
    [No. 6362.
    Decided December 18, 1906.]
    N. G. Wheeler et al., Respondents, v. The City of Aberdeen et al., Appellants.
      
    
    Municipal Corporations — Torts—Destruction of Property. In an action for damages for the destruction of a building and damage to goods for noneompliance with an ordinance establishing fire limits, a nonsuit is properly denied where there was evidence that the city unnecessarily destroyed the material of which the building was constructed and damaged its contents.
    Pleadings- — Issues, Proof and Variance. In an action for damages for destroying a frame building in the fire limits, it is error to admit evidence of fraud and duress in signing a release of damages, where an affirmative answer alleged the signing of such agreement by the plaintiffs, and the reply failed to deny such allegation.
    Municipal Corporations — Torts — Eire Limits — Removal of Building — Damages—Loss of Profits. In an action for damages for the destruction of a frame building in the fire limits, damages for loss of profits from, being compelled to move are not recoverable, where it had been determined in a prior action that the building existed in violation of law and that the city could not he enjoined from removing it.
    Same — Judgment—Bar—-Res Judicata. An adjudication in a suit against a city, its mayor, and marshal, sustaining their right to remove a building from the fire limits, is res judicata in a subsequent action against the city and its then officers for damages for removing the building.
    Same — -Adjudication as Partial Defense. A defense of res judicata pleaded as a complete defense, should not be struck out or ignored because it is only a partial defense.
    Municipal Corporations — Torts — Eire Limits — Removal of Building — Damages—Evidence. In an action to recover damages for the destruction of a building unlawfully maintained in the fire limits, evidence of the cost of removing plaintiffs’ goods therefrom is inadmissible.
    Same — Evidence of Other Violations. In an action to recover damages for the destruction of a building unlawfully maintained in the fire limits, it is error to admit evidence of other violations of the ordinance hy the maintenance of other like buildings within the limits.
    
      Same — Damages. In an action for the destruction of a frame building unlawfully maintained in the fire limits, damages are not recoverable for injury to the leasehold, or for mental distress, shame, or humiliation.
    Appeal from a judgment of the superior court for Chehalis county, Chapman, J., entered April 6, 1906, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for damages for the destruction of a building and injury to the contents.
    Reversed.
    
      John C. Hogan and R. E. Taggart, for appellants.
    A city may summarily tear down a wooden building erected within the fire limits. Olympia v. Mann, 1 Wash. 389, 25 Pac. 337, 12 L. R. A. 150; Baxter v. Seattle, 3 Wash. 352, 28 Pac. 537; Baumgartner v. Hasty, 100 Ind. 575, 50 Am. Rep. 830; Eischenlaub v. St. Joseph, 113 Mo. 395, 21 S. W. 8, 18 L. R. A. 590; Theilan v. Porter, 14 Lea. (Tenn.) 622, 52 Am. Rep. 173; First Nat. Bank v. Sarlls, 129 Ind. 201, 28 N. E. 434, 28 Am. St. 185, 13 L. R. A. 481; Lemmon v. Guthrie, 113 Iowa 36, 84 N. W. 986, 86 Am. St. 361; 2 Smith, Mun. Corp. §§ 1103, 1115; 1 Dillon, Mun. Corp. (3d ed.), § 141; Mayor v. Hoffman, 29 La. Ann. 651, 29 Am. Rep. 345; Seattle v. Hinckley, 40 Wash. 468, 82 Pac. 747. The city is not liable in any event for the acts of its officers engaged in the exercise of governmental functions. Cunningham v. Seattle, 40 Wash. 59, 82 Pac. 143; Cunningham v. Seattle, 42 Wash. 134, 84 Pac. 641; Lawson v. Seattle, 6 Wash. 184, 33 Pac. 347; Russell v. Tacoma, 8 Wash. 156, 35 Pac. 605, 40 Am. St. 895; Simpson v. Whatcom, 33 Wash. 392, 74 Pac. 577, 99 Am. St. 951; Lynch v. Yakima, 37 Wash. 657, 80 Pac. 79; Sutton v. Snohomish, 11 Wash. 24, 39 Pac. 273, 48 Am. St. 847. The former judgment was res adjudicata. Sayward v. Thayer, 9 Wash. 22, 36 Pac. 966, 38 Pac. 137; Bruce v. Foley, 18 Wash. 96, 50 Pac. 935; Paddock v. Somes, 102 Mo. 226, 14 S. W. 746, 10 L. R. A. 254; Stewart v. Ashtabula, 98 Fed. 516; Id., 107 Fed. 857.
    
