Cook v. City of Yakima

• Decision Date: 18 November 1944
• Docket Number: 29283.
• Citation: 153 P.2d 279,21 Wn.2d 810
• Parties: COOK v. CITY OF YAKIMA.
• Court: Washington Supreme Court

153 P.2d 279

21 Wn.2d 810

COOK v. CITY OF YAKIMA.

No. 29283.

Supreme Court of Washington, En Banc.

November 18, 1944

Suit by Marvin E. Cook, individually, and Marvin E. Cook, as administrator of the estate of Esther F. Cook, against the City of Yakima, a municipal corporation, to recover damages for wrongful death of the decedent allegedly caused by defective condition of a street in the defendant city. From a judgment of dismissal entered after a demurrer to the complaint had been sustained, plaintiff appeals.

Judgment reversed.

MILLARD J., and SIMPSON, C.J., dissenting.

Appeal from Superior Court, Yakima County; N. K. Buck, Judge.

J. P Tonkoff, of Yakima, for appellant.

Harry L. Olson, of Yakima, for respondent.

MALLERY Justice.

The plaintiff, individually and as administrator of the estate of Esther F. Cook, brought suit to recover damages suffered by reason of the death of Esther F. Cook alleged to have been caused by the defective condition of a street in the city of Yakima. A demurrer to the complaint was sustained, a judgment of dismissal was entered, and the plaintiff has appealed.

The demurrer was sustained upon the ground that the notice of claim for injuries, filed by appellant with the respondent city, was insufficient, in that it did not give the street and number of the residence of the plaintiff for the six-month period prior to the accident.

The allegation in the claim, touching residence in the case at bar, reads: 'That the claimant was the husband of Esther F. Cook, and that for a period of more than six months last past, claimant and Esther F. Cook resided as husband and wife at 1107 Willow Street, Yakima Washington.' (Italics ours.)

The only question involved in this case is whether that is a sufficient compliance with the requirements as to allegations of residence.

It appears that the combined requirements of the city charter and state law as to allegations touching the residence of the claimant are that the claimant must state his actual residence by street and number (a) at the date of filing the claim and (b) for a period of six months prior to the time such claim for damages accrued.

The accident in which Esther F. Cook is alleged to have lost her life occurred November 28, 1942. The claim was verified and filed December 24, 1942. Thus, to meet the requirements of the statute and the city charter, the claimant's residence by street and number must have been alleged for a period of six months prior to November 28th, and also the claimant's residence must have been alleged by street and number as of December 24, 1942, when the claim was filed.

The language in the allegation touching residence in this case is inept and not to be commended. The street and number of the residence, 1107 Willow street, Yakima, Washington, is accurate and unquestioned. The use of the words ' last past' in the notice would indicate that the allegation of residence for the six-month period was related to the date of filing the claim, which would satisfy the requirement of stating the residence at the date of presenting the claim and we so accept it. It is contended, however, by respondent that this makes the allegation of residence prior to the occurrence of the accident cover a period of less than six months, since the accident occurred upwards of a month prior to the filing.

The statute is mandatory, but that fact does not require that it be strictly construed. This court has said: 'On the contrary, the very fact that it is mandatory and unavoidable calls for a reasonable construction in the light of its plain purpose, unless we are to regard the statute as a pitfall rather than a precaution.' Maggs v. Seattle, 86 Wash. 427, 150 P. 612, 614.

In the case of Frasier v. Cowlitz County, 67 Wash. 312, 121 P. 459, it was said:

'Statutory and charter provisions, requiring the presentation of claims and notice of injuries to the governing authority of the municipality sought to be charged with liability Before a suit can be maintained thereon, are to be liberally construed.

'* * * The purpose of these provisions, as applied to a claim arising from a tort, is to enable the municipality to investigate both the claim and the claimant while the occurrence is recent and the evidence available, to the end that it may protect itself against spurious and unjust claims. When the claim substantially complies with the legislative requirement and these ends are subserved, the claim has accomplished the purpose intended.' See also Green v. Seattle, 146 Wash. 27, 261 P. 643, Lindquist v. Seattle, 67 Wash. 230, 121 P. 449, Titus v. Montesano, 106 Wash. 608, 181 P. 43.

