city's operations is a ten-acre tract belonging to the city of Eatonville.

Parcel No. 3 consists of 65 acres of unimproved and partially cleared land which was purchased in 1959 for $1,625 after appellants had filed a claim against the city for damages allegedly caused by the slide to other parcels. About four acres of this property was claimed to be damaged by the city's acts.

Parcel No. 4, consisting of 40 acres, was also purchased in 1959 after a claim and a suit based on damages to other property had been filed against the city. It lies between Parcel No. 2 and the slide area.

The three suits which were consolidated for trial arose as the result of a slide on a public road known as the Eatonville-Alder cut-off highway in Pierce County. In 1943, the city constructed a hydro-electric project on the Nisqually River, which flooded the existing road. The city consequently undertook to relocate the highway and to build a concrete overpass over certain railroad tracks (which were also relocated because of the flooding). To the north of this overpass, it was necessary to make a substantial fill to enable traffic to pass over this overpass.

The concrete overpass and the fill constituting the north approach thereto were constructed by the city under an agreement with Pierce County. The road was opened for public travel in 1944. Thereafter, the fill started to settle and the city, from time to time, placed many yards of material on the fill in an attempt to keep the surface of the road up to its original grade. During the next four years, the city placed an estimated 7,000 to 10,000 cubic yards of material in the fill. Between 1948 and the time of trial (April, 1960), 36,320 yards were added. This latter amount was more material than was originally put in the fill when it was first made.

The agreement between the city and Pierce County contemplated that the city would convey to the county the concrete viaduct and its approaches, but when the city, in 1952, tendered performance, the county commissioners declined to accept them for twenty reasons stated in their letter to the city.

The court entered a pretrial order limiting the issues, which is described in appellants' brief as follows:

'A pre-trial order was entered by the trial judge which provided that as part of the judgment in the damage actions by Murphys that the court might enter an order requiring the City to stabilize the road or relocate the same within 30 months after final judgment. The issue of nuisance or negligence in the original construction of the overpass fill was eliminated but not as to nuisance which the plaintiffs Murphy alleged caused them to sustain personal and property damages. The issue of wilful damage to Murphys and their property was limited in time to the dates on which Murphys acquired title to their properties. Damages for constitutional taking was limited to a period of ten years and damages for constitutional damaging was limited to three years.'

We do not deem it necessary to detail the conflicting theories of the parties as to what caused this continuing sliding of the fill nor the amount of the physical damages which appellants' various parcels sustained on account of such sliding.

In view of the only action of the trial court which is stated by appellants in their single assignment of error (quoted below) to be a ground for reversal, we will confine our discussion to the jury's answers to the special interrogatories, its verdicts, and the granting of the city's motion for judgment n. o. v. as to the awarding of the two items for mental anguish, suffering, annoyance, discomfort, and inconvenience.

Upon cross-examination, Don Murphy testified concerning his personal damages as follows:

'Q. Mr. Murphy, what effect, if any, did the continuation of this slide problem, in relation to your property and your projected development of it have on you personally during the period of time from the time it became a problem up to the present time? * * * A. Well, at that time why I had the intentions of putting in this housing development with Mr. Sutter and his associates and going ahead and making a resort out of the place with the residue of the money from the housing development, starting that phase of the thing, but the slide came and interrupted my plans, and in January of 1956 I had a meeting with Mr. Pflugmacher and Mr. Hanson of Tacoma City Light and Mr. Pflugmacher told me at that time that he was sure that he could get a settlement for me from the City and get the thing stopped, I thought.

'Well, this continued intermittently with promises that were never fulfilled and remedial work that was never done causing me a great deal of worry and mental suffering due to the fact that I could not figure any way to go ahead with the project of putting the Flying 'M' Ranch into income-producing property, and I continued to talk to the City, finally calling in my attorney, Mr. Lyon, and then we continually kept after them and we were led to believe at various times that they were going to correct this situation and they were going to remunerate me for the damages done to me but it was something just like a bottomless pit, you could step in it and you'd never get up, there was nothing you could ever hang your hat on. There was no attempt at any point by the City to settle with me and to correct this nuisance and damage that was occurring and continuing to occur day be day. Not only were my plans upset but my normal operating capital was tied up in this project on which there was no return of money and it caused both me and my wife extreme financial difficulties and a lot of worry and suffering. * * * Q. Well, what I am trying to figure out is how you got the dollars and cents. You have indicated that you couldn't put it into operation, some of your promotions or developments. Well, did you sit down and say, 'I missed on one and that is $5,000', or what did you do, how did you get a figure of $47,500? A. Well, at the outset of the thing, Mr. Henriot, I had enough of my own money tied up in this venture, that's a fact that it was tied up and that I couldn't use it and that this was my operating capital that maybe I turned, normally I turned maybe every ninety days and it has been tied up there for five years and it causes me great mental anguish to have my money tied up here and see this ruination of the property continuing and nothing being done about it. I mean, if there had been something constructively done at any time during the last five years so I would have something to hang on to and say, 'Well, now, here, I can start figuring again', it would have stopped. Q. So you got mad and you figured because you got mad and you couldn't do your plan you would ask for $47,500, is that right? A. I resent that, Mr. Henriot. Q. Well, I am just asking. A. I did not get mad. I mean, I merely got perturbed. I cannot get mad and think, and at least I tried to be a thinker. I am getting too old to get mad anyway and the thing is as I previously stated, when I don't have my mind clear, that I am involved in this problem, my money is tied up, this thing is moving every day and I cannot proceed in an orderly fashion with the business at hand, why it does cause me mental anguish. Q. Did it cause any disturbance at home, this mental anguish that you suffered? A. I would say it did, yes. Q. Well, then, in turn, did you worry about these disturbances at home? A. Not particularly. Q. Did this mental anguish you were suffering make your wife unhappy? A. It certainly did. Q. Did it make you unhappy to see her unhappy? A. That's right, it did. Q. It was all the fault of the City of Tacoma? A. Yes, it was. * * * Q. The idea that you might lose part of your property to the City of Tacoma to stabilize the road was part of this mental...