Frasier v. Cowlitz County

• Decision Date: 26 February 1912
• Citation: 67 Wash. 312,121 P. 459
• Parties: FRASIER et al. v. COWLITZ COUNTY.
• Court: Washington Supreme Court

121 P. 459

67 Wash. 312

FRASIER et al. v. COWLITZ COUNTY.

Supreme Court of Washington

February 26, 1912

Department 1. Appeal from Superior Court, Cowlitz County; H. E McKenney, Judge.

Action by Lena Frasier and others against Cowlitz County. From a judgment for defendant, plaintiffs appeal. Reversed.

Robt. E. Tunstall, C. Kalahan, and W. G. Drowley for appellants.

R. W Wilbur, Geo. W. Rowan, and J. E. Stone, for respondent.

GOSE J.

This action is prosecuted by the widow and minor children of William R. Frasier, deceased, to recover damages arising from his death through the alleged negligence of the defendant. On October 9, 1909, the deceased was riding upon a loaded wagon over a bridge which formed a part of a county road in Cowlitz county, when the bridge collapsed, causing the wagon and wheel team to fall to the bed of the stream, and inflicting injuries upon him from which he died three days later. On November 4th following, the widow, on behalf of herself and her minor children, presented a verified claim for damages to the board of county commissioners of Cowlitz county, wherein she claimed that the death of her husband was caused by the negligence of the county. On December 7th following, the board rejected the claim. This action was commenced in February, 1910. The complaint alleges, and the evidence tends to show, that the bridge had been unsafe for a considerable time before the injury, and that the defendant knew it. At the close of the plaintiff's evidence the court, upon the challenge of the defendant, entered a judgment in its favor. The judgment shows upon its face that it was entered for the defendant, because it was the opinion of the court that no claim had been presented to the county by any person 'lawfully authorized to present the same' for the minor appellants.

The appeal presents two questions: (1) Was the presentation of the claim by the widow for herself and minor children a legal presentation on behalf of the children? And (2) was the claim properly verified?

The statute provides that an action may be brought for the enforcement of a claim against a county after it has been presented and disallowed by the board of county commissioners. Rem. & Bal. Code, § 3909. This statute is construed, in Hoexter v. Judson, 21 Wash. 646, 59 P 498, to mean that an action cannot be prosecuted against a county upon a claim, whether resting in contract or arising from a tort, until a claim has been presented to the county commissioners for allowance or rejection. The statute makes no provision as to who shall present the claim or as to what the claim shall set forth. We think the first question must receive an affirmative answer. In McLeod v. Spokane, 26 Wash. 346, 67 P. 74, it was held that the wife might verify a claim against the city for damages which she sustained in consequence of its negligence. That action was prosecuted by the husband and wife, and the contention that the claim was not presented in behalf of both of the parties was rejected. 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. Hammock v. Tacoma, 40 Wash. 539, 82 P. 893; Durham v. Spokane, 27 Wash 615, 68 P. 383; Ehrhardt v. Seattle, 33 Wash. 664, 74 P. 827; Bell v. Spokane, 30 Wash. 508, 71 P. 31; Schnee v. City of Dubuque, 122 Iowa, 459, 98 N.W. 298. 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. In an action prosecuted by an administrator for the benefit of the widow and children to recover damages arising from the death of the intestate caused by the alleged negligence of the defendant, a notice of the injury, signed by the attorney for the administrator, was held sufficient. Hupfer v. National Distilling Co., 119 Wis. 417, 96 N.W. 809. See, also, Carpenter v. Town of Rolling, 107 Wis. 559, 83 N.W. 963. Under a statute requiring a notice of the claim to be given 'by the person injured or by any other person in his behalf,' it was held that the father, the natural...