52 Wash. 262 | Wash. | 1909
Lead Opinion
In July, 1903, John C. Regan & Company entered into a contract with the city of Seattle by the terms of which they agreed, for a stated consideration, to construct concrete sidewalks between certain designated points. The contract was in writing and contained, among others, a condition to the effect that the contractors would erect and maintain good and sufficient guards, barricades and signals at all unsafe places at or near where the work contemplated in the contract was to be done, and would indemnify and save harmless the city of Seattle from all suits and actions of every name and description brought against the city for or on account of any injuries or damages received or sustained by any person by reason of the failure of the contractors to erect and maintain such guards, barricades or signals, or by or in consequence of any negligence on the part of the contractors, their agents or employees, while carrying on the work. The contractors, also, at the time of entering
The accident to Mrs. Brennan occurred August 20, 1903, and on September 14 thereafter she duly filed with the city clerk of the city of Seattle a claim for damages, as prescribed in the city charter. This claim was rejected by the city, and on October 3, 1903, she brought an action in the superior court of King county against the city to recover for her injuries. The city, conceiving that the obstruction causing the injury was one for which the contractors were liable, served a written notice upon them and their surety notifying them of the pendency of the action, and tendering them its defense. Neither the contractors nor the surety appeared, and the city itself defended. The case was twice tried to a jury. The first trial resulted in a verdict for the city. This verdict was set aside by the trial court, and on appeal its order to that effect was affirmed by this court. Brennan v. Seattle, 39 Wash. 640, 81 Pac. 1092. On the second trial a verdict was returned against the city for $999, and a judgment entered against it for that sum, with costs. This judgment was likewise affirmed by this court on the appeal of the city. Brennan v. Seattle, 46 Wash. 427, 90 Pac. 434. The city thereupon paid the judgment and brought the present action against the contractors and their surety on the bond to recover the amount so paid. The case was tried before the court sitting without a jury, and resulted in a judgment in favor of the city for the amount paid in satisfaction of the judgment Mrs.
The principal assignments of error question the sufficiency of the evidence to sustain the judgment. It is contended that the court gave too great an effect to the judgment obtained by Mrs. Brennan against the city; that it held that the negligence of John C. Began & Company was conclusively established by that judgment; that it denied the appellants the right to dispute liability for the defect which it is alleged caused the injury to Mrs. Brennan; and that, at the final argument and hearing, it excluded all evidence of the appellants on the question of guards and barricades and all evidence on the question whether the injury occurred upon the work of the contractors. Our examination of the record, however, convinces us that the court’s ruling was not so broad as these objections would indicate.
The judgment offered in evidence, since the appellants were notified of the pendency of action in which it was obtained and were given an opportunity to defend that action, was conclusive of every fact necessary to be proven in order to entitle the plaintiff therein to recover; that is to say, it was conclusive evidence of the existence of the defect in the street, of the primary liability of the city for existence of such defect, of the fact that the plaintiff in that action was injured without fault on her part, and of the amount awarded, her in the judgment. It was not, of course, conclusive of the fact that the contractors were the cause of the defect on which the plaintiff was injured. But when the city proved the contract and bond, by which it appeared that the appellants had undertaken to save the city harmless from an action for damages brought against it by negligence on the part of the contracting appellant, and proved the judgment obtained against it by Mrs. Brennan, and so much of the judgment roll therein as showed the nature of the defect on which the recovery was had, and the fact that the appel
The next objection raises the question of the sufficiency of the evidence to justify the finding of the court to the effect that the contractors were responsible for the defect which caused the injury recovered for in the action of Brennan v. Seattle, supra; but without entering upon a review of the evidence at length, we think it decidedly preponderates.
The city charter of the city of Seattle provides that no action shall be'begun against the city on a claim for personal injuries until sixty days have elapsed from the time the claim for such damages is filed with the city. This action, as will be observed from the dates above given, was begun within less than sixty days after the filing of the claim with the city, although not until after it had been rejected by the city council and notice thereof given the claimant. After the action had been begun this objection was waived by the city’s counsel, and this waiver is thought to relieve the appellants from liability, since, as they contend, the objection if raised would have been fatal to the maintenance of the action. But we think this objection not tenable. It may be that had the objection been insisted upon, this particular action could not have been maintained. But the dismissal of this action for that reason would not have been a bar to the prosecution of another action for the same cause, and only a few days delay could have been gained at most by an insistence upon the objection. As a defense, therefore, it was no more potent than any other dilatory motion counsel might have filed and insisted upon. But it is not the rule that a defendant must, in this kind of a case, insist on every objection that sug
We have not overlooked the case of Seattle v. Northern Pac. R. Co., 47 Wash. 552, 92 Pac. 411. While a majority of the court think a correct result was arrived at in that case, we think the language used in some instances was unwarranted and contrary to what had been previously decided by üs. To the extent that it is thus conflicting we do not feel constrained to follow it.
The judgment appealed from is affirmed.
Budkin, C. J., Cnow, Dunbar,, Chadwick, and Gose, JJ., concur.
Concurrence Opinion
I concur in the result in this case, but not in the criticism of Seattle v. Northern Pac. R. Co.