      J. C. Cross and J. W. Robinson, for respondents.
    The judgment in the injunction case was not res adjudicata, when the plea was made, because it had been appealed from. Knowles v. Inches, 12 Cal. 213; Woodbury v. Bowman, 13 Cal. 634; Thornton v. Mahoney, 24 Cal. 569; McGarrahan v. Maxwell, 28 Cal. 75; Murray v. Green, 61 Cal. 363, 28 Pac. 118; Harris v. Barnhart, 97 Cal. 546, 32 Pac. 589; Naftzger v. Gregg, 99 Cal. 83, 33 Pac. 757, 37 Am. St. 23; Souter v. Baymore, 7 Pa. St. 415, 47 Am. Dec. 518; State v. McIntire, 1 Jones L. (N. C.) 1, 59 Am. Dec. 566; Helm v. Boone, 6 J. J. Marsh (Ky.), 351, 22 Am. Dec. 76; Freeman, Judgments, § 328; Day v. De Jonge, 66 Mich. 550, 33 N. W. 527; Hennessy v. Tacoma Smelting etc. Co., 33 Wash. 423, 74 Pac. 584; Hills v. Sherwood, 33 Cal. 474; United States v. The Peggy, 1 Cranch 103, 2 L. Ed. 358. A judgment is not res adjudicata where the causes of action are different, unless the identical question was actually litigated. Cromwell v. County of Sac, 71 U. S. 352, 19 L. Ed. 65; Nesbit v. Riverside Independent District, 144 U. S. 610, 12 Sup. Ct. 746, 36 L. Ed. 562; Wilmington etc. R. Co. v. Alsbrook, 146 U. S. 279, 13 Sup. Ct. 72, 36 L. Ed. 972; Johnson Steel Street Rail Co. v. Wharton & Co., 152 U. S. 252, 14 Sup. Ct. 608, 38 L. Ed. 429; Last Chance Min. Co. v. Tyler Min. Co., 157 U. S. 683, 15 Sup. Ct. 733, 39 L. Ed. 859; Roberts v. Northern Pac. R. Co., 158 U. S. 1, 15 Sup. Ct. 756, 39 L. Ed. 873; New Orleans v. Citizens’ Bank, 167 U. S. 371, 17 Sup. Ct. 905, 42 L. Ed. 202; Southern Pac. R. Co. v. United States, 168 U. S. 1, 18 Sup. Ct. 18, 42 L. Ed. 355. This doctrine has been affirmed by this court in Marble Savings Bank v. Williams, 23 Wash. 766, 63 Pac. 511; Hewitt v. Root, 31 Wash. 312, 71 Pac. 1021; Budlong v. Budlong, 32 Wash. 672, 73 Pac. 783. A city cannot summarily destroy a wooden building in the fire limits unless it is a nuisance per se. Yates v. Milwaukee, 10 Wall. 497, 19 L. Ed. 984; Matter of Jacobs, 98 N. Y. 98, 50 Am. Rep. 636; Wood, Nuisances, § 823; First Nat. Bank v. Sarlls, supra. A municipality, as an individual, is liable for its torts of an intentional character. Potter v. New Whatcom, 20 Wash. 589; 56 Pac. 394, 72 Am. St. 135; Salt Lake City v. Hollister, 118 U. S. 256, 6 Sup. Ct. 1055; Speir w. Brooklyn, 139 N. Y. 6, 34 N. E. 727, 36 Am. St. 667, 21 L. R. A. 641; Anthony v. Inhabitants of Adams, 1 Met. (Mass.) 284; Sewall v. St. Paul, 20 Minn. 511; Allen v. Decatur, 23 Ill. 332, 76 Am. Dec. 692; Wilde v. New Orleans, 12 La. Ann. 15; Hunt v. Boonville, 65 Mo. 620, 27 Am. Rep. 299; Sheldon v. Kalamazoo, 24 Mich. 383; Thayer v. Boston, 19 Pick. 511, 31 Am. Dec. 157; Ashley v. Port Huron, 35 Mich. 296, 24 Am. Rep. 552. Municipal immunity does not reach beyond governmental duty. Judd v. Hartford, 72 Conn. 350, 44 Atl. 510, 77 Am. St. 312; District of Columbia v. Woodbury, 136 U. S. 450, 10 Sup. Ct. 990, 34 L. Ed. 472; 2 Dillon, Municipal Corporations (4th ed.), § 969. It is not the function of the city to enforce the terms of an agreement by forcible measures without process of law. Northern Pac. R. Co. v. Spokane, 52 Fed. 428; Chapman v. City Council of Charleston, 28 S. C. 373, 6 S. E. 158, 13 Am. St. 681; McClellan v. Gaston, 18 Wash. 472, 51 Pac. 1062.
    
