Collins v. City of Spokane

• Decision Date: 14 July 1911
• Citation: 116 P. 663,64 Wash. 153
• Parties: COLLINS v. CITY OF SPOKANE.
• Court: Washington Supreme Court

116 P. 663

64 Wash. 153

COLLINS v. CITY OF SPOKANE.

Supreme Court of Washington

July 14, 1911

Department 1. Appeal from Superior Court, Spokane County; E. H Sullivan, Judge.

Action by Charles H. Collins against the City of Spokane. From a judgment of nonsuit, plaintiff appeals. Affirmed.

Charles P. Lund and Del Cary Smith, for appellant.

Fred B Morrill and V. T. Tustin, for respondent.

GOSE J.

This is an action of tort against the city of Spokane. A judgment of nonsuit was entered against the plaintiff, and he has appealed.

The complaint charges that the appellant's minor son lost his life in consequence of the negligence of the respondent in maintaining a footbridge over the Spokane river without railings or other protection. The Code (Rem. & Bal. §§ 7995 7997) provides: 'Whenever a claim for damages sounding in tort against any city of the first class shall be presented to and filed with the city clerk or other proper officer of such city, in compliance with other valid charter provisions of such city, such claim must contain, in addition to the valid requirements of such city charter relating thereto, a statement of the actual residence of such claimant, by street and number, at the date of presenting and filing such claim; and also a statement of the actual residence of such claimant for six months immediately prior to the time such claim for damages accrued.' 'Compliance with the provisions of this act is hereby declared to be mandatory upon all such claimants presenting and filing any such claims for damages.' The judgment of nonsuit was entered because the appellant had failed to comply with these requirements.

The appellant contends (1) that the provisions of the statute are unreasonable and unconstitutional; (2) that they were waived; and (3) that it was competent to prove that the city had actual notice of his residence. We will consider these propositions in the order stated.

This court is committed to the view that there is a common-law liability in this state against cities and towns for their torts in the performance or nonperformance of their municipal duties. Hutchinson v. City of Olympia, 2 Wash. T. 314, 5 P. 606; Hase v. Seattle, 51 Wash. 174, 98 P. 370, 20 L. R. A. (N. S.) 938.

We have also held that reasonable legislative regulations for the presentment of claims against a city for a tort will be upheld ( Durham v. Spokane, 27 Wash. 615, 68 P. 383), and that unreasonable regulations will not be enforced. Hase v. Seattle, 51 Wash. 174, 98 P. 370, 20 L. R. A. (N. S.) 938; Jones v. Seattle, 51 Wash. 245, 98 P. 743; Wurster v. Seattle, 51 Wash. 654, 100 P. 143; Scherrer v. Seattle, 52 Wash. 4, 100 P. 144.

It is contended that the provision requiring 'a statement of the actual residence of such claimant by street and number at the date of presenting and filing such claim, and also a statement of the actual residence of such claimant for six months immediately prior to the time such claim for damages accrued,' is an unreasonable restriction upon the rights of litigants, and therefore not enforceable under the rule announced in the Hase Case: We cannot agree with this contention. As was said in Johnson v. City of Troy, 24 A.D. 602, 48 N.Y.S. 998: 'It is frequently just as important to investigate the claimant as it is the claim.' In the Hase Case a city ordinance requiring the claim to state the residence of the injured party for one year preceding his injury was held unreasonable. The statute, it will be observed, only requires the notice to state the residence at the date of presenting and filing the claim, and for six months immediately prior to the time the claim accrued. The line of demarcation between a reasonable and an unreasonable regulation cannot always be defined with exactness. Like the line which marks the limit of the police power, it must be resolved by a process of inclusion and exclusion, rather than precise definition. While adhering to the view announced in the Hase Case, we are not disposed to extend the doctrine there announced.

The appellant has cited Born v. Spokane, 27 Wash. 719, 68 P. 386, and Bell v. Spokane, 30 Wash. 508, 71 P. 31. These cases have no application. In the Born Case it was held that mental or physical incapacity is a sufficient excuse for not giving notice of the claim within the time prescribed in the city charter. In the Bell Case it was held that a clerical error in the jurat to the verification does not invalidate the notice. Statutory regulations of this character, if reasonable, violate no constitutional rights. Thompson on Negligence, vol. 5, § 6322.

The complaint alleges: 'That within 30 days from said 2d day of September, 1909, the plaintiff filed with the city of Spokane a claim for damages on account of the death of said William Henry Collins, as aforesaid, by reason of the negligence and carelessness of the defendant, as hereinbefore stated, which said claim was rejected by said defendant and disallowed.' This is admitted in the answer, as follows: 'Admits that within 30 days from the said 2d day of September, 1909, the plaintiff filed with the city of Spokane a claim for damages on account of the death of the said William Henry Collins, which said claim was rejected by the defendant, and denies each and every other allegation of said paragraph 4.'

It is contended that this constitutes a waiver. Assuming, but not deciding, that the city may waive the provisions of the statute, notwithstanding the mandatory provision, we do not think this amounts to a waiver. The appellant had presented a claim for damages, but it contained none of the statutory requirements. The complaint was demurrable, and the demurrer would have admitted every fact admitted by the answer. The answer admitted the facts pleaded, but did not admit any fact not pleaded. Durham v. Spokane, 27 Wash. 615, 68 P. 383, and Pearson v. Seattle, 14 Wash. 438, 44 P. 884, cited by the appellant, are not in point.

It is urged that the action being for the enforcement of a common-law right, the failure to allege a compliance with the statute is available only by answer or plea in abatement. White's Supplement to Thompson on Negligence, § 6356, is relied upon in support of this view. The author states the rule as contended for, but cites only one case ( Bunker v. Hudson, 122 Wis. 43, 99 N.W. 448) in support of the text. That case holds that the statute merely postpones the right to commence the action until the matters required by ...