White Pass Co. v. St. John

• Decision Date: 04 May 1967
• Docket Number: No. 38194,38194
• Citation: 427 P.2d 398,71 Wn.2d 156
• Court: Washington Supreme Court
• Parties: The WHITE PASS CO., a corporation, Appellant, v. W. Scott ST. JOHN, doing business as St. John's Floor Covering Specialists, Defendant, Jake Leingang, doing business as Leingang Construction Co., Respondent.

Page 156

71 Wn.2d 156

427 P.2d 398

The WHITE PASS CO., a corporation, Appellant, v. W. Scott ST. JOHN, doing business as St. John's Floor

Covering Specialists, Defendant,

Jake Leingang, doing business as Leingang Construction Co.,

Respondent.

No. 38194.

Supreme Court of Washington, Department 1.

May 4, 1967.

As Modified on Denial of Rehearing May 22, 1967.

Gavin, Robinson, Kendrick, Redman & Mays, John Gavin, Kenneth C. Hawkins, Yakima, for appellant.

Tonkoff, Holst & Hanson, Bruce P. Hanson, Yakima, for respondent.

ROSELLINI, Judge.

This is an action for the recovery of damages for the destruction of appellant's ski lodge and equipment. The appellant had contracted with the respondent to enlarge the ski lodge. The subcontractor engaged by the respondent was negligent in applying a volatile floor material, and it was this negligence which caused the fire. The appellant recovered judgment against the subcontractor in the amount of $139,431.20.

The appellant obtained satisfaction of the judgment to the extent of $81,843, which was its proportionate share of the insurance carried by the subcontractor. In order to obtain this payment from the insurer, the appellant signed an agreement not to levy on the property of the subcontractor for the balance of the judgment.

In addition to finding the subcontractor liable for its negligence in applying the flooring material, the trial court found that the material was not inherently dangerous, but dangerous only if it was used with lack of care. It further found that the appellant owner was not guilty of contributory negligence. The trial court dismissed the appellant's action against the respondent, the general contractor, on findings (1) that the subcontractor was an independent contractor, (2) that the appellant knew that the subcontractor was performing the work and made no objection, and (3) that the appellant had not sought to hold the respondent liable until two years after it had sued the subcontractor.

At the outset, respondent moves to dismiss the appeal on the grounds that appellant has released a joint tort-feasor and has thus released the respondent.

The respondent cites J. E. Pinkham Lumber Co. v. Woodland State Bank, 156 Wash. 117, 286 P. 95 (1930), wherein this court said that it was committed to the rule that the release of one joint tort-feasor is a release of all, regardless of whether the release be partial or in full, whether the amount of the recovery be unliquidated or measured, and whether the release of the one be with the express reservation that it shall not apply to the other.

The rule of that case has been limited to situations in which the defendant is in fact a joint tort-feasor with a party who has been released. DeNike v. Mowery, 69 Wash.Dec.2d 361, 418 P.2d 1010 (1966). To be a joint tort-feasor, the respondent must have acted in concert with its subcontractor in producing the damage. It is not suggested that the respondent was an active participant in the tort. His liability, if any, must flow from his contract relations with appellant not from active negligence. Consequently, the rule of J. E. Pinkham Lumber Co. v. Woodland State Bank, supra, is not applicable here.

In Johnson v. Stewart, 1 Wash.2d 439, 96 P.2d 473 (1939), also cited by the respondent, it was held that where an action is based on contract, the rule regarding the release of one joint tort-feasor does not apply. That case was concerned with the question whether the release of one joint judgment debtor releases another automatically. This court said, at p. 445, 96 P.2d at p. 476:

In considering such questions as that here presented, the strong trend of modern authority is to carry out the intention of the parties, if such intent can be determined from their acts, agreements, or documents signed, and to follow the rule that where it clearly appears that the releasor intended to release a particular joint obligor only and to retain his rights against others, that intent will be given effect.

The release involved in this action or 'covenant not to levy execution' as the appellant prefers to describe it, expressly reserves the appellant's right to appeal the adverse decision on his suit against the respondent. This court, in Johnson v. Stewart, supra, also recognizes the rules found in 2 Freeman, Judgments § 2377 (5th ed. 1925), that

'Judgments do not differ materially from other joint obligations so far as concerns the effect of a release of one joint debtor on the right to pursue the others. The fact that an obligation has been reduced to judgment does not change its character and incidents in this respect;'

However, we said, 'a judgment adjudicating contract rights is a more definite obligation than the contract itself, the rights of the parties having crystallized, through judicial proceedings, into a fixed and final form.' The same may be said of a judgment for a tort.

This court, in a later case, Arndt v. Manville, 53 Wash.2d 305, 333 P.2d 667 (1958), also recognized that the court will give effect to an express reservation of the right against a co-obligor.

The amount of appellant's loss in this case has become liquidated as a result of the judgment against the subcontractor in an action in which the respondent was a defendant. If the judgment had been given against the respondent, it would necessarily have been in the same amount. Consequently, there is no uncertainty as to the amount of damage for which the appellant has not been compensated. It is the difference between $81,843 and the amount of the judgment. The respondent does not suggest that he has lost his right of contribution as against the subcontractor by reason of the release, and consequently, there appears to be no just reason why it should be held that the partial release of the subcontractor operated as anything other than a release pro tanto of the respondent.

We hold that the release of the subcontractor with the reservation of rights against the contractor operated to release the respondent pro tanto but did not preclude the appellant from pursuing this appeal, and if successful, in recovering the remainder of the amount of the judgment from the respondent.

Turning to the merits of the appeal, we find error assigned to the trial court's conclusion that because the subcontractor who laid the flooring was an independent contractor over whom the respondent exercised no supervision and control, the respondent was not responsible for the negligent act of the employees of the subcontractor.

As appellant contends, the duty to lay the flooring in a careful and prudent manner so as not to damage the property of the owner was a nondelegable duty of the general contractor. The fact that the respondent, by virtue of its contract with the subcontractor, exercised no supervision and control over the manner in which the work was performed, could not absolve it from its responsibility under its contract with appellant.

In the case of Van Slyke Warehouse Co. v. Vilter Mfg. Co., 158 Wash. 659, 291 P. 1103 (1930), cited by the appellant, we held that a contractor could not avoid liability to an owner by engaging a subcontractor to do work which was intrinsically dangerous and liable to result in injuries to others. It is true that in that case some point was made of the fact that there was inherent danger in the work being done, and that the trial court in this case refused to find that the application of the volatile flooring material was an inherently dangerous operation.

We do not think, however, that this fact should be controlling. The theory of liability is that the contractor has agreed to perform the work specified in the contract. In the absence of a provision that he may subcontract the work and that the owner will look only to the subcontractor for compensation for damage if the work is not properly done, there is an implied undertaking...