      
      Reported in 87 Pac. 1061.
    
   Crow, J.

The plaintiffs, N. G. Wheeler and F. C. Wheeler, copartners as Wheeler Brothers, and Florence Wheeler and Minnie Wheeler, their respective wives, commenced this action against the city of Aberdeen, a municipal corporation, John Lindstrom and James Birmingham, to recover damages for the destruction of a certain frame building, together with its contents, and for other injuries. John Lindstrom and James Birmingham were respectively the mayor and acting marshal of the city of Aberdeen.

The complaint alleges that, on October 10, 1905, the plaintiffs held an unexpired lease on a certain lot in the business section of the city of Aberdeen; that they were the owners, and in possession, of a certain frame store building located thereon; that they there engaged in conducting a retail mercantile business, having and owning for that purpose a stock of coffees, teas, spices, glassware, queensware, crockery, and groceries, together with certain furniture and fixtures; that they were realizing a net profit of $300 per month; that on October 10, 1905, and on other dates immediately thereafter, the defendants wrongfully, unlawfully, with violence, and force, did take possession of the said property and the whole thereof, did oust plaintiffs therefrom, and did wrongfully destroy such buildings, improvements and fixtures; that plaintiffs were thereby compelled to remove their stock of goods; that the building was rendered unfit for occupancy; that their business was destroyed; that such acts were committed in the presence of a large number of plaintiffs’ acquaintances, subjecting plaintiffs to great indignities, mental suffering, humiliation, shame, and disgrace, and that they sustained damages in the total sum of $7,812.

The defendants admitted the destruction of the building, but denied all the wrongful acts alleged in the complaint. For a first affirmative defense they alleged, that on October 16, 1903, the city of Aberdeen was visited by a great fire, which destroyed the entire business district; that on October 17, 1903, a mass meeting of citizens requested the city council to enact an ordinance creating fire limits; that on said October 17, 1903, at a special meeting, the city council passed ordinance No. 372, entitled: “An ordinance creating fire limits and dividing the city of Aberdeen into two building districts, and providing for the construction, alteration, and repair of buildings therein,” etc.; that on October 19, 1903, the city council, at a special meeting, passed the following resolution:

“Resolution. Be it resolved by the City Council of the City of Aberdeen, as follows:—
“That until such time as an ordinance can be enacted and put in force, no person, firm or corporation shall be permitted to use any of the streets or alleys within the district hereinafter described for the deposit or unloading of any lumber or building materials, without first obtaining a written permit for a temporary structure from the city clerk. The following is the district hereinbefore referred to: [Here follows description of the district.]
“That for the period of time above referred to, no permit shall be granted for any structures or buildings within said area but temporary structures not exceeding one story in height, and the persons applying for such permit to erect such temporary structure or building shall make application therefor in writing, signed by him or his agent in substance as follows:
“Application for permit to erect a temporary building.
“To the City of Aberdeen: I hereby apply for a permit to erect a temporai’y building, in accordance with the outline of plans hereto attached, upon the premises described in the annexed schedule. And in consideration of such permit being granted, I hereby undertake and agree with the city of Aberdeen to remove said temporary structure within six months after this date, or to make the same conform with the ordinances of the city of Aberdeen then in force, with reference to fire protection and in event of my failure so to do, within the said time I hereby waive all claim for damages, which may accrue to me or my assigns by reason of the removal or destruction of said buildings, by the city authorities, after said date. . . .
“That upon filing such application with the city clerk, duly signed, with an outline of plan of the proposed temporary building the city clerk shall issue to such applicant a permit, . . . ”

