Maggs v. City of Seattle

• Decision Date: 29 July 1915
• Docket Number: 12538.
• Citation: 86 Wash. 427,150 P. 612
• Court: Washington Supreme Court
• Parties: MAGGS et al. v. CITY OF SEATTLE.

150 P. 612

86 Wash. 427

MAGGS et al. v. CITY OF SEATTLE.

No. 12538.

Supreme Court of Washington, En Banc.

July 29, 1915

Appeal from Superior Court, King County; Mitchell Gilliam, Judge.

Action by J. M. Maggs and others against the City of Seattle. From judgment dismissing the action, plaintiffs appeal. Reversed and cause remanded.

E. H Guie and W. A. Keene, both of Seattle, and E. F. Chabot, for appellants.

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

ELLIS J.

This is an action for damages which it is alleged were caused to the plaintiffs' property by the careless and negligent filling of a contiguous street by the city of Seattle. The complaint and an alleged copy of the plaintiffs' claim for damages thereto attached show that the claim was verified on December 31, 1912, and was presented to the city council and filed with the city clerk on January 13, 1913. The defendant demurred to the complaint upon the grounds that it does not state sufficient facts, and that the action was not commenced within the time allowed by law. The demurrer was sustained. The plaintiffs electing to abide by their pleading, judgment was entered, dismissing the action, with costs. Plaintiffs appeal.

The sole question presented on the briefs and in argument relates to the time of verification of the claim. The sufficiency neither of the complaint nor of the claim is questioned in other particulars. The applicable provision of the city charter (section 29, art. 4), among other things, provides that all claims for damages against the city must be sworn to by the claimant and presented to the city council and filed with the city clerk within 30 days after the time when such claim for damages accrued. The act of 1909, relating to claims against cities of the first class (Rem. & Bal. Code, § 7995), provides that every claim for damages sounding in tort against any city of the first class, filed in compliance with valid charter provisions of such city, shall contain, in addition to the valid requirements of the charter----

'a statement of the actual residence of such claimant, by street and number, at the date of presenting and filing such claim; and also a statement of the actual residence of such claimant for six months immediately prior to the time such claim for damages accrued.'

Section 7997 declares compliance with the 'provisions of this act' to be mandatory. Independent of some valid charter provision requiring the presentation and filing of a claim, this act of 1909 has no force. It merely adds a new requirement to those made by the charter. It merely declares that requirement mandatory, but not the requirements contained in the charter itself.

'The first section of the act of 1909 makes it manifest that the provisions of that law, as relating to cities of the first class, have no independent force. They can only be invoked by reference to the city charter, and as applying to claims prescribed and filed 'in compliance with valid charter provisions of such city.' That law does not extend the requirement of notice, either as contained in any city charter or as contained in the law itself, to other persons or other torts than those contemplated by such city charter. If the charter does not require the presentation or filing of any notice of claim in a case such as here under consideration, then the law of 1909 requires none.' Wolpers v. Spokane, 66 Wash. 633, 635, 120 P. 113, 114.

The notice of claim here in question gives the residence of all of the claimants at the date of the verification of the claim, and for one year prior thereto, as No. 1611 Eighth Avenue North in Seattle, Wash. The respondent contends that this notice speaks as of the date of the verification, and not as of the date of the filing; hence does not meet the requirement of the above-cited statute. In support of this contention our decisions in the cases of Ransom v. South Bend, 76 Wash. 396, 136 P. 365, Collins v. Spokane, 64 Wash. 153, 116 P. 663, 35 L. R. A. (N. S.) 840, Conner v. Seattle, 76 Wash. 37, 135 P. 617, Kincaid v. Seattle, 74 Wash. 617, 134 P. 504, 135 P. 820, and Benson v. Hoquiam, 67 Wash. 90, 121 P. 58, are cited. In these decisions we held that the provisions of this statute, and of the cognate statute touching cities of the third and fourth classes, are mandatory, that compliance therewith is a condition precedent to the bringing of the action, and that the giving of notice in substantial compliance with the statute must be alleged and proved. Neither of these cases, however, touches the point here involved. In the Ransom Case the claim was not filed until 73 days after the accident. In the Collins Case the claim contained none of the statutory requirements. In the Kincaid Case the claim was not verified at all, and did not state the place of the claimant's residence, but we held that in that case no notice was required. In the Connor Case, and also in the Benson Case, the claim contained no reference whatever to the claimant's place of residence. Moreover, both the Ransom Case and the Benson Case arose under the statute relating to cities of the third and fourth classes, a statute complete in itself without reference to any charter provision. Rem. & Bal. Code, § 7998. In none of these cases was there any compliance with the statute, substantial or otherwise.

In the case of Decker v. Seattle, 80 Wash. 137, 141 P. 338 in which the same question was presented as found here, we called attention to the fact that we have never held that even the mandatory requirement of a statute may not be met by a substantial, though not an exact, nice and literal compliance with its terms. The only difference between the notice in the case here and that in the case last cited is found in the fact that in the Decker Case the notice was verified 3 days before it was filed, and in this case the notice was verified 13 days before it was filed. In both cases the notice was verified, presented, and filed within the 30 days required by the charter provision. In the Decker Case we held that the interval between the verification and the filing of the claim was so short as to constitute a substantial compliance with the statute, and that it was only reasonable to permit the claim to be supplemented by proof that the place of residence was not changed in the interval. This case was originally submitted to Department No. 2 of this court, but, owing to the continual recurrence of the question involved, we have secured the consent of both parties to its submission on the briefs to the court en banc. After mature consideration we are firmly convinced that a claim which states the claimant's place of residence at the date of...