Cases dealing with the required statement in the claim relating to residence of the claimant are in two classes: (1) those concerning the sufficiency of the address, and (2) those concerning the sufficiency of the statement relating to the period of time of residence at the address given. Both have been liberally construed.

In the case at bar, the address is conceded to be accurate. It is only the statement relating to the length of residence at the given address that is claimed to be insufficient. It falls under the second classification.

In Decker v. Seattle, 80 Wash. 137, 141 P. 338, the claim expressed the period of residence at the given address as of the date the claim was verified rather than the date upon which it was filed. The interval between filing and verification was three days. Among other things, the court said: 'We have never held that even a mandatory requirement may not be met by a substantial, though not an exact, nice, and literal compliance. * * * In the present instance, the interval between the date of the verification and filing of the claim was so short as to constitute a substantial compliance with the statute. In such a case, it is only reasonable to permit the claim to be supplemented by proof that the place of residence was not changed in the interval. So supplemented, the claim, obviously, was not, and could not have been, misleading.'

To the same effect is Bane v. Seattle, 80 Wash. 141, 141 P. 339.

The case of Maggs v. Seattle, supra, differs on its facts from the Decker case, supra, only in that the interval between verification and filing was thirteen days instead of three days. The court said: 'After mature consideration we are firmly convinced that a claim which states the claimant's place of residence at the date of verification and for at least six months prior thereto, when both verified and filed within 30 days after the claim accrued, as provided by the charter, must be construed as reading as of the date of filing, and as making a prima facie showing of the residence as of that date, the presumption being that the place of residence remains unchanged until the contrary is made to appear. This is the general rule in all cases where a status is once established. Such a construction meets every possible useful purpose of the notice, which is to give the city the opportunity to investigate both the claim and the claimant while the occurrence is recent and the evidence available.'

In Titus v. Montesano, supra [106 Wash. 608, 181 P. 45], the claimant stated that she 'had resided in Montesano for 5 months and 20 days, and in Seattle '15 years prior thereto." It was contended by the city that this meant that fifteen years ago the claimant lived in Seattle, and that such information was irrelevant, and did not comply with the statutory requirements. The court declined to follow this interpretation and held that the natural meaning of these words was that the claimant had lived in Seattle for the entire period of fifteen years, prior to her residence in Montesano. A similar ambiguity was Before the court in Richardson v. Seattle, 97 Wash. 521, 166 P. 1131, 1134, where the court held the word 'during' to mean 'throughout the course of,' and not merely at some time.

The respondent relies most strongly upon Sopchak v. Tacoma, 189 Wash. 518, 66 P.2d 302. The allegation regarding residence in the Sopchak case reads as follows: "I, the undersigned, John Sopckak, aver that I reside at 2547 South G. Street, Tacoma, Washington, and that I am a citizen of the State of Washington, and City of Tacoma, Washington; that I am thirty-two years of age, a single man, and have resided in Tacoma thirty-one years, having been born in Marinette, Wisconsin, September 4, 1900."

This was held to be insufficient, the court therein saying: 'But there is no language in the claim in this case even remotely purporting to state the claimant's residence by street and number during the six months' period.'

Manifestly, the Sopchak case falls under the first classification and is not in point on the time element. There the claimant stated the period of residence in Tacoma as thirty-one years, which is of course more than six months. The insufficiency arose out of a total failure to state the address by street and number for any period.

The case most nearly in point with the case at bar is Duschaine v. Everett, 5 Wash.2d 181, 105 P.2d 18, 19, 130 A.L.R. 134. The allegations in the Duschaine case were: "That she is now a resident of the City of Everett, Washington, and residing at 1510 Chestnut St. and prior thereto resided at route number 1, Marysville, Washington."

This was held to be sufficient, the court saying:

'The case upon which respondent most confidently relies, and one no doubt, that largely influenced the trial court, is the recent case of Sopchak v. Tacoma, 189 Wash. 518, 66 P.2d 302. We regard the opinion in that case as entirely sound, and while, upon a cursory reading, it may seem to be somewhat at variance with our present holding, a careful study of the opinion, having in mind the facts and the...