that the plaintiffs had full knowledge and notice of ordinance No. 372, and the above resolution, both of which were published in the official paper of the city; that the city council, at a regular meeting held on October 21, 1903, passed ordinance No. 375, substantially the same as ordinance No. 372; that ordinance No. 375 was published on October 24, 1903, and is still in full force and effect; that plaintiffs’ property is, and was, located within the first building district created by such resolution and ordinances; that the resolution was passed, as plaintiffs well knew, for the purpose of holding the situation within the burned district in statu quo, until such time as ordinance No. 875 might be enacted at a regular meeting, and become operative; that pursuant to such resolution of October 19, 1908, and other proceedings of the city council, the plaintiffs applied to the city for a building permit for the eréction of a one-story frame building upon their leased lot; that in consideration of the granting of such permit, they entered into a written agreement with the city that the building to be erected by them should be removed within six months after October 19, 1908, or made to conform to the ordinances of the city then in force, and that in the event of their failure to remove the same, they would waive all claims for damages which might accrue to them by reason of its removal or destruction by the city authorities; that in pursuance of such permit the plaintiffs erected the building mentioned in the complaint; that after the expiration of six months they failed and refused to remove the same or to make it conform to the ordinances of the city, although the defendants had made repeated demands upon them so to do, and had also served upon them a resolution of the city council passed August 2, 1905, requiring its removal; that the defendants Lindstrom and Birmingham are respectively the mayor and acting marshal of the city of Aberdeen, and were acting as such under the authority of the ordinances, resolutions, and instructions of the city of Aberdeen, and also under the authority of the contract entered into by the plaintiffs with the city when they destroyed the plaintiffs’ building, and that they did so without inflicting any unnecessary damages.

For their second affirmative defense the defendants alleged that, on or about August 10, 1905, when the defendants, in pursuance of the resolution of August 2, 1905, were about to destroy the building, the plaintiffs herein filed in the superior court of Chehalis county a complaint and application for injunction; that in such action the plaintiffs herein were plaintiffs, and the city of Aberdeen and John Lindstrom, as mayor, and H. H. Carter, as marshal, were defendants; that in their complaint the plaintiffs alleged their ownership of the building here involved, pleaded the enactment of ordinance 375, and the resolution of August 2, 1905; alleged that the city, through its mayor and marshal, threatened to summarily destroy their building; and that ordinance No. 375 and the resolution of August 1905, and other acts and proceedings of the city looking towards the removal of their building were invalid; that an ex parte restraining order coupled with a show-cause order was granted by the court and served on the defendants therein, who are the defendants in this action; that the city of Aberdeen, John Lindstrom, as mayor, and H. H. Carter, as marshal, appeared and made answer, alleging the various steps and proceedings taken by the city creating fire district No. 1, the enactment of ordinance No. 375, the issuance of a permit to the plaintiffs, their contract with the defendant city, the passage of the resolution of August £, 1905, and the right of the city to destroy plaintiffs’ temporary building; that to such answer the plaintiffs replied; that upon the issues joined trial was had, evidence adduced, and that after a hearing on the merits the court made findings of fact and conclusions of law in favor of the defendants, which were attached to and made a part of the answer therein; that final judgment was entered in favor of the defendants; and that thereby all the matters and things claimed by the plaintiffs in their complaint herein were concluded, decided, and disposed of by the court in favor of the defendants; that the findings, conclusions and judgment in such former action have not been vacated, reversed or set aside, but are in full force and effect on all the parties. , The plaintiffs having replied, a jury trial was had, and a verdict was returned in favor of the plaintiffs for the following damages: For loss by destruction of building, $400; for Toss by damage to stock of goods, and costs of removal, $4<00; for damages to the business of plaintiffs, $500. From a judgment entered upon this verdict, the defendants have appealed.

