Najewitz v. City of Seattle
| Decision Date | 27 October 1944 |
| Docket Number | 29333. |
| Citation | 21 Wn.2d 656,152 P.2d 722 |
| Parties | NAJEWITZ v. CITY OF SEATTLE et al. |
| Court | Washington Supreme Court |
Rehearing Denied Dec. 5, 1944.
Department 2.
Action by Paul Najewitz against the City of Seattle and others for an injunction restraining defendants from ejecting plaintiff from property owned by defendant city.From a judgment of dismissal, plaintiff appeals.
Affirmed.
Appeal from Superior Court, King County; Hugh Todd, Judge.
Austin E. Griffiths, of Seattle, for appellant.
A. C Van Soelen and Glen E. Wilson, both of Seattle, for respondents.
This is an appeal from a judgment of dismissal entered on an order sustaining a demurrer to the amended complaint.The appellant conceives that his alleged cause of action is based upon a contract of employment with the city, and the amended complaint is replete with allegations, by way of inducement and conclusion, upon that theory.
We think, however, the ultimate facts pleaded present quite a different cause of action.The allegations of the amended complaint are, in substance, as follows:
The city owned and operated a gravel pit in the vicinity of Juanita Bay on Lake Washington; that there were a dock and a house on the property and 'various appliances or machinery for the convenient handling of sand and gravel from said pit'; that, in June, 1931, the city employed plaintiff as a watchman and caretaker of such property and 'particularly employed plaintiff to move from said city into said house upon said tract of land'; that such employment was 'to continue and last until such time as defendant city should have just cause * * * to discharge plaintiff from such employment, or until defendant city should cease to own and use said pit'; that it was agreed that only negligence or fault on the part of plaintiff in the performance of his duties as watchman and caretaker would result in his discharge; that it was further agreed that plaintiff would put and keep the house and other improvements on the property in repair and in a useful condition; that he did 'at his own cost and money' make improvements on the property to the amount of three hundred dollars; that, on October 22, 1940, defendant Sankey and others, acting under orders of defendant Wartelle, who is the city engineer ordered plaintiff off the property; that they threatened, if plaintiff refused to move, to return and forcibly eject him on October 24th.
Plaintiff prayed that an injunction issue restraining defendants from ejecting him from the property and, in the alternative, for three hundred dollars.
We think it is clear that the amended complaint, stripped of conclusions and argumentative allegations, merely sets up an agreement of the occupancy of real property.All declarations and conclusions to the contrary cannot change the legal relationship of the parties established by the ultimate facts alleged.
The legal effect of the agreement pleaded created the relationship of landlord and tenant, not that of employer and employee.In its simple and ultimate aspect, it was an agreement whereby plaintiff was permitted to occupy the house on the property in consideration of his services in taking care of and keeping the property in repair.
The tenancy created was for an indefinite term.It was not a tenancy from month to month however in contemplation of Rem.Rev.Stat. § 10619, because there was no 'monthly or other periodic rent reserved.'Nor was it a tenancy by sufferance under Rem.Rev.Stat. § 10621, because, according to the alegations of the amended complaint, the occupancy was with the consent of the owner.
At common law the tenancy would have been one at will, and as such could have been terminated without notice.32 Am.Jur.,...
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