Haynes v. City of Seattle

• Decision Date: 24 September 1915
• Docket Number: 12132.
• Citation: 151 P. 789,87 Wash. 375
• Court: Washington Supreme Court
• Parties: HAYNES v. CITY OF SEATTLE.

151 P. 789

87 Wash. 375

HAYNES v. CITY OF SEATTLE.

No. 12132.

Supreme Court of Washington, En Banc.

September 24, 1915

Appeal from Superior Court, King County; Boyd J. Tallman, Judge.

On rehearing. Former opinion set aside, judgment reversed, and cause remanded.

For former opinion, see 83 Wash. 51, 145 P. 73.

Ellis and Fullerton, JJ., dissenting in part.

Geo. B. Cole and John Wesley Dolby, both of Seattle, for appellant.

Jas. E Bradford and Howard M. Findley, both of Seattle, for respondent.

PARKER J.

The plaintiff, Dora Haynes, seeks recovery of damages for personal injuries which she alleges resulted to her from the negligence of the defendant city of Seattle. The cause is before us upon rehearing. Our former decision rendered December 28, 1914, is reported in 83 Wash. 51, 145 P. 73 wherein we affirmed the judgment of the superior court dismissing the action upon the ground that the plaintiff had failed to file with the city her verified claim for damages within 30 days after the time when they accrued, as required by the city charter and statute then in force. The decision both of the superior and of this court was rested upon facts disclosed by the pleadings, upon the city's objection to the introduction of evidence on the part of the plaintiff at the commencement of the trial in the superior court. Further consideration of the cause in the light of the act of 1915 relating to the filing of such claims for damages with cities of the first class leads us to the conclusion that appellant Dora Haynes, is entitled to have the judgment of dismissal set aside and her motion for new trial now granted, though we may assume that the trial court was not in error in its rulings in dismissing the action and in refusing her a new trial, under the statute and charter as then existing.

According to the allegations of appellant's complaint, she was injured on March 30, 1913, and was thereby incapacitated mentally and physically from verifying and filing her claim with the city for a period of more than 30 days thereafter. On April 26, 1913, within the 30-day period, her father, W. B. Haynes, prepared, verified by his oath, and filed with the city in her behalf her claim for damages resulting from her injuries so received. It is not contended that this claim is defective in any respect, except that it was insufficient as a prerequisite to her right to sue the city for such damages solely because it was not verified by her own oath, as the then existing law and charter provisions required. This was the sole ground of our former decision, as it apparently was also that of the superior court, touching the sufficiency of this claim. Inmediately after the restoration of her mental faculties, so she was capacitated to verify a claim by her own oath, on June 4, 1913, some 60 days after receiving her injuries, she filed another claim with the city of the same import, verified by her own oath. This claim was also held by the superior court and by our former decision as being insufficient as a prerequisite to her right to sue the city, because it was too late in time under the statute and charter, being after the 30-day period therein prescribed. The statute and charter provisions controlling the question of the sufficiency of these claims and their filing with the city as a prerequisite to appellant's right to sue the city for the damages claimed by her, up until after the rendering of our former decision in this case, are found in sections 7995, 7996, and 7997, Rem. & Bal. Code, and section 29, art. 4, of the city charter of Seattle, wherein 30 days is prescribed as the limit of time for the filing of such claims with the city, and wherein it is also provided that such claims shall 'be sworn to by the claimant.' These statutory and charter provisions were modified, touching the right of a claimant who is incapacitated from filing a claim verified by his own oath during the prescribed 30-day period, by the act of 1915, which became the law in June, 1915 (Laws of 1915, p. 421), which added a proviso to section 7996, Rem. & Bal. Code, reading as follows:

'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 and presented on behalf of said claimant by any relative or attorney or agent representing the injured person, and no action for damages now pending or hereafter brought shall be defeated by the failure of the person to verify or file the claim in person if action be brought within three years after the taking effect of this act where a claim has heretofore been verified and filed within the time and in compliance with the terms of this act if said claim has been rejected.'

Now, since appellant filed her petition for rehearing timely, and thereby prevented the final disposition of the action in this court until the disposition of her petition for rehearing (Rem. & Bal. Code, § 1740), it is manifest that the action was pending, within the meaning of the proviso of the act of 1915 above quoted, at the time that act became the law. State v. Tugwell, 19 Wash. 238, 257, 52 P. 1056, 43 L. R. A. 717. It seems quits clear to us, therefore, the appellant's right to now have the case proceed to trial upon the merits was perfected by the filing with the city of the claim verified by her father and the enactment of this proviso, regardless of the correctness of the former rulings of the superior court or of the former decision of this court.

Some contention is made by counsel for the city that appellant is not now in position to take advantage of the filing of her claim verified by her father. Prior to the trial counsel for the city moved to strike several portions of appellant's original complaint, including the allegation therein of the filing of her claim verified by her father. In disposing of this motion the court entered its order in these indefinite words, 'Motion to strike from complaint is granted in part, denied in part,' with nothing further in writing evidencing the court's decision thereon. Thereafter counsel for appellant filed an amended complaint omitting therefrom the allegation of the original complaint touching the filing of the claim with the city verified by appellant's father, but alleging the filing with the city of the claim verified by herself after the expiration of the 30-day period for filing such claims, which claim was also alleged in the original complaint in addition to the first claim verified by her father. This, it is insisted, was a voluntary abandonment of her rights under the claim verified by her father within the 30-day period. We do not so construe appellant's omission of this claim from her amended complaint. It is true the order of the court striking portions of appellant's original complaint does not in terms strike the allegation of this claim therefrom, but, in view of the indefiniteness of that order and the probable oral remarks of the court made in disposing of the motion, we will presume that counsel for appellant was warranted in construing it, and did construe it, as striking from the original complaint the allegation with reference to the claim verified by appellant's father, and that therefore they were compelled to omit such allegation from the amended complaint. We think this was not a voluntary abandonment of appellant's rights so far as they were rested upon that claim.

We conclude that appellant is now entitled to proceed to trial upon the merits and to amend her amended...