The above statement discloses the situation surrounding the parties. It is undisputed that the fire took place as alleged; that the ordinances and resolutions were passed; that the building permit was issued; that the contract was actually signed by plaintiffs (although they allege in their reply and testify that it was signed under duress) ; that the building was erected by plaintiffs; that notice for its removal was given; that the injunction suit was instituted; that final judgment was rendered therein; and that the appellants destroyed the building. The record, however, shows much dispute as to the validity of the ordinances, resolutions, building permit, and plaintiffs’ agreement with the city; as to the effect of the judgment in the injunction suit; as to the amount of damages sustained by plaintiffs; and as to the liability of the appellants therefor.

The first contention of the appellants is that the trial court erred in refusing to discharge the jury and dismiss the action. Assuming that the appellants, as they contend, were entitled to destroy respondents’ building, we think it was their duty to do so in a careful and prudent manner, without unnecessary damage or injury to the material of which it was constructed, or to the furniture, fixtures, and merchandise which it contained. There is evidence tending to show that they summarily proceeded with haste and violence, after the dissolution of the injunction, and that in so doing they unnecessarily destroyed and rendered worthless the material of which the building had been constructed, and that they also seriously and needlessly damaged the respondents’ furniture, fixture's, and merchandise. This they were not entitled to do. If, in fact, they did any unnecessary damage, they should be held liable therefor. Although the appellants denied having done any unnecessary damage, the evidence was conflicting and the issue of the existence and amount of such unnecessary damage, if any, was properly submitted to the jury for their determination.

Appellants further contend that the trial court erred in permitting the respondent N. G. Wheeler to testify in rebuttal that he signed the contract for removal and waiving damages, under circumstances tending to show fraud or duress on the part of the city, insisting that the court thereby opened a question which had been concluded by the former adjudication in the injunction suit. By their answer the appellants pleaded all of the issues in the former action, and also set forth at length the findings of fact, conclusions of law and final judgment entered therein. The 7th finding in such action pleaded herein reads as follows:

“That on the 21st day of October, 1903, the plaintiffs herein, N. G. Wheeler and F. C. Wheeler, co-partners as Wheeler Bros., applied to the city of Aberdeen for a building permit to erect a temporary wooden building not exceeding one story in height, and thereupon the said Wheeler Bros, entered into an agreement in writing with the city of Aberdeen wherein they agreed, in consideration of such permit being granted, to remove such temporary building within six months after said date, or cause the same to conform to the ordinances of the city of Aberdeen with relation to fire protection which might then be in force, and thereupon the city of Aberdeen granted to the said Wheeler Bros, a permit for a temporary building; that a copy of said agreement and permit is set out in paragraph 6 of section 8 of the defendants’ answer, and that said agreement was entered into and permit granted to the plaintiffs under the provisions of the resolution passed by the city council on the 19th day of October, 1903; that at the time of taking out said building permit for said temporary building, and at the time of signing of said agreement the plaintiffs, Wheeler Bros., well knew that the city of Aberdeen was contemplating the enactment of an ordinance for fire protection in the city of Aberdeen covering the district described in the resolution of October 19, 1903, the city authorities deeming ordinance No. 372 to be void on account of having been passed at a special meeting of the council.”

The reply did not deny that this finding had been made, and it must be taken as admitted. Hence, the question as to whether the respondents made the agreement was concluded by the former adjudication. Under the issues raised by the pleadings in this case, the trial court erred in admitting evidence to show duress or fraud on the part of the city.

It is further contended that the trial court erred in admitting evidence of loss of profits to the respondents3 business by reason of their being compelled to change their location. The record in the former action, pleaded herein, shows a final adjudication to the effect that the building existed in violation of law; that it was an illegal structure, and that the appellants should not be enjoined from removing it. The respondents, therefore, had no vested right to its occupancy. It became necessary for them to discontinue their business in that location, and they could not recover from the appellants any damages to their business by reason of loss of profits that resulted from a change of location.

