Born v. City of Spokane

• Decision Date: 19 March 1902
• Citation: 27 Wash. 719,68 P. 386
• Parties: BORN v. CITY OF SPOKANE.
• Court: Washington Supreme Court

68 P. 386

27 Wash. 719

BORN v. CITY OF SPOKANE.

Supreme Court of Washington

March 19, 1902

Appeal from superior court, Spokane county; Geo. A. Joiner, Judge.

Action by Philip Born against the city of Spokane. From a judgment for plaintiff, defendant appeals. Affirmed.

John P Judson, A. H. Kenyon, and John C. Kleber, for appellant.

Barnes & Latimer, S. C. Hyde, and Shine & Winfree, for respondent.

DUNBAR J.

Respondent brought suit against the defendant city to recover damages for personal injuries alleged to have been sustained by him upon the public streets of the city of Spokane by falling into a trench that had not been filled in or protected, and which was maintained through the alleged negligence of the city. The case was tried by a jury, and a verdict was returned against the city for $1,750. After due course judgment was entered for the above sum; and this appeal is from said judgment, and the rulings of the court on the pleadings and during the progress of the trial.

A demurrer was interposed to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The overruling of the demurrer is one of the errors alleged. The question involved arises under the provisions of the charter of the city of Spokane. Section 220 provides: 'All claims for damages for personal injuries or for injuries to property, alleged to have been sustained by reason of the negligence of the city, or of any officer, agent, servant, or employé thereof, must be presented to the city council within one month after any of such injuries shall have been received in the manner hereinafter in this section provided. * * * All claims for injury to person or property, and all notices of such claims herein required, shall be in writing and shall state the time when and the place where such injuries were received, and must also state the cause, nature and extent of the same, the amount of damages sustained thereby and the amount for which the claimant will settle the same, and must be verified by his or her affidavit, in proper form, to be true; and the refusal or omission to present such claim and give notice where notice is required, in the manner and within the time in this section required, shall be taken to be and shall be a waiver of any and all damages on account of such injuries, and shall be a bar to any suit or action against the city to recover the same, or any part thereof.' It is conceded that the claim was not made or the notice given within the time prescribed by the charter. This question was raised on the demurrer, upon an objection to the testimony under the complaint, and on an objection to an instruction given by the court in relation thereto. The excuse offered by the plaintiff in his complaint for not filing the claim within the time prescribed by the charter is as follows: 'That plaintiff did not present his claim to said city council within one month, as provided for in the amendment to the charter of the city of Spokane, for the reason that the injuries received in said accident so crippled and disabled him that he was confined to his bed ten weeks from the date of said accident, and was by reason thereof unable to attend to the filing of his claim; that, owing to the nature of his injuries, it was impossible and unreasonable for plaintiff to state within one month the nature and extent of the injuries by him received, as it is required to be stated by said amendment of the city charter, and plaintiff only knew on the date of filing his claim that he would be lame for life as a result of his injuries.' The validity of a charter provision of this kind was sustained by this court in Scurry v. City of Seattle, 8 Wash. 278, 36 P. 145. Provisions of this kind seem to be reasonable and in the furtherance of justice. The object of the law, doubtless, is to protect the municipality from fraudulent claims, by enabling its officers not only to examine the locus in quo, to see if the city had been negligent, but to obtain witnesses and procure testimony, by drawings and photographs, to be used if deemed necessary in resisting the claim, and generally to investigate the demand while it is fresh and while evidence is obtainable, and for the purpose of compromising or paying said claim if it is deemed a just and legal one; and such provisions are universally sustained if they are reasonable in time and demand. But while the law must be a reasonable one, a reasonable compliance with its terms is all that can be demanded; and, if it appears that it was an impossibility for the claimant to make his claim within the time prescribed, he will not be held to a literal compliance with provisions of the law. Under the ordinary statutes of limitations, it is universally held that the statute does not run against one who is incapacitated from bringing the action; and it would work a miscarriage of justice to hold that one who is injured should be barred from collecting meritorious damages by reason of the fact that he was incapacitated from filing his claim until after the time prescribed had expired. The allegations of the complaint in this respect are not as definite as they might be, and were properly subject to a motion to make more definite and certain; but this motion was not made, and the allegations being taken as true, and in the light most favorable to plaintiff, as required upon demurrer, it seems to us a question is presented for the consideration of the jury.

It is earnestly contended by the respondent--and the great weight of authority is to the effect--that the question of whether or not the claimant was incapacitated from presenting his claim within the time required by the law is a question for the jury, and, being a pure question of fact, it must necessarily be so under our constitution and laws. It is however, contended by the appellant that the incapacity must be a mental incapacity, and not a physical one; that a plaintiff is not compelled to present his claim in person, and that it is not usual for him to do so; that he may be physically incapacitated, and yet be able to file...