Puget Const. Co. v. Pierce County

• Citation: 64 Wn.2d 453,392 P.2d 227
• Decision Date: 14 May 1964
• Docket Number: No. 36989,36989
• Court: Washington Supreme Court
• Parties: PUGET CONSTRUCTION COMPANY, Appellant, v. PIERCE COUNTY, State of Washington, Respondent.

Page 453

64 Wn.2d 453

392 P.2d 227

PUGET CONSTRUCTION COMPANY, Appellant, v. PIERCE COUNTY, State of Washington, Respondent.

No. 36989.

Supreme Court of Washington.

May 14, 1964.

Lycette, Diamond & Sylvester, Lyle L. Iversen, Seattle, for appellant.

John G. McCutcheon, Pros. Atty., Keith D. McGoffin, Steele & McGoffin, Tacoma, for respondent.

HALE, Judge.

Does the statute requiring that all claims for damages against a county (RCW 36.45.010-36.45.020) be filed within 90 days of accural apply to a claim arising out of a contract to build a bridge, or is it limited to claims arising out of torts?

Appellant construction company, April 28, 1960, won the contract to demolish and remove the Fifth Street bridge across the Puyallup River and to build a new one at the same site. It finished the job on October 2, 1961, and the Board of County Commissioners for Pierce County formally accepted the new bridge. More than 7 months after this acceptance, on May 17, 1962, the appellant, by its attorneys, mailed a letter to the Board of County Commissioners presenting three claims arising out of the contract and one in eminent domain. The letter had no verification, did not set forth appellant's address, and was not filed with the Board. May 28, 1962, the county, by formal resolution No. 8985, denied the claim on the ground that the letter did not meet the requisites of a claim as prescribed by RCW 36.45.020, as to verification, identification of the claimant's address and filing, and upon the stronger ground that it had been neither presented nor filed within 90 days from the date that the damage occurred or the injury sustained as prescribed by RCW 36.45.010.

Appellant then brought this action on June 14, 1962, alleging four separate causes of action:

(1) That the county, by denying appellant the right to construct the approaches during pier construction, changed and interfered with the conditions in which the work was to be performed, making the performance more costly;

(2) That appellant encountered subsurface riprap conditions unknown to and unanticipated by either party which increased the cost of construction substantially and would, under the contract, entitle appellant the additional costs as compensable extras;

(3) That the county violated its implied agreement to commit no acts interfering with appellant's performance, when in clearing brush at places upstream it dumped floating debris and brush into the river in such a manner that this material moved down river against appellant's falsework, destroying it; and

(4) And, as an alternative to the third cause of action, that the dumping of brush and debris into the river upstream, so as to destroy appellant's falsework at the bridge site, constituted a taking and damaging without compensation in eminent domain in violation of Art. 1 § 16, Washington State Constitution.

From a judgment dismissing all four causes of action, following motions for both summary judgment and judgment on the pleadings, comes this appeal.

Appellant says that its first two causes of action, i. e., claims for alleged interference with its performance of the contract and the encountering of unanticipated substrata obstacles, arose out of the contract