Murray v. City of Seattle

• Citation: 96 Wash. 646,165 P. 895
• Decision Date: 15 June 1917
• Docket Number: 13611.
• Court: United States State Supreme Court of Washington
• Parties: MURRAY et ux. v. CITY OF SEATTLE.

165 P. 895

96 Wash. 646

MURRAY et ux. v. CITY OF SEATTLE.

No. 13611.

Supreme Court of Washington

June 15, 1917

Department 1. Appeal from Superior Court, King County; Boyd J. Tallman Judge.

Action by Carl Murray and wife against the City of Seattle. From a judgment for plaintiffs, defendant appeals. Affirmed.

Hugh M. Caldwell and Frank S. Griffith, both of Seattle, for appellant.

Walter S. Fulton, of Seattle, for respondents.

WEBSTER J.

This is an action to recover damages for personal injuries. The material allegations of the complaint are substantially these: That on October 30 1915, at about 12:15 p. m., plaintiffs were driving their automobile south on Eighth Avenue Northwest between Seventy-Third and Seventieth Streets West, in the city of Seattle; that about 200 feet north of Seventieth Street West on the west side of Eighth Avenue Northwest, two electric light wires maintained by the city of Seattle had through its negligence been caused to fall and be suspended across Eighth Avenue Northwest. The specific acts of negligence charged against the defendant were that at the point where the wires had fallen the defendant had them attached to a pole which was wholly insufficient in strength to support them and which was not reasonably adapted to the purpose for which it had been used; that, because of long use of the pole, it had become further weakened by rot and decay and by reason thereof fell, causing the wires to be suspended across the avenue in such manner as to constitute a menace to persons having occasion to use the same; and further that the defendant negligently and carelessly permitted the wires to remain across the avenue after they had fallen notwithstanding its officers, agents, or employés knew of their condition, or by the exercise of reasonable care and diligence ought to have known thereof; that plaintiffs without fault on their part, while using the avenue for the purpose of travel, came in contact with the wires, causing the injuries set forth in the complaint; that on November 30, 1915, plaintiffs caused to be presented to the defendant as filed with the city clerk their duly verified claim for damages; and that more than 60 days had elapsed since the filing of the claim, and the same had neither been rejected nor allowed. Attached to and made a part of the complaint was a copy of the claim which states that the accident occurred on October 30, 1915. The defendant answered, denying all of the allegations of the complaint and affirmatively pleading contributory negligence on the part of the plaintiffs, which was denied by the reply. Upon these issues the cause was tried, resulting in a verdict and judgment in favor of plaintiffs.

The defendant appeals, setting forth five assignments of error, which present two questions for review: (a) Did the court err in admitting in evidence the notice of claim filed with the city clerk? (b) Did the court err in denying the defendant's motion for judgment notwithstanding the verdict? At the trial both of the plaintiffs testified that the accident occurred on October 30, 1915, and testimony to the same effect was given by two other witnesses testifying in behalf of plaintiffs. When counsel for plaintiffs offered in evidence the claim for plaintiffs offered with the city, the defendant objected to its admission upon the ground that it had not been verified as required by the city charter, and that it was 'incompetent, irrelevant, immaterial, and insufficient.' The objection was overruled and the claim was received in evidence. At the close of plaintiffs' case, the defendant announced that it also rested, and immediately moved the court for an instructed verdict in its favor upon the grounds that no notice either actual or constructive of the existence of the obstruction in the street had been brought home to the defendant, and that 'the claim allowed in evidence is relevant, immaterial, and insufficient.' The motion was denied, and the case, under instructions to which no exceptions were taken, was submitted to the jury.

After the verdict had been returned, but before it had been filed by the clerk, the defendant moved for judgment notwithstanding the verdict upon the grounds, among others:

'9(1) That plaintiffs failed to prove that the city had notice either actual or constructive or the wires being in the street or of the pole to which they were attached being blown down,' and '(3) that the claim filed with the defendant on November 30, 1915, was not a sufficient claim on which to base an action.'

