Lund v. City of Seattle

• Decision Date: 30 June 1931
• Docket Number: 22945.
• Citation: 1 P.2d 301,163 Wash. 254
• Court: Washington Supreme Court
• Parties: LUND et al. v. CITY OF SEATTLE et al.

1 P.2d 301

163 Wash. 254

LUND et al. v. CITY OF SEATTLE et al.

No. 22945.

Supreme Court of Washington

June 30, 1931

Department 2.

Appeal from Superior Court, King County; Robert M. Jones, Judge.

Action by Lorraine P. Lund, a minor, by Maida A. Boyes, her guardian, and Maida A. Boyes, administratrix de bonis non of the estate of Darwin T. Lund, deceased, against the City of Seattle, a municipal corporation, and another. From the judgment, defendants appeal.

Affirmed.

A. C Van Soelen, Glen E. Wilson, and Bundy & Swale, all of Seattle, for appellants.

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

MILLARD J.

As a result of the collision in the city of Seattle June 30, 1927 of one of the defendant city's street cars, while operated by defendant Peterson, with a fire department truck, Darwin T. Lund, a member of the fire department, was killed. The trial to a jury of an action against Peterson and the city of Seattle, brought on behalf of decedent's daughter to recover for the death of her father, resulted in a verdict for $4,000 in favor of the plaintiff. From the judgment entered, motions for judgment notwithstanding the verdict and for a new trial having been overruled, the defendants appealed.

In 1918 Lund and his wife, now Maida A. Boyes, were divorced. Their only child, Lorraine P. Lund, then three years old, was awarded to the mother. Pursuant to the decree of divorce, the father paid until the time of his death $15 monthly for the maintenance of the child. In addition thereto the father's contributions of clothing and money for the child amounted to $15 monthly; that is, the child received from her father from the date of the divorce until his death $360 per annum in money and clothing. The daughter was twelve years old at the time of her father's death. It appears from the testimony of the daughter, who visited her father frequently, that the daughter and father had real affection each for the other.

On July 11, 1927, Maida A. Boyes was regularly appointed guardian of the person and estate of Lorraine P. Lund. On July 25, 1927, which was timely, the guardian filed with the city of Seattle a claim in behalf of her ward for damages on account of the death of the ward's father. In verifying the claim, Mrs. Boyes stated that '* * * She executes, presents and verifies this claim for damages as the mother, and as the duly appointed, qualified and acting guardian of the said Lorraine P. Lund, for the reason that said Lorraine P. Lund is a minor of the age of about twelve years.'

The claim was subscribed by 'Lorraine P. Lund; Lorraine P. Lund by Maida A. Boyes, mother of Lorraine P. Lund, a minor; and Maida A. Boyes, guardian of the person and estate of Lorraine P. Lund, a minor.' No other claim was filed with the city on account of the death of Lund.

Florence Lund, widow of Darwin T. Lund, and the lady whom he married following his divorce from Maida A. Boyes, was appointed July 12, 1927, administratrix of Lund's estate. She, as the regularly appointed and qualified administratrix, was administering that estate at the time the claim was filed with the city by the guardian in behalf of the decedent's daughter. On August 16, 1928, the estate was closed, and the administratrix, to whom as surviving spouse the whole estate was set aside, was discharged. The inventory of the assets of the estate did not include the claim against the appellants for the death of Lund.

Lorraine P. Lund, by her guardian (Maida A. Boyes), commenced, prior to the discharge of the administratrix, an action against the appellants to recover for the death of her father. Demurrer to the complaint was sustained on the ground that the personal representative of the deceased, the administratrix of Lund's estate, was a necessary party plaintiff. On October 19, 1928, Maida A. Boyes was appointed administratrix de bonis non of the estate of Darwin T. Lund, deceased, on her petition therefor, and a showing that there was 'estate remaining unadministered,' and that the former administratrix, Florence Lund, refused to enforce a claim against the appellants. Thereafter an amended complaint was filed in which Maida A. Boyes, as such administratrix, was added as a party plaintiff and the trial of the action resulted as recited above.

Appellants contend that the claim filed did not comply with the statute (Rem. Comp. Stats. § 9478 et seq.) and the city charter, which require that all claims for damages against the city must be presented and filed by or on behalf of the claimant, and that all claims must 'be sworn to by the claimant.' It is argued that 'in a death case the personal representative is the claimant and no one else'; therefore the claim filed by the mother and guardian is invalid, inasmuch as at the time the purported claim was filed there was a duly appointed, qualified, and acting personal representative in the person of the administratrix, Florence Lund.

While under our statute (section 183, Rem. Comp. Stat.) only the personal representative of the decedent may maintain an action for damages against the one causing the death, it does not follow that, as a condition of the right to bring an action against a city for wrongful death, a claim be filed only by the personal representative of the decedent on behalf of the child of such decedent. As a condition precedent to the right to bring an action against the city therefore, one having a claim for damages sounding in tort against any city of the first class is required to file with the proper officer certain information. Section 9478, Rem. Comp. Stat. Section 9479, Rem. Comp. Stat., provides that, if the claimant be a minor, the claim may be verified and presented on behalf of the claimant by any relative or attorney or agent representing the injured person. This was done in the case at bar. The claim was verified and presented on behalf of the minor by the mother, who was the guardian of the minor. So far as pertinent, section 9479, supra, reads 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 peron 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.'

We have heretofore held that 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 an action can be maintained thereon, are to be liberally construed. We said in Frasier v. Cowlitz County, 67 Wash. 312, 121 P. 459: '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. 953. 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 guardian of his minor children, might give the notice. Taylor v. Woburn, 130 Mass. 494. The same general principle is announced in Perry v. Clarke County, 120 Iowa, 96, 94 N.W. 454. * * * The argument that the commissioners could not safely pay the portion of the claim belonging to the minors to any one except a guardian, and therefore that none but a guardian may present the claim on their behalf, is more plausible than substantial. As we have seen, the minor may present a claim in his own behalf, and the party against whom the claim was asserted would be confronted with the same condition suggested by the argument. In either case the party against whom the claim was asserted could protect himself by requiring the appearance of a guardian Before paying over the money. We think the statutory requirement is met when a joint or joint and several claim is presented by any one of the beneficiaries. It is probably true in this state, as counsel asserts, that the guardianship by nature extends only to the custody of the person of the ward and not to his property. But this does not preclude the parent in a case like this from making a preliminary claim or demand in behalf of the minor. Rem. & Bal. Code,§ 5932.'

We held in Green v. Seattle, 146 Wash. 27, 261 P. 643, 644 that the wife of a person whose death was alleged to have been wrongfully caused by the city could bring an action, as administratrix, against the city under section 183, Rem. Comp. Stat., although she had filed the required claim in her individual capacity, and not as administratrix, where she was the sole beneficiary of the deceased. We said: '* * * this court has repeatedly held that the city charter and statutory...