Western Clinic & Hosp. Ass'n v. Gabriel Const. Co., 23683.

• Decision Date: 15 June 1932
• Docket Number: 23683.
• Court: Washington Supreme Court
• Parties: WESTERN CLINIC & HOSPITAL ASS'N v. GABRIEL CONST. CO. et al.

12 P.2d 417

168 Wash. 411

WESTERN CLINIC & HOSPITAL ASS'N v. GABRIEL CONST. CO. et al.

No. 23683.

Supreme Court of Washington

June 15, 1932

Department 2.

Appeal from Superior Court, Pierce County; Ernest M. Card, Judge.

Action by the Western Clinic & Hospital Association against the Gabriel Construction Company and others. From a judgment dismissing the action, plaintiff appeals.

Affirmed.

H. P Jones and Ralph W. Thompson, both of Tacoma, for appellant.

John Lichty, of Portland, Or., for respondents.

HOLCOMB J.

Appellant sued to enforce a lien right, upon the 15 per cent. retention fund held by municipal corporations under the provisions of Rem. Comp. Stat. § 10320, against the contractor, the subcontractor, and the municipal corporation of Tacoma.

The Western Pipe & Steel Company was the principal contractor with Tacoma in the construction of what is known as the surge tanks and penstocks for Cushman power plant No. 2, which company sublet a part of the work to the Gabriel Construction Company. Appellant, in accordance with the provisions of Rem. Comp. Stat. §§ 7673 to 7796, inclusive, and amendments thereto, entered into a contract with the principal contractor to furnish the medical, surgical hospital care and treatment, ambulance service, first aid kits, and the like, necessary for the care and treatment of workmen upon the work and for other services provided by the medical aid law. It proceeded with the furnishing of the items required by those sections, and continued furnishing them until the time when Gabriel Construction Company defaulted the performance of its contract and Western Pipe &amp Steel Company assumed its performance.

The amount of the charges for these services and the value thereof were fixed by the medical aid law, supra, and by the contract.

The claim of appellant for the sum of $960.83, with interest and attorney's fees, is for supplies in the nature of first aid equipment placed on the job, the maintenance of a first aid station close to the job which was equipped with X-ray machines, medicines, physicians, nurses, supplies hospitalization, laboratory work, and with a physician and ambulance stationed on the works.

Upon default of the construction company in payment for these services, a notice of lien was filed as provided by section 10320, supra, whereupon the city withheld from payment to the contractor the sum of $2,119.56. Within the time provided by law thereafter appellant commenced this action, and the city, in accordance with the statute, certified the above sum to be on hand. The Western Pipe & Steel Company appeared in the action, admitted the filing of the claim and that the Gabriel Construction Company was a subcontractor under it on the work involved.

The matter being tried Before the court without a jury, at the conclusion thereof the court held that the claim of appellant was not of such a nature as to bring it within the scope of section 10320, supra, and dismissed the action.

The only issue necessary for us to determine, in this case of first impression, anywhere, so far as we can discover, is whether appellant comes within the class of persons enumerated in that section. The portion of that section relied upon by appellant reads: '* * * Said sum to be retained by the * * * city * * * as a trust fund for the protection and payment of any person or persons, mechanic, subcontractor or materialman who shall perform any labor upon such contract or the doing of said work, and all persons who shall supply such person or persons or subcontractors with provisions and supplies for the carrying on of such work.'

We have announced the principle that, although a mechanic's lien is said to be a favorite of the law, the statute cannot be so extended as to apply to cases which do not fall within its provisions; that a statute declaring that a mechanic's lien law should be liberally construed is applicable only to the provisions with respect to the remedies and pleadings, and not to the question whether a lien could attach at all; and that as to whether the lien can attach at all we must look to the statute creating such liens. Turner v. Furleigh, 124 Wash. 45, 213 P. 454.

The cases cited by appellant from this and other courts throw little light upon this question either by their reasoning or results. It is correct that we have held, as...