Nelson v. Dunkin

• Decision Date: 10 November 1966
• Docket Number: No. 37895,37895
• Citation: 419 P.2d 984,69 Wn.2d 726
• Court: Washington Supreme Court
• Parties: Lewis G. NELSON, by his Guardian Ad Litem, Daniel A. Nelson, and Daniel A. Nelson, individually, Appellants, v. Forrest S. DUNKIN, Administrator of the Estate of Alice A. Dunkin, deceased, Charles Ogmundson, Terry Smith and Michael Terry, Defendants, County of Whatcom, Respondent.

Page 726

69 Wn.2d 726

419 P.2d 984

Lewis G. NELSON, by his Guardian Ad Litem, Daniel A. Nelson and Daniel A. Nelson, individually, Appellants, v. Forrest S. DUNKIN, Administrator of the Estate of Alice A Dunkin, deceased, Charles Ogmundson, Terry Smith and Michael Terry, Defendants County of Whatcom, Respondent.

No. 37895.

Supreme Court of Washington, En Banc.

Nov. 10, 1966.

R. F. Atwood, Bellingham, for appellants.

Richard A. Nelle, Pros. Atty., Leslie A. Lee, Deputy Pros. Atty., Bellingham, for respondent.

HILL, Judge.

We are here concerned with the sufficiency of a claim for personal injuries filed against Whatcom County.

August 26, 1963, Patricia Lee Green was driving a Volkswagen in an easterly direction along Grandview Road, a Whatcom County arterial. Riding with her were her son (4 years old) and Lewis Gordon Nelson (6 years old).

At an intersection with the J. J. Bell Road, there was a collision between the Volkswagen and a 1950 Ford automobile being driven in a northerly direction by Alice A. Dunkin.

The drivers were both killed, and the two boys in the Volkswagen were seriously injured.

A claim was filed against Whatcom County by Daniel A. Nelson, as guardian ad litem, for damages resulting from the injuries sustained by his son Lewis.

The claimed negligence of the county was its failure to replace a 'YIELD Right-of-Way' sign facing northbound traffic on the J. J. Bell Road at its intersection with Grandview Road, after having been notified on August 23, 1963, that the sign had been knocked down.

The county rejected the claim, and an action was commenced thereon. On an application for summary judgment, the case against the county was dismissed because the claim filed did not meet the statutory requirements. Daniel A. Nelson, as guardian ad litem for Lewis Gordon Nelson, appeals, urging that there was a substantial compliance with the requirements of the statute.

The county-claims statute, RCW 36.45.020 (re-enacted in 1963), reads as follows:

All such claims for damages must locate and describe the defect which caused the injury, describe the injury, and contain the amount of damages claimed, together with a statement of the actual residence of the claimant at the time of presenting and filing the claim and for a period of six months immediately prior to the time the claim accrued and be sworn to by the claimant: Provided, That if the claimant is incapacitated from verifying and filing his claim for damages within the time prescribed, or if the claimant is 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 * * *.

There is no point to a lengthy recital of the details of the claim which was filed. It located and described the defect, which it alleged caused the injuries sustained by Lewis Gordon Nelson; It described the injuries in great detail, and it contained the Amount of the damages claimed in detail. However, the requirement of

a statement of the actual residence of the claimant at the time of presenting and filing the claim and for a period of six months immediately prior to the time the claim accrued * * * (Italics ours)

was not complied with, unless the statement

That the claimant and his son had been residents of the State of Alaska for a period of six months immediately preceding this accident

can be said to be a substantial compliance with the statute.

There was absolutely no attempt to state the actual residence of the claimant at the time the claim was presented and filed; the only effort to meet the further requirement of a statement of the actual residence for six months prior to the time the claim accrued was the above quoted statement to the effect that the claimant and his son had been residents of the State of Alaska for a period of 6 months immediately preceding the accident.

The purpose of the requirements, relative to residence, is to give the county an opportunity to investigate the claimant as well as his claimed injuries.