The respondents claim the injunction suit did not become res adjudicata for the following reasons: (1) That the answer of the appellants failed to allege that no appeal from the judgment had been taken; (2) that an appeal had in fact been taken and was pending in the supreme court; (3) that the parties to the judgment and to this action are not the same; (4) that the cause of action in the injunction suit was different from the cause-of action herein, and (5) that the judgment was pleaded as a complete defense, while it is only a partial defense, if any.

Each and all of these contentions are without merit. Tie answer alleged that the judgment was in full force and effect, and that it had not been vacated, reversed, or set aside; while the reply, although making certain allegations showing that the respondents desired to take an appeal, failed to allege that an appeal had been taken. It did appear from the evidence that an appeal had been taken, but that it had been dismissed by this court prior to the trial of this action. The judgment was then in full force and effect, and the respondents, under the issues presented by the pleadings and evidence, were in no position to raise at the trial any question as to the pend-ency of an appeal, at the time of the commencement of this action. 24 Am. & Eng. Ency. Law (2d ed.), 809-813. The issues involved in the injunction suit and in this action are the same in so far as the right of the appellants to destroy the building was concerned. The parties to the two several actions are either identical or in privity. 24 Am. & Eng. Ency,. Law (2d ed.), 751-2. The former adjudication was pleaded by the appellants as a complete defense, and the appellants have constantly relied upon it, and still rely upon it, as such complete defense.

If it appears from the evidence that the respondents are entitled to certain damages by reason of the wanton and unnecessary manner in which the appellants damaged their merchandise, furniture, and fixtures, and the defense of res adjudicate so pleaded fails to completely prevent any recovery by respondents, the defense should not for that reason be entirely ignored or stricken on the theory that it was only partial. From the issues raised by the pleadings, we conclude, as a matter of law, that the defense of res adjudicate became effective for the purpose of preventing the respondents from recovering any damages for loss of profits, and the trial court erred in admitting evidence tending to show the same.

It is further contended that the trial court erred in admitting evidence (1) tending to show the cost of removal of the respondents’ merchandise, and (2) in permitting the respondents to show, by cross-examination of Mayor Lindstrom, that parties other than the plaintiffs were permitted to violate the fire ordinances, and that the city itself had violated them by maintaining wooden buildings within the fire limits. We think both of these contentions should b,e sustained. By reason of the former adjudication, it devolved upon the respondents to remove their stock, and they certainly could not require the plaintiffs to pay for the expense thereof. Conceding that other parties than the respondents were permitted to maintain and occupy buildings in violation of the city ordinances, such fact would not excuse the acts of respondents. Evidence tending to show such a course upon the part of the city was not only incompetent, but we think it was prejudicial as tending to raise an immaterial issue, and cause the jury to believe the appellants had been guilty of favoritism in discriminating against the respondents. The city denied any such favoritism, and claimed that it was generally enforcing the ordinances. It could not remove all buildings at once. It had to commence somewhere. It had already caused others to be removed, and was proceeding with the work by removing respondents’ building.

Other assignments of error presented need not be considered, as they will not arise upon a new trial which must be ordered. From the pleadings and record, we conclude that, by reason of the former adjudication, which is not denied by the reply, the appellants were entitled to destroy the respondents’ building, and that by reason of such right the respondents are not entitled to recover for its value as a building, although they may recover damages for any unnecessary injury done to the materials of which it was constructed. The respondents are not entitled to recover damages to their leasehold estate, and the trial court properly withdrew the consideration of any such damages from the jury. It also properly withdrew from the jury the consideration of any damages which the respondents claim by reason of mental distress, shame, humiliation, and disgrace. The only damages which we think the respondents would be permitted to recover in this action are such as were needlessly inflicted by the appellants in unnecessarily rendering worthless the material of which the building was constructed, and in unnecessarily destroying or rendering less valuable the furniture, fixtures, and merchandise. Upon a new trial of this action recovery for such damages should be permitted if sustained by the evidence.

The judgment is reversed, and the cause remanded with instructions to grant a new trial.

Mount, C. J., Root, Dunbar, Hadlet, and Fullerton, JJ., concur.  