Duschaine v. City of Everett, 28040.

• Citation: 105 P.2d 18,5 Wn.2d 181
• Decision Date: 20 August 1940
• Docket Number: 28040.
• Parties: DUSCHAINE v. CITY OF EVERETT.
• Court: United States State Supreme Court of Washington

105 P.2d 18

5 Wn.2d 181

DUSCHAINE v. CITY OF EVERETT.

No. 28040.

Supreme Court of Washington

August 20, 1940

Department 2.

Action by Irene Duschaine against the City of Everett, a municipal corporation, for injuries sustained by reason of the alleged defective condition of a city street. Demurrers to the complaint and to an amended complaint respectively were sustained, and, from a judgment of dismissal, plaintiff appeals.

Reversed with directions.

Appeal from Superior Court, Snohomish County; Ralph C. Bell, judge.

Verne C. Henry and Wm. A. Johnson, both of Everett, for appellant.

Jess H Davis and Parker Williams, both of Everett, for respondent.

STEINERT Justice.

Plaintiff brought suit to recover damages for personal injuries alleged to have been sustained by reason of the defective condition of a city street. Demurrers to the complaint and to an amended complaint, respectively, were sustained, and plaintiff having elected to stand upon her amended pleading judgment of dismissal was entered. Plaintiff has appealed.

The only question involved in this case is whether or not the notice of claim for injuries, filed by appellant with respondent city, sufficiently complied with the necessary legal requirements.

Rem.Rev.Stat § 9478, provides that when a claim for damages sounding in tort against any city of the first class is presented to, and filed with, the city clerk or other proper officer, in compliance with valid provisions of the city's charter, such claim must contain, in addition to such charter provisions, '* * * 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.'

Rem.Rev.Stat. § 9479, provides that the statutory requirements shall be in addition to any valid charter provisions, and that in all other respects the claim for damages shall conform to and comply with such provisions of the charter.

Rem.Rev.Stat. § 9480, provides that compliance with the statutory requirements above mentioned shall be mandatory upon claimants for damages.

Section 145 of the charter of the city of Everett, a city of the first class, provides that claims for personal injuries shall contain, among other things, '* * * a statement of the actual residence of the claimant by street and number at the time of presenting and filing the claim, and the actual residence of such claimant for six months immediately prior to the time such claim for damage accrued,' which provision, it will be noted, is almost identical with the provision quoted above from Rem.Rev.Stat. § 9478.

The pertinent portion of appellant's claim reads: '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.' (Italics supplied.)

The precise question Before us is whether or not the claim sufficiently designates appellant's residence during the six-month period specified in the statute and the charter.

The original complaint contained no allegation concerning residence, except by a reference to, and incorporation of, the claim, attached as an exhibit to the pleading. The amended complaint, however, contained an affirmative allegation that '* * * for more than six months prior to the time her cause of action for damages accrued her residence was 1510 Chestnut Street, Everett, Washington and route number 1, Marysville, Washington.'

In quoting the affirmative allegation of the amended complaint, we do not mean to infer that it is to be read into the claim as an amendment thereof, or as remedying any inherent defect therein; our purpose is merely to present a fact admitted by the demurrer to the amended complaint. We are aware that the question presented for decision is whether or not the claim as filed meets the requirements of the law.

Affirming the imperative declaration of Rem.Rev.Stat., § 9480, we have repeatedly held that the requirements of Rem.Rev.Stat. § 9478, and the valid requirements of city charters relating to the presentation of claims, are mandatory, and compliance therewith is a condition precedent to the bringing or maintenance of an action. Collins v. Spokane, 64 Wash. 153, 116 P. 663, 35 L.R.A.,N.S., 840; Kincaid v. Seattle, 74 Wash. 617, 134 P. 504, 135 P. 820; Connor v. Seattle, 76 Wash. 37, 135 P. 617; Benson v. Seattle, 78 Wash. 541, 139 P. 501; Hall v. Spokane, 79 Wash. 303, 140 P. 348; Jorguson v. Seattle, 80 Wash. 126, 141 P. 334; Walters v. Tacoma, 88 Wash. 394, 153 P. 311; Barton v. Seattle, 114 Wash. 331, 194 P. 961.

However, we have as frequently and just as positively declared that claims of the character involved here, as well as statutory and charter provisions respecting their presentation, are to be construed liberally, or, as sometimes said, with that liberality, at least, which is accorded to a pleading. Lindquist v. Seattle, 67 Wash. 230, 121 P. 449; Frasier v. Cowlitz County, 67 Wash. 312, 121 P. 459; Melovitch v. Tacoma, 135 Wash. 533, 238 P. 563; Solastic Products Co. v. Seattle, 144 Wash. 691, 258 P. 830; Green v. Seattle, 146 Wash. 27, 261 P. 643; Lund v. Seattle, 163 Wash. 254, 1 P.2d 301; Eastwood v. Seattle, 169 Wash. 680, 14 P.2d 1116; Washington v. Seattle, 170 Wash. 371, 16 P.2d 597, 86 A.L.R. 113.

The rule consistently followed by this court is that literal compliance with legislative and charter provisions respecting the presentation of claims for tort against a municipality is not demanded; only substantial compliance is required. Frasier v. Cowlitz County, 67 Wash. 312, 121 P. 459; Decker v. Seattle, 80 Wash. 137, 141 P. 338; Bane v. Seattle, 80 Wash. 141, 141 P. 339; Wagner v. Seattle, 84 Wash. 275, 146 P. 621, Ann.Cas.1916E, 720; Maggs v. Seattle, 86 Wash. 427, 150 P. 612; Murray v. Seattle, 96 Wash. 646, 165 P. 895; Richardson v. Seattle, 97 Wash. 521, 166 P. 1131; Titus v. Montesano, 106 Wash. 608, 181 P. 43; Eastwood v. Seattle, 169 Wash. 680, 14 P.2d 1116.

The theory upon which this court has proceeded in adopting the rule of substantial compliance is aptly stated in Wagner v. Seattle, 84 Wash. 275, 146 P. 621, 622, Ann.Cas.1916E, 720, as follows: 'The obvious purpose of these charter and statutory provisions is to insure such notice to the city as to enable it to investigate the cause and character of the injury; and, where there is a bona fide attempt to comply with the law, and the notice filed actually accomplishes its purpose of notice, it is sufficient, though defective in some particulars. [Citing authorities.]'

Upon that theory, claims have been held by this court to be valid and sufficient despite the presence of the following types of technical defects: Where the claim spoke as of the date of verification, and not as of the date of filing, and was presented and filed three days after the date of verification ( Decker v. Seattle, 80 Wash. 137, 141 P. 338); where, in a similar situation, the claim was not filed until thirteen days after the date of verification ( Maggs v. Seattle, 86 Wash. 427, 150 P. 612); where the claim omitted the name of the city in which the claimant resided, but the venue of the jurat to the claim indicated the county, and the claim was filed with the proper city clerk ( Bane v. Seattle, 80 Wash. 141, 141 P. 339); where the claimant's street number was erroneously given as '218' instead of '208' ( Wagner v. Seattle, 84 Wash. 275, 146 P. 621, Ann.Cas.1916E, 720); where the claim merely recited that the claimant had resided at a particular address 'during' the requisite period ( Richardson v. Seattle, 97 Wash. 521, 166 P. 1131); where the claim, after giving the claimant's present address, recited that claimant had lived 'in Seattle 15 years prior to her injury' ( Titus v. Montesano, 106 Wash. 608, 181 P. 43, 45); and where the claim gave the name of the city, but failed to give the street and number of plaintiff's prior residence ( Eastwood v. Seattle, 169 Wash. 680, 14 P.2d 1116).

Respondent puts considerable stress upon the case of Barton v Seattle, 114 Wash. 331, 194 P. 961, in which this court affirmed a dismissal of the case 'because the notice did not state the residence of the claimants, or either of them, for six months immediately prior to the time the claim for damages accrued.' But in that case it appeared, as the opinion recites, that there was an entire failure to give the claimants' residence for the six-month period. The opinion, moreover, specifically distinguished that case and similar cases from those cases where, so far from failing entirely to give the requisite information, there had been an honest attempt to comply with the statute, and no intent to mislead was evident. That distinction was subsequently noted in a very pointed...