Bancroft v. Godwin , 41 Wash. 253 ( 1905 )

Boot, J.

Respondent commenced this action to recover damages against the appellants jointly, on account of an injury to a stock of goods, caused hy leakage of water upon the same wffiile contained in a building which she had leased for store purposes from appellant Godwin, and which building, at the time of the injury complained of, was being remodeled. Appellant Godwin interposed an answer denying all the material allegations of the complaint tending to charge him with liability. The appellants Ryan & Co. interposed an answer containing some denials, and setting forth an affirmative defense to the effect that the actual work of remodeling this building was being done by one McDonald, who was an independent subcontractor. Upon the trial the jury returned a verdict in favor of respondent, as against all the defendants, in the sum of $500. Motions for new trial were interposed by Godwin and by Ryan & Co., respectively, and each also moved for a judgment in his favor non obstante veredicto. All of these motions were denied, and judgment was entered in accordance with the verdict. "From this all of the defendants appealed.

Numerous errors are assigned upon rulings of the court touching the introduction of testimony; but an examination of these rulings convinces us that no substantial or reversible error was committed. Among other instructions the court gave the jury the following:

“In this connection I charge you that T. Ryan & Co. were not the servants and employees of said Godwin,”

and further:

“If you find that the damage was not done by any of God-win’s negligence, or the servants of Godwin, but was done by T. Ryan & Co., his agents or servants, or by any other subcontractor, then you must find in favor of Godwin, as I have instructed.”

It is contended by appellant Godwin that, under this instruction, no verdict should have been rendered as against him, and that said instruction was binding and conclusive, even though it should be deemed incorrect as a proposition of law. As a matter of law, in the light of the facts in this case, this instruction was erroneous. The proposition therein contained would be sound if Godwin’s liability depended merely upon the question of negligence, and was purely a matter of tort. It is alleged in the complaint, and shown by the evidence, that the remodeling of this building was done in such a careless and unskillful manner that, during a rain storm, the water found its way through the roof and ceiling, and caused the plastering to be moistened and to fall upon respondent’s goods, to their serious damage-. Godwin had entered into a contract with Ryan & Co. to do the work of remodeling this building. Ryan & Co. had sublet or transferred the contract to McDonald, who had sole charge of the manner in which the work was done, neither Godwin nor Ryan & Co. participating therein. Hence^ no tort on the part of Godwin occasioned the injury complained of.

But it must be remembered that the relation of landlord and tenant existed between Godwin and respondent. The former had leased these premises to the latter as a store building, and by virtue of said lease^ actually, or by implication, guaranteed that he would neither do, nor permit to be done, anything which would render said premises unfitted for such purpose-, or disturb the substantial enjoyment by his tenant thereof, as contemplated by said -lease-. When he undertook to remodel said building, it was incumbent upon him to see that said modification was accomplished in such a manner as not to damage the goods of his tenant, or in any way seriously interfere with the beneficial enjoyment of the tenancy created by said lease. Having, however, caused this remodeling to be undertaken, and not having supervised it so as to avoid impairing his tenant’s property and substantial rights, he became liable in damages for the injury thereby wrought. Wusthoff v. Schwartz, 32 Wash. 337, 73 Pac. 407.

The rule contended for by appellant Godwin, that the verdict of a jury which is contrary to an erroneous instruction of the court should be set aside, we cannot apply in this case. There are doubtless some cases where this is a proper and salutary rule. But we do not deem it such where the facts are as this record reveals. We do not think the former decisions of this court are such as to establish this as a rule applicable in all cases of erroneous instructions followed by verdicts inconsistent therewith. The verdict of the jury, so far as it affects Godwin, will not be disturbed. Por the reasons already suggested, the motion of defendant Godwin, for a judgment notwithstanding the verdict was properly denied.

The motion for judgment in favor of Ryan & Co. non obstmterveredicto should have been granted. IsTo relationship of landlord and tenant existed between respondent and Ryan & Co. There were no contractual relations whatever between them. If respondent had any cause of action against Ryan & Co., it was in tort arising by reason of the careless and negligent manner in which the work was being done. But it was alleged and established by the proof that Ryan & Co. neither did this work nor had any supervision, control, or managefment thereof. Any negligence or carelessness was not theirs, but entirely that of their subcontractor, McDonald. As the latter did the work in his own manner and without the direction, control, or supervision of the original contractor, he became and was an independent contractor, and was directly responsible for his acts and omissions, and incapable of charging the original contractor with any negligence committed in the carrying out of the contract. Larson v. American Bridge Co., 40 Wash. 224, 82 Pac. 294.

The judgment of the honorable superior court, in so far as it affects the appellant Godwin, is affirmed. In so far as it affects the defendants Ryan & Co., it is reversed and remanded with instructions to dismiss the action as to said appellants.

Mount, C. J.,Cbow, Hadley, and Rudkin, JJ., concur.