Nelson v. Sponberg, No. 34251

CourtUnited States State Supreme Court of Washington
Writing for the CourtROSELLINI; HILL
Citation318 P.2d 951,51 Wn.2d 371
PartiesEverett P. NELSON, Respondent, v. Einer H. SPONBERG and Catherine Sponberg, husband and wife, doing business as Sponberg Welding, Appellants.
Docket NumberNo. 34251
Decision Date05 December 1957

Page 371

51 Wn.2d 371
318 P.2d 951
Everett P. NELSON, Respondent,
v.
Einer H. SPONBERG and Catherine Sponberg, husband and wife,
doing business as Sponberg Welding, Appellants.
No. 34251.
Supreme Court of Washington, Department 2.
Dec. 5, 1957.

Page 372

[318 P.2d 952] Ralph M. Rogers, Tacoma, for appellants.

Lycette, Diamond & Sylvester, Frank H. Roberts, Jr., Seattle, for respondent.

ROSELLINI, Justice.

The plaintiff, a doctor, owns and maintains his offices in a building in Tacoma consisting of a main floor and basement. At the rear of this building is an outside stairway, leading to the basement. There is another stairway at the front of the building, leading to the doctors' offices. The rear stairway is 48 inches in width, of concrete construction, with walls on either side. In January, 1953, the plaintiff acting through his agent, the caretaker, engaged the defendant Einer Sponberg, a welder (hereafter referred to as the defendant), to install an iron-pipe handrail down the outside wall, the handrail to be an extension of an iron rail which then existed around the top of the stairwell. The designing of the handrail was left to the defendant's discretion.

The defendant visited the premises and examined the stairway. He looked through the door, which was opposite the wall on which the handrail was to be installed, and observed that the entrance led to what appeared to be a utility room or hallway. He decided not to extend the handrail the full length of the stairway but to terminate it on the second step from the bottom, in order to allow clearance space for moving large objects in and out of the basement. The handrail was completed in February, 1953, and was accepted, as installed, without complaint.

Page 373

On January 22, 1954, a Mrs. Fay Cress, a patient of one of the two doctors who maintained their offices in the basement, was directed by a nurse to use the back stairway to reach a restroom on the first floor of the building. In returning down the back steps and while stepping from the last step to the base of the stairwell, Mrs. Cress slipped and fell, fracturing her ankle. She sued the plaintiff for her injuries, alleging that he was negligent in failing to provide a proper handrail, as required by city ordinance. The plaintiff settled this action for $4,000, and on May 28, 1956, brought suit against the defendant, alleging, as a first cause of action, that the defendant had breached express and implied warranties that the handrail would conform to the city's building requirements and also, as a second cause of action, claiming indemnity on the ground that the injuries were due to the defendant's primary negligence. The answer consisted of a general denial and an affirmative allegation that the action was barred by the statute of limitations.

The action was tried to the court, which found that the defendant had impliedly warranted that he would install the handrail in compliance with the building code of the city of Tacoma; that the handrail was defective in this regard, in that it did not extend the full length of the stairway; that had the handrail extended to the end of the stairway, Mrs. Cress could have 'taken hold of it.' The court further found that the negligence of the defendant was primary and active, whereas that of the plaintiff was passive, consisting of a failure to inspect; that the defense of the Cress action had been tendered to the defendant and had been refused, and that the settlement made by the plaintiff was reasonable and prudent. The conclusion based upon these findings was that the plaintiff was entitled to be indemnified by the defendant for the payment made to Mrs. Cress under the settlement and the attorney's fees and costs...

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28 practice notes
  • Blockston v. United States, Civ. No. 13855.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • January 4, 1968
    ...The Toledo, 122 F.2d 255 (2 Cir., 1941), cert. den., 314 U.S. 689, 62 S.Ct. 302, 86 L.Ed. 551 (1941); Nelson v. Sponberg, 51 Wash.2d 371, 318 P.2d 951 (Sup.Ct.Wash., 13 On the other hand, Hydrotherm contends that the settlement was invalid because Judge Winter took no testimony on the issue......
  • Royal Caribbean Cruises Ltd. v. Swedish Health Services, 76275-3-1
    • United States
    • Court of Appeals of Washington
    • October 22, 2018
    ...in original. [15] Emphasis in original. [16] Emphasis in original. [17] For the first time on appeal. RCCL cites Nelson v. Sponberg, 51 Wn.2d 371, 374-75, 318 P.2d 951 (1957), to argue equitable indemnity does not require a legal duty. RCCL did not raise this argument below. See RAP 9.12 (o......
  • Royal Caribbean Cruises Ltd. v. Swedish Health Servs., Corp., No. 76275-3-I
    • United States
    • Court of Appeals of Washington
    • October 22, 2018
    ...Emphasis in original. 15. Emphasis in original. 16. Emphasis in original. 17. For the first time on appeal, RCCL cites Nelson v. Sponberg, 51 Wn.2d 371, 374-75, 318 P.2d 951 (1957), to argue equitable indemnity does not require a legal duty. RCCL did not raise this argument below. See RAP 9......
  • Fulton Ins. Co. v. White Motor Corp.
    • United States
    • Supreme Court of Oregon
    • February 2, 1972
    ...the obligation ought to be discharged by the latter. Restatement, Restitution § 76, 331 (1937); Nelson v. Sponberg, 51 Wash.2d 371, 318 P.2d 951, 954 (1957); Aetna Freight Lines, Inc. v. R. C. Tway Company, 352 S.W.2d 372, 373 (Ky.App.1961). The last requirement means that, although the cla......
  • Request a trial to view additional results
28 cases
  • Blockston v. United States, Civ. No. 13855.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • January 4, 1968
    ...The Toledo, 122 F.2d 255 (2 Cir., 1941), cert. den., 314 U.S. 689, 62 S.Ct. 302, 86 L.Ed. 551 (1941); Nelson v. Sponberg, 51 Wash.2d 371, 318 P.2d 951 (Sup.Ct.Wash., 13 On the other hand, Hydrotherm contends that the settlement was invalid because Judge Winter took no testimony on the issue......
  • Royal Caribbean Cruises Ltd. v. Swedish Health Services, 76275-3-1
    • United States
    • Court of Appeals of Washington
    • October 22, 2018
    ...in original. [15] Emphasis in original. [16] Emphasis in original. [17] For the first time on appeal. RCCL cites Nelson v. Sponberg, 51 Wn.2d 371, 374-75, 318 P.2d 951 (1957), to argue equitable indemnity does not require a legal duty. RCCL did not raise this argument below. See RAP 9.12 (o......
  • Royal Caribbean Cruises Ltd. v. Swedish Health Servs., Corp., No. 76275-3-I
    • United States
    • Court of Appeals of Washington
    • October 22, 2018
    ...Emphasis in original. 15. Emphasis in original. 16. Emphasis in original. 17. For the first time on appeal, RCCL cites Nelson v. Sponberg, 51 Wn.2d 371, 374-75, 318 P.2d 951 (1957), to argue equitable indemnity does not require a legal duty. RCCL did not raise this argument below. See RAP 9......
  • Fulton Ins. Co. v. White Motor Corp.
    • United States
    • Supreme Court of Oregon
    • February 2, 1972
    ...the obligation ought to be discharged by the latter. Restatement, Restitution § 76, 331 (1937); Nelson v. Sponberg, 51 Wash.2d 371, 318 P.2d 951, 954 (1957); Aetna Freight Lines, Inc. v. R. C. Tway Company, 352 S.W.2d 372, 373 (Ky.App.1961). The last requirement means that, although the cla......
  • Request a trial to view additional results

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