Johnson v. City of Seattle, 28242.

• Decision Date: 16 June 1941
• Docket Number: 28242.
• Citation: 114 P.2d 972,9 Wn.2d 231
• Parties: JOHNSON v. CITY OF SEATTLE.
• Court: Washington Supreme Court

114 P.2d 972

9 Wn.2d 231

JOHNSON v. CITY OF SEATTLE.

No. 28242.

Supreme Court of Washington, En Banc.

June 16, 1941

Action by Carol Ann Johnson, by her guardian ad litem, Harold A Johnson, against the City of Seattle, to recover for injuries sustained by plaintiff who was struck by a stone projected from a street surface by a passing automobile. From an order dismissing the action with prejudice, plaintiff appeals.

Affirmed.

MILLARD STEINERT, and DRIVER, JJ., dissenting.

Appeal from Superior Court, King County; Chester A. batchelor judge.

Ralph B. Potts and H. Orley Solomon, both of Seattle, for appellant.

A. C Van Soelen and C. C. McCullough, both of Seattle, for respondent.

BEALS Justice.

Plaintiff, Carol Ann Johnson, a minor, by her guardian, Harold A. Johnson, instituted this action against the city of Seattle, seeking damages on account of personal injuries suffered as the result of being struck by a stone projected from a street surface by a passing automobile. In the complaint it was alleged that the city had been negligent in permitting rocks and pebbles to accumulate upon the traveled portion of Highland Drive, a public street of the city. Attached to the complaint is a copy of the claim filed with the city on plaintiff's behalf. In this claim, after stating plaintiff's residence, it is alleged that Highland Drive is a regularly dedicated public street of the city, and that at the intersection of the highway named with Holden street, the city had permitted rocks and small boulders to accumulate on the street from Hanford street past Othello street. The claim continued by alleging knowledge on the part of the city of the dangerous situation, and the injury to the plaintiff which resulted in damage.

From the bill of exceptions which is Before us, it appears that the case was called for trial, and that upon plaintiff's counsel offering in evidence the claim which had been filed on plaintiff's behalf against the city, the defendant interposed an objection, upon the ground that the claim was defective in describing the alleged street defect as having existed on Highland Drive, near the intersection of Othello street; that it was thereupon stipulated by counsel for the respective parties 'that said location was a non-existent place, and it was further stipulated that the accident occurred at Highland Park Way near West Othello street;' whereupon the court sustained defendant's objection to the introduction of the claim in evidence, to which ruling plaintiff excepted. It further appears from the bill of exceptions that defendant then moved for a nonsuit and a dismissal of the action with prejudice, and that after argument the court granted the motion. From an order dismissing the action, plaintiff has appealed.

The sole question presented is the ruling of the trial court sustaining respondent's objection to the admission in evidence of the claim which describes the accident as having taken place on Highland Drive near the intersection of Holden, Hanford and Othello streets. The parties stipulated in open court that the claim as drawn describes a non-existent place, the accident in fact having occurred on Highland Park Way near West Othello street.

It is alleged in the claim that Highland Drive is hard surfaced to a width of eighteen or twenty feet, with a gravel shoulder of approximately the same width on the east side of the pavement; that the street runs from north to south in an ascending grade; that near its intersection with Holden street, there had been in operation for several months prior to the date of the accident a WPA project in the nature of sewer construction; and that as the result of work done in carrying out this project, a large amount of rocks and pebbles had accumulated on the street and pavement, and had been allowed by the city to remain thereon.

Appellant, while admitting that the description of the scene of the accident contained in the claim describes a non-existent place, argues that from the claim the city received sufficient notice to enable the city without difficulty to determine the place where the accident occurred, particularly in view of the fact that the claim refers to the work done pursuant to the WPA project.

Referring to claims against municipalities, this court has held that the statute, Rem.Rev.Stat., § 9478, requiring that such claims be filed should be liberally construed, and that when the notice is of such a character as to put the city in a position to make necessary investigations and protect its rights, the underlying purpose of the statute is accomplished. Lindquist v. Seattle, 67 Wash. 230, 121 P. 449; Maggs v. Seattle, 86 Wash. 427, 150 P. 612; Barton v. Seattle, 114 Wash. 331, 194 P. 961. It does not appear that in any of the cases cited above, the description of the place of the accident was incorrect.

Appellant also relies on the text of White on Negligence of Municipal Corporations 808, § 676.

Appellant relies upon the case of Hammock v. Tacoma, 40 Wash. 539, 82 P. 893. It appeared that in the claim which the plaintiff had filed, the accident was described as having happened upon a sidewalk on the east side of J street, half-way between South Forty-First street and South Forty-Second street, in the city of Tacoma. Upon the trial, it appeared that South Forty-Second street did not intersect J street, and that the accident had taken place on J street between Forty-First and Forty-Third streets. It was held that the discrepancy was insufficient to defeat plaintiff's cause of action, as the city could not have been misled in discovering the actual place of the accident on the east side of J street, south of South Forty-First street, and half-way between that street and the next intersecting street, which was South Forty-Third street, instead of South Forty-Second street. Such a trifling inaccuracy, which could nowise mislead the city or render the discovery of the scene of the accident even difficult, should not defeat a claim otherwise sufficient.

Appellant also cites the case of Ellis v. Seattle, 47 Wash. 578, 92 P. 431, in which the claim described the place of the accident as on the west side of Westlake avenue, between Thomas and John streets, on or near the westerly street car tracks, and near No. 228 Westlake avenue. Upon the trial it was discovered that in fact the accident occurred on the east side of the named street, instead of on the west The trial court held the variance between the claim and the proof fatal, and dismissed the action. On appeal, after stating the facts, it was intimated that the city claim agent might reasonably have been excused from examining the east side of the street, had the notice not stated that the accident happened near No. 228 Westlake avenue, which number is on the east side of the street, but that with such a specific location, the claim was sufficient. The order dismissing the case was reversed, and a new trial ordered.

The two cases last cited do not support appellant's contention in the case at bar. In each case it appeared that the accident was correctly located, with considerable particularity, upon the street where it actually occurred. An entirely different situation is presented in the case at bar.

In the case of Solastic Products Co. v. Seattle, 144 Wash. 691, 258 P. 830, this court held claims for damages sufficient, even though the operations conducted by the city which resulted in the alleged damage were not described in the claim filed as they were in the later complaint based thereon. This court reiterated the view that claims should be liberally construed, but the case is not in point here, as the defect in the claim consisted merely of an inaccurate description of the exact negligence of the city in conducting a sluicing operation which resulted in damage to the claimant.

In the recent case of Duschaine v. Everett, 5 Wash.2d 181, 105 P.2d 18, 130 A.L.R. 134, this court held a claim against the city sufficient, even though it failed to comply strictly with the requirement that the claim state the claimant's residence both at the date of filing the claim and for six months immediately prior to the time the alleged damages accrued. In the case cited, we reviewed our different decisions in connection with the question presented, and again stated the rule that only substantial compliance with the legislative and charter provisions respecting the presentation of claims for tort against a municipality is required. Again the case is not controlling here, as the alleged defect in the claim concerned merely a statement concerning the claimant's residence, which it appeared was sufficiently described.

In the case at bar, the claim stated that the accident occurred on Highland Drive near the intersection of Othello street. As above stated, it is stipulated that the accident in fact occurred on Highland Park Way near West Othello street. It is not contended that the street known as Highland Park Way is a branch or extension of, or is located near, any street which is designated as Highland Drive.

Article 4, § 29, of the charter of the city of Seattle provides inter alia, that all claims such as that with which we are here concerned 'must accurately locate...