Hall v. City of Spokane

• Citation: 140 P. 348,79 Wash. 303
• Decision Date: 27 April 1914
• Docket Number: 11,829.
• Parties: HALL v. CITY OF SPOKANE.
• Court: United States State Supreme Court of Washington

140 P. 348

79 Wash. 303

HALL v. CITY OF SPOKANE.

No. 11,829.

Supreme Court of Washington

April 27, 1914

Department 1. Appeal from Superior Court, Spokane County; J. Stanley Webster, Judge.

Action by Sarah Hall against the City of Spokane. Judgment for defendant, and plaintiff appeals. Affirmed.

Frederick W. Dewart and Frank R. Monfort, both of Spokane, for appellant.

H. M Stephens, Wm. E. Richardson, Ernest E. Sargeant, and Dale D Drain, all of Spokane, for respondent.

GOSE J.

The plaintiff in this action has sued for injuries sustained to an eye, from falling upon a concrete sidewalk in the city of Spokane on the 4th day of September, 1912. She alleges that the walk had been out of repair for such a length of time that the city knew, or in the exercise of reasonable care ought to have known, its condition.

At the close of the plaintiff's testimony, the court withdrew the case from the jury and entered a judgment in favor of the defendant. Plaintiff has appealed.

On the 4th day of October, 1912, Sarah E. Barton, on behalf of the appellant, filed with the city a claim for damages. In the verification she deposed that the appellant 'is unable' to sign the same. The city charter of the city of Spokane provides that all persons having claims for damages for personal injuries sustained by reason of alleged negligence of the city must present such claim to the council 'within thirty days after the injury or damage.' It also provides: 'If the claimant is physically or mentally unable to present such claim within the time aforesaid, it may be presented and filed by some one in his behalf. Failure to present such claim in writing, duly verified in the form manner, and time aforesaid, shall bar any action against the city for such alleged damage or injury.' In paragraph 6 it is alleged: 'That within 30 days after said injury, plaintiff duly presented her claim for damages to the defendant corporation, a copy of which is hereto attached and made a part hereof, and that said claim for damages was, by said defendant, rejected on or about the 30th day of November, A. D. 1912.' The city answered this paragraph as follows: 'Admits that the written instrument attached to the complaint and referred to in paragraph 6 thereof, was filed in the office of the clerk of said city of Spokane on the 4th day of October, 1912, and that said claim for damages was rejected by the defendant on or about the date alleged in the complaint. The defendant denies each and every allegation contained in the said complaint not herein expressly admitted.' It is contended that the answer admits the due and legal presentation of the claim. This position is untenable. There is no allegation in the complaint that the appellant was physically or mentally unable to present her claim within the 30 days limited by the charter. Nor is this fact stated in the body of the claim. The only reference to it is in the verification. The legal effect of the answer is to admit that the claim attached to the complaint is a copy of the claim which was presented. In all other respects paragraph 6 of the complaint is denied. The answer cannot be construed as an admission that the claim was legally presented, nor can it be construed as admitting it to be a fact that the plaintiff was 'physically or mentally unable to present such claim' within the time limited by the charter.

The appellant in this behalf relies upon Durham v. Spokane, 27 Wash. 615, 68 P. 383. A reference to page 623 of 27 Wash. (68 P. 383), will disclose that in that case it was alleged that the claim was presented by the claimants and duly verified by them. Under the issues it devolved upon the appellant to prove that she was physically or mentally unable to present her claim within the charter period.

The appellant verified her complaint on the 5th day of December 1912. She testified that from the time of the accident up to the time she signed the complaint her eyesight was gradually failing, and that it was in a worse condition at that time than it was at the time the claim was filed. Mrs. Barton, the person who presented and verified the claim, testified that the appellant's eyesight was in a very bad condition for four months following the injury; that during all that time she had to poultice the appellant's eyes and bathe them with hot water, and that she and the appellant went to see the doctor every 5 days at first and then every 10 days. The appellant tendered testimony which tended to show that on October 4th, the day the claim was filed, the appellant was...