At no time during the trial was the specific objection made that the claim had not been filed within the time limited by the city charter; counsel for defendant contenting himself with the objection to the verification of the claim and that same was incompetent, irrelevant, immaterial, and insufficient.

The abstract of the record, in setting forth the grounds upon which the motion for judgment notwithstanding the verdict was based, states the third ground in the following language:

'That the claim filed with defendant on November 30, 1915, was not a sufficient claim on which to base an action, not being filed in time.'

But by reference to the transcript it is found that the words 'not being filed in time' were not included as a part of the third ground of that motion. It must therefore be assumed that the transcript rather than the abstract is correct, and consequently it appeals from the record that the point that the claim had not been filed in time was not raised in the lower court in any manner.

The objection in the court below that the claim had not been properly verified seems to be abandoned on appeal, as the point is not presented in the briefs. We shall therefore not pause to discuss that question.

If it be conceded that the accident occurred on October 30, 1915, the claim filed on November 30, 1915, was one day late. Ehrhardt v. Seattle, 40 Wash. 221, 82 P. 296. Counsel for plaintiffs, however, insist that the accident actually happened on October 31, 1915, but that through mistake and inadvertence the date was stated in the notice of claim and in the complaint filed pursuant to it as October 30, 1915, and that this error ran through the whole case; that date being assumed as correct in propounding questions to the witnesses. In support of this contention, it is called to our attention that, in the cross-examination of the plaintiff Carl Murray, he testified that the accident occurred on Sunday, and that the court should take judicial notice of the fact that there was no Sunday in the month of October, 1915, which fell on the 30th day of that month; the last Sunday in October, 1915, being on the 31th day of the month. It is further urged in behalf of the plaintiffs that, if counsel for the defendant had at the trial interposed an objection to the introduction of the claim in evidence upon the ground that it had not been filed in time, the mistake could easily have been explained and corrected, and that by failing to raise the question at that time the point should be deemed to have been waived. In addition to the testimony of Carl Murray that the accident happened upon Sunday, the record discloses that Walter R. North also testified that the accident occurred on Sunday, and that the defendant immediately sent men to the scene of the accident and repaired the wires. It is perfectly plain from the statement of facts that a mistake was committed either in the date of the accident or in the day of the week on which it occurred. If plaintiffs received the injuries complained of on Sunday, October 31, 1915, the notice filed on November 30, 1915, was timely. The court will take judicial knowledge of the fact that the last Sunday in October, 1915, came on the 31st day of the month, and therefore that the accident could not have occurred on Sunday October 30, 1915. It is well settled in this state that a general objection to the introduction of evidence upon the ground that it is incompetent, irrelevant, and immaterial will not be sufficient to save the point on appeal, when such objection is not sufficiently definite and specific to call to the attention of the court the particular point sought to be raised. The purpose of requiring an objection to evidence is to give the court to understand the reason or ground upon which the proffered evidence should be rejected, so as to enable the court to intelligently pass upon the question, to the end that cases may be tried upon proper evidence and that new trials and reversals on appeal may be avoided. When an objection fails to accomplish this, it falls short of its purpose and of right should be construed to be no objection whatever. Seattle v. Hewetson, 164 P. 234; Evergreen Farm v. Attalia Land Co., 91 Wash. 192, 157 P. 487; State v. Spangler, 92 Wash. 636, 159 P. 810; Coleman v. Montgomery, 19 Wash. 610, 53 P. 1102; Liebenthal v. Price, 8 Wash. 206, 35 P. 1078.

We are of the opinion that adding the word 'insufficient' to the words 'incompetent, irrelevant, and immaterial,' did not in this instance tend in any way toward making the objection more specific. An objection to the claim upon the ground that it is insufficient is not reasonably calculated to call to the court's attention the fact that the point relied upon is that the claim had not been filed in time. Under the charter of the city of Seattle, the notice of claim is required to be in certain form and to contain certain specific information, and an objection that it is insufficient merely challenges the form or substance of the claim itself. The point that the claim had not been filed within the time fixed by the charter is in no manner suggested by such an objection. If counsel for the defendant intended to rely upon the point that the...