Forseth v. City of Tacoma

• Decision Date: 05 March 1947
• Docket Number: 29917.
• Citation: 178 P.2d 357,27 Wn.2d 284
• Parties: FORSETH et al. v. CITY OF TACOMA.
• Court: Washington Supreme Court

178 P.2d 357

27 Wn.2d 284

FORSETH et al. v. CITY OF TACOMA.

No. 29917.

Supreme Court of Washington, En Banc.

March 5, 1947

Rehearing Denied April 7, 1947.

Action by Catherine Forseth, a minor, by Charles M. Forseth, her guardian ad litem, against the City of Tacoma, to recover damages for personal injuries allegedly sustained while riding in a municipal bus. From a judgment of dismissal, the plaintiff appeals.

Judgment affirmed.

MILLARD SCHWELLENBACH and ABEL, JJ., dissenting.

Appeal from Superior Court, Pierce County; E. F Freeman, judge.

Rex S Roudebush and Charles S. Lyons, both of Tacoma, for appellant.

Howard Carothers, Corp. Counsel, or Tacoma, Reuben C. Carlson and Merton Elliott, both of Tacoma, for respondent.

STEINERT Justice.

This was an action to recover damages for personal injuries alleged to have been sustained by a minor while riding in a municipal bus. The trial court sustained a demurrer to plaintiff's amended complaint and, upon the declination of the plaintiff to plead further, entered judgment dismissing the action, upon the ground that it appeared on the fact of plaintiff's pleading that no claim had been filed by her against the defendant city within the time limited by law. Plaintiff appealed.

It appears from the amended complaint that at about 7 o'clock in the morning, on September 8, 1944, appellant, Catherine Forseth, a girl 17 years of age, was a passenger for hire on a bus which was owned and operated by the respondent, the city of Tacoma; that she was at the time on her way to work, being employed as a shipfitter's helper; that the driver of the bus operated the vehicle in a grossly negligent manner and at an excessive rate of speed, considering the foggy condition of the atmosphere then prevailing, and collided with the rear end of a truck; and that as a result of the collision, appellant, who with many other passengers was at the time standing in the aisle of the bus, was thrown violently backward against an iron railing and was severely injured.

Inasmuch as the demurrer attacks the legal sufficiency of the amended complaint, we quote the material portion thereof as contained in paragraph 5. 'The plaintiff [appellant] further alleges that at the time of the accident and injury described, she was 17 years of age and that at said time the City of Tacoma carried liability insurance covering the operation of the Belt Line bus service; that the Insurance Company which wrote the insurance is the Ohio Casualty Insurance Company of Hamilton, Ohio. A few days after the accident the plaintiff was contacted by an Insurance Adjuster operating from the office of one Arthur E. Campbell, 511 Dexter Horton Building, Seattle 4, Washington; said Adjuster was the representative of the Insurance Company to which reference is made; on the occasion referred to said Adjuster was requested by the Municipal Belt Line Division of the Department of Public Utilities of the City of Tacoma to contact the plaintiff and the other injured passengers, investigate the nature and extent of their injuries and, if possible, settle the claim of the plaintiff and the other passengers for and on behalf of the defendant [respondent] City; that said procedure was the regular, routine method by which all of such claims had been handled and disposed of for years previous to said accident; that as such agent for the City of Tacoma, said Adjuster started negotiations with the plaintiff for the stated purpose of effecting a settlement covering all of her injuries and damages sustained as a result of the accident; that said Insurance Adjuster informed her at the beginning of the negotiations that he was the man who had the responsibility of negotiating for the settlement of claims on account of the personal injuries sustained by passengers on September 8, 1944, on the Belt Line bus, and that the plaintiff would be paid proper compensation for her injuries and damages; said negotiations were prolonged and delayed by the Adjuster and continued until substantially more than sixty days after the date of the accident, at which time the plaintiff was informed for the first time by the Adjuster that there was a sixty-day period provided by the Tacoma City Charter and that plaintiff's claim was at that time barred on account of her failure to file her claim within said period of sixty days following the accident and that there was nothing for the plaintiff then to do but accept the amount offered in settlement of her claim for damages and personal injuries or get nothing at all; the plaintiff immediately consulted an attorney, her present counsel; that the plaintiff was a minor and without knowledge or experience relative to her rights; that she did not know that a claim against the City of Tacoma was required under the Tacoma Charter, and that the Insurance Adjuster gave her no intimation that there was any such limitation relative to the presentation of a claim by her for the safeguarding and protection of her legal rights; on the contrary, the plaintiff alleges that for a period of more than sixty days after said accident the Adjuster led her to believe, and she did believe, as a result of his assurances and representations, that she did not need a lawyer and that she was perfectly safe in proceeding with her negotiations with the Adjuster; plaintiff further alleges that she was living away from her home and parents with married sisters during the four years preceding the accident and that during the time she has been working for wages she has tried to look after her own affairs. By reason of all of the foregoing, the plaintiff alleges that she was trapped as a result of the prolonged negotiations referred to, and the misleading representations of said agent of the City of Tacoma.'