We agree with the trial court that the quoted reference to the State of Alaska cannot be regarded as a substantial compliance with a request for a statement as to the actual residence at the time of presenting the claim and for 6 months preceding the accrual of the claim. There was no attempt to give any meaningful information. We need not expatiate on the size of Alaska; for all practical purposes the claimant might just as well have said that they were residents of the planet Earth.

However, the very appealing argument is made that in this particular situation the county was not in any way prejudiced by not having this information. The boy, Lewis Gordon Nelson, was in a hospital in Whatcom County. The county coroner, and presumably the sheriff, had made a complete investigation of all facts relative to the collision; and the avenues of interrogatories and depositions were available, and the county had availed itself of the former.

The answer to this argument is that the information required is for the county's consideration of the claim. There can be no interrogatories and depositions until the county has rejected the claim and an action has been commenced. Further, the right to sue the state, a county, or other state- created governmental agency must be derived from statutory enactment; and it must be conceded that the state can establish the conditions which must be met before that right can be exercised.

When the state passed legislation waiving its governmental immunity as to tort claims (Laws of 1963, chapter 159, p. 752; RCW 4.92.010 et seq.), it required, as a prerequisite to suit against the state, the filing of a claim (RCW 4.92.110). It also stated what the claim should contain and, interestingly enough, it required inter alia:

(A) statement of the actual residence of the claimant at the time of presenting and filing the claim and for a period of six months immediately prior to the time the claim arose. * * * RCW 4.92.100

Such a requirement is not, as some argue, the archaic requirement of another day and generation to be disregarded in this day of interrogatories and depositions. It is the requirement of a forward-looking 1963 legislature that abolished the state's governmental immunity from tort liability, but required, as a condition thereof, that a claim be filed giving the state certain required information.

There can be no argument but that the filing of a claim in accordance with RCW 36.45.020 is a condition precedent to the maintenance of an action for damages against a county. In Caron v. Grays Harbor County (1943), 18 Wash.2d 397, 405, 139 P.2d 626, 629, 148 A.L.R. 626, we said:

It is definitely settled in this state that the filing of a claim in accordance with Rem.Rev.Stat., § 4077, is a condition precedent to the maintenance of an action for damages against a county. Old Nat. Bank v. Lewis County, 137 Wash. 436, 242 P. 961; Shaw Supply Co. v. King County, 169 Wash. 175, 13 P.2d 472; on rehearing, 172 Wash. 137, 20 P.2d 8; Holmquist v. Queen City Const. Co., 175 Wash. 681, 27 P.2d 1066; Boitano v. Snohomish County, 11 Wash.2d 664, 120 P.2d 490. As stated in the Shaw Supply Co. case, supra.:

'The statutes requiring claims to be presented to that board declare a rule of policy, and the courts are not at liberty to ignore it, even though they might be persuaded in a particular case that it was a useless ceremony.'

It is not enough that a claim be filed. While we have frequently said that statutory provisions respecting the presentation of a damage claim for torts against a municipal corporation are to be liberally, and not literally, construed, we have always proceeded upon the principle, regardless of the issue of prejudice, that there must be a substantial compliance. Caron v. Grays Harbor County, supra; Duschaine v. City of Everett, 5 Wash.2d 181, 105 P.2d 18, 130 A.L.R. 134 (1940); Sopchak v. City of Tacoma, 189 Wash. 518, 66 P.2d 302 (1937).

The issue is not, as appellant urges, 'was the county prejudiced by the claimant's defective notice'; but was there a substantial compliance with the statutory requirements of a claim, the filing of which was a condition precedent to the right to maintain the action against the county.

As Judge Steinert pointed out in his opinion in Caron, supra,

The inescapable logic of these rules, as just stated, when taken together, it that sbstantial compliance with the statute is a condition precedent to the maintenance of an action for damages against the municipality; or, expressed in another way, the filing of a claim which does not substantially comply with the statute has the same legal effect as a failure to file any...