Donald G. Abel

The case Deruwe v. Morrison involved a dispute between adjoining landowners over whether water flowing from southern creeks into a lake bed and then through a main ditch on the respondents' property constituted a natural watercourse, and whether a dam built to block that flow could lawfully interfere with it. The majority held that the water flow did not qualify as a watercourse, permitting the dam to stand. Its reasoning relied on the Restatement of Torts definition requiring a stream of natural origin in a reasonably definite channel with constant or recurrent flow, along with Washington precedents distinguishing surface water from protected watercourses, and found that the intermittent flow and ditch conditions failed to meet those criteria. The dissent argued the opposite, citing historical affidavits, prior cases such as Rigney v. Tacoma Light & Water Co. and Hastie v. Jenkins, and the Restatement's treatment of marshes and lakes as parts of watercourses.

propertyenvironmenttorts & liability

This case involved a divorced man's attempt to modify the alimony provisions of a 1935 divorce decree. After his first petition for modification was denied following a hearing with evidence, he filed a second similar petition, which the trial court granted. The Washington Supreme Court reversed, holding that the issues in the second petition were the same as those in the first, and that alimony modifications cannot be based on facts existing at the time of the original decree or allow relitigation of previously decided matters without new circumstances.

family lawprocedure

The case involved a dispute over a 1939 installment contract for the sale of timber lands, under which Cascade Timber Co. paid the full $210,000 purchase price and then sued Northern Pacific Railway Co. for specific performance to obtain a deed free of restrictions beyond mineral reservations. The contract contained paragraph 10, requiring Cascade to ship its timber products via Northern Pacific's lines when rates were equal and to offer suitable logs to Northwest Door Company at market price. The trial court denied the request for specific performance, and the Washington Supreme Court affirmed, reasoning that specific performance is an equitable remedy available only to plaintiffs who come with clean hands and do equity, and Cascade had willfully failed to perform material covenants that were a key inducement for the sale.

business & regulatorypropertyprocedure

The case involved a dispute between Jack Hynes and Frances Hynes (later Carlson) over real property and a tavern business they acquired and operated while living together in Washington after meeting in 1937. Hynes sued claiming interests in the property and assets based on their relationship and joint efforts, but the trial court found they had fully settled all financial differences. The court affirmed the judgment for the defendant, holding that the parties reached an accord and satisfaction when Hynes accepted and cashed a check for $380.31 that she tendered in full settlement of his claimed share of the funds and property. The reasoning relied on the plaintiff's own testimony admitting the settlement agreement, along with precedents establishing that acceptance of a check offered in full payment of a disputed claim bars further recovery.

family lawproperty

This case involved a life insurance beneficiary suing the insurer after it denied a claim on a policy issued without a medical exam, based on the insured's application answers about his health history. The insured, a healthy farm laborer, had briefly consulted a doctor months earlier for a cold and chest pain, where high blood pressure was noted but not fully diagnosed or treated, and he did not disclose it. The trial court submitted the issues of misrepresentation and intent to deceive to the jury, which found for the beneficiary, and the Washington Supreme Court affirmed, holding that under state law materiality and intent were factual questions for the jury rather than matters of law, given the insured's otherwise robust health, limited medical contact, and the circumstances of the application process.

business & regulatory

The case involved a resident taxpayer's petition to compel the mayor and commissioners of Vancouver, Washington, to enact an ordinance or submit to a public vote a measure initiating the process for the city to adopt a home-rule charter and qualify as a first-class city under state law. The city had adopted the commission form of government in 1942, and a statute required six years of operation before abandoning that form, but the petition was filed in 1946 before that period expired. The superior court issued a writ of mandamus ordering action on the petition, and the Washington Supreme Court affirmed, ruling that Article XI, section 10 of the state constitution directly grants cities with 20,000 or more inhabitants the right to frame a charter, which cannot be restricted by the statutory waiting period since the statute provides only one non-exclusive method of changing government form.

electionsprocedure

The case involved a lawsuit by plaintiff Langer against defendant Auto Interurban Co. for personal injuries and property damage from a car-bus collision at an intersection in Spokane. After a jury trial awarded damages to the plaintiff, the defendant appealed. The court reversed the judgment and ordered dismissal, holding that the plaintiff was contributorily negligent as a matter of law because he stopped at a position where he could not adequately see oncoming traffic on the arterial and never saw the bus approaching. The court rejected arguments based on the bus's excessive speed and the plaintiff's memory loss, finding that the disfavored driver had a duty to yield and observe properly, without extending prior precedents.

torts & liabilityprocedure

The case involved a shipment of apricots purchased f.o.b. Yakima for delivery to Springfield, Illinois, that arrived spoiled due to excessive heat in the rail car. Plaintiff sued both the seller (Roche) and the Northern Pacific Railway Company, alleging negligence by the railroad in icing and refrigeration or by Roche in loading and packing the car. The trial court found that Roche was negligent because heavy paper used in loading had covered the lower ice bunker vents, blocking air circulation, and entered judgment against him; the railroad was exonerated based on icing records and post-unloading inspections. On appeal, the court affirmed, holding that the trial court's findings were supported by the weight of the evidence, including testimony from carrier inspectors confirming the blocked vents and records showing adequate icing by the railroad.

torts & liabilitybusiness & regulatoryprocedure

This case involved a lawsuit for damages to the plaintiff's automobile from a collision at a non-arterial intersection in Tacoma, where the plaintiff was traveling east on North Eighth Street and the defendant was traveling south on Trafton Street. The plaintiff claimed the right of way as the favored driver, while the defendant asserted he looked but did not see the plaintiff's vehicle due to obstructions and that the plaintiff may have been driving on the wrong side of the street. The trial court found the defendant negligent under the statute requiring disfavored drivers to yield to vehicles on their right, that this negligence proximately caused the accident, and that the plaintiff was not contributorily negligent, entering judgment for the plaintiff. On appeal, the court affirmed, holding that the evidence supported the findings that the defendant's car struck the plaintiff's and that the plaintiff had exercised due care by observing the defendant's vehicle approaching from a sufficient distance. The court rejected arguments that personal observations by the trial judge or the plaintiff's position on the road affected the outcome, emphasizing the statutory duty of the disfavored driver.

torts & liability

In Rushlight v. MacLain, the plaintiff sued the defendant on three promissory notes executed in Washington in 1937 and 1938 arising from their prior business dealings and employment relationship. The defendant raised defenses including that the notes had been paid via a stock transfer, that they were barred by the statute of limitations, and that an Oregon wage suit involving the same notes affected ownership or created an estoppel. The trial court ruled that the first note was time-barred but the second and third were enforceable and unpaid, entering judgment for the plaintiff. On appeal, the court affirmed, holding that the evidence did not preponderate against the trial court's findings on nonpayment, that the defendant's two-year absence from Washington tolled the limitations period under state law, and that the borrowing statute did not apply because the cause of action arose in Washington.

business & regulatoryprocedure

The case concerned the 1944 probate of Harry F. Baker's estate in Pierce County, Washington, consisting solely of a one-half interest in real property; his sister Sarah L. Field obtained appointment of an administrator, successfully moved for reappraisal on the basis of her claimed life estate (reducing the value from $1,250 to $100), purchased the estate's interest for $208.35, and obtained orders confirming the sale, approving the final account, and closing the estate. In 1946 the decedent's widow and son petitioned to vacate those orders, alleging that the reappraisal was procured by false evidence, that the court lacked jurisdiction to reappraise, and that the proceedings involved fraud and concealment. The trial court granted the defendants' motion to quash and dismissed the petition. The Supreme Court affirmed, holding that the probate court possessed statutory authority under Rem. Rev. Stat. §§ 1465 and 1500 to order reappraisal on the basis of the court records and files regardless of the sister's affidavit, that the alleged fraud was intrinsic rather than extrinsic to the proceedings, and that the orders, entered after statutory notice, were therefore res judicata.

propertyprocedure

The case involved a contract dispute in which All-Rite Contracting Co. filed an application in superior court to compel Horace J. Omey and Marjorie E. Omey to proceed with arbitration under their agreement, also seeking a money judgment and lien; the trial court granted the order to arbitrate and retained jurisdiction for further relief. The defendants appealed the order, but the Washington Supreme Court dismissed the appeal as premature. The court held that under the 1943 arbitration statute (Rem. Supp. 1943 §430-22), appeals are permitted only from final orders or judgments entered on awards, treated the same as in ordinary civil actions under Rem. Rev. Stat. §1716, and an interlocutory order directing arbitration does not qualify as final.

procedure

This case concerned whether Pacific Telephone & Telegraph Co. must reimburse the Department of Public Service for attorneys' fees and other expenses incurred during superior court and appellate proceedings reviewing the department's orders on rate tariffs and investigations. The department had ordered the utility to pay these court-related costs under a 1939 statute allowing recovery of investigation expenses exceeding ordinary regulatory fees. The superior court ruled for the company, and the Washington Supreme Court affirmed, holding that the statute applies only to the department's own investigations, valuations, or services and does not extend to separate judicial proceedings, which are governed by a different statute providing only for transcript costs. Because the 1939 law is a taxing statute, any ambiguity must be resolved against the state, and the legislature's failure to include court expenses means they cannot be recovered from the utility.

business & regulatoryproceduretaxes

This case involved a dispute over a 1929 deed to Seattle property that plaintiff Kausky transferred to defendant Kosten without consideration. Plaintiff sought to cancel the deed, regain possession, and recover the property's rental value, asserting it was given as part of his efforts to persuade her to marry him; defendant claimed it was an outright gift. The trial court dismissed the action after finding the transfer voluntary. On appeal, the court reversed, determining that a confidential or fiduciary relationship existed in which defendant exerted dominating influence over plaintiff, rendering the deed invalid under equitable principles against abuse of confidence. The court directed that title be quieted in plaintiff, with adjustments requiring defendant to pay rental value offset by her payments for taxes, assessments, and mortgage.

propertyfamily law

The case involved a contractor who sued a month-to-month tenant doctor for the unpaid balance on office renovation work in a building after the building manager refused to pay more than an initial $500 estimate. The trial court ruled for the contractor on an implied contract theory, but the appellate court reversed and ordered dismissal. The court held that no implied contract existed because there was no evidence of mutual intent for the tenant to pay for the work, the contractor had looked to the building owners for payment, and the circumstances did not support an expectation that the tenant would cover costs exceeding the agreed amount. The decision emphasized that an implied contract requires conduct indicating the recipient expected to pay and the provider expected compensation from that party.

propertybusiness & regulatory

This case involved a boundary dispute between adjacent lots in Seattle originally owned by a common grantor, who constructed houses, a basement entrance, porch, and fence on one lot extending slightly onto the other lot's recorded plat line. Plaintiffs, who purchased their lot knowing of the fence and even rebuilt part of it after questioning the line, sued to establish the plat boundary, which would have encroached on defendants' entranceway; defendants cross-claimed to quiet title to the disputed strip. The trial court dismissed the complaint and set the fence as the boundary, and the Washington Supreme Court affirmed. The court reasoned that a boundary line established by a common grantor is binding on subsequent grantees who purchase with reference to it, as the parties here did, without needing to rely on acquiescence or estoppel alone.

property

This case involves a dispute between greenhouse owners and the operator of an adjacent feed mill over dust emissions from the mill that accumulated on the greenhouses, causing damage including mold and dirt. The trial court found the mill's dust was a partial cause of the condition, awarded the plaintiffs $4,500 in damages (60% of cleaning costs), and granted an injunction requiring the defendant to modify operations so that dust would not settle on the plaintiffs' property. On appeal, after an earlier ruling struck the statement of facts for untimely filing, the only issue was whether the trial court's findings supported the judgment and decree. The Supreme Court affirmed, holding that the findings sustained both the damages award and the injunctive relief, with all inferences taken in favor of the findings in the absence of the evidence.

propertytorts & liability

Cotten v. Wilson involved a personal injury suit by a defense plant employee who was a passenger in a 'victory motor vehicle' (a large bus licensed under a 1943 Washington wartime statute to transport defense workers) when it left the road after a tire blowout, allegedly due to inadequate brakes. The trial court dismissed the case at the close of the plaintiff's evidence, ruling that the victory motor vehicle act required proof of gross negligence and that no prima facie case had been made. The Washington Supreme Court reversed, holding that evidence of the vehicle's known defective braking system raised a factual question for the jury on whether the owner failed to exercise slight care, consistent with the statutory standard and precedents treating operation of vehicles with known defects as gross negligence. The court remanded for further proceedings under the act's liability provisions applicable only to such regulated defense-worker transport.

torts & liabilitybusiness & regulatorylabor & employment

The case involved a worker's compensation claim filed after a workplace accident in which a wire injured the plaintiff's left eye, causing total loss of vision in that eye. The Department of Labor and Industries awarded compensation for the specific loss of vision but denied additional compensation for unspecified permanent partial disability. After the joint board upheld the denial and the superior court dismissed the action for insufficient evidence, the plaintiff appealed. The court reversed the dismissal and ordered a new trial, holding that the plaintiff's testimony and objective medical evidence established a genuine issue of fact regarding additional permanent disability to the right eye and related symptoms caused by the injury.

labor & employmentprocedure

This case involved an employer's attempt to enjoin peaceful picketing by craft unions amid a dispute over union organizing and recognition after the employer signed a cross-check agreement with a rival union. The dissenting opinion found that a bona fide labor dispute existed between the employer and the picketing unions because the employer had actively participated rather than remaining neutral, the National Labor Relations Board had taken no action to certify a representative or resolve the issues, and the statutory definition of a labor dispute was satisfied. The dissent concluded that the trial court's findings supported the lawfulness of the picketing and that its judgment should be affirmed.

labor & employment