In a subsequent paragraph of her amended complaint, appellant alleged that, after it became apparent that there was no prospect of effecting a settlement, she prepared and presented to the city her claim, which was filed May 1, 1945; that more than 60 days had elapsed since the filing of the claim, and no action thereon had been taken by the city, wherefore she considered the claim as having been rejected; that under the circumstances as alleged the city had waived, and is estopped to plead, its right to enforce against her a strict compliance with the charter provision limiting the period for filing claims to 60 days after the date upon which the injuries were sustained; and that she was therefore entitled to a reasonable time within which to present her claim and bring suit thereon.

For convenient reference, we summarize the material allegations on which the appellant relies, as follows: The City of tacoma carried liability insurance on the Belt Line bus service, on which appellant sustained her injuries. The adjuster and representative of the insurance company was requested by the 'Municipal Belt Line Division of the Department of Public Works of the City of Tacoma' to interview the appellant with reference to the nature and extent of her injuries and, if possible, settle her 'claim' therefor. This was in accordance with the regular procedure that had obtained for many years in the disposition of such claims. The adjuster began negotiations with the appellant for the purpose of effecting settlement for her injuries and, in such negotiations, informed her of his authority in that respect and advised her that she would be paid proper compensation for her damages. However, the adjuster prolonged and delayed the negotiations until more than 60 days had elapsed, and then for the first time notified her of the 60-day limitation period prescribed by the city charter and at the same time advised her that all she could then do was to accept the amount offered to her. Appellant was a minor, residing away from her parents and living with her married sisters. She had no knowledge or experience relative to her rights, and did not know that the city charter required the filing of a claim. The adjuster gave her no intimation relative to the charter provision, but on the contrary led her to believe that 'she did not need a lawyer', and that she was safe in conducting her negotiations with him.

Upon these allegations, appellant contends that the respondent city waived, and is estopped to plead, its right to insist upon strict enforcement of the 60-day limitation for the filing of claims in such actions. The trial court held to the contrary.

In passing upon appellant's contentions it is well to have definitely Before us the statutory and charter provisions with reference to claims such as the one involved here.

Rem.Rev.Stat. § 9478 (Laws of 1909, p. 181, § 1), 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 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 [actual residence, according to place and time, during a prescribed period].' (Italics ours.)

Rem.Rev.Stat § 9479 (Laws of 1917, p. 339, § 1), so far as material here, reads: 'Nothing in this act shall be construed as in anywise modifying, limiting or repealing any valid provision of the charter of any such city relating to such claims for damages, but the provisions of this act shall be in addition to such charter provisions, and such claims for damages, in all other respects, shall conform to and comply with such charter provisions: Provided, that if the claimant shall be incapacitated from verifying and filing his claim for damages within the time prescribed by charter, or if the claimant be a minor, * * * then the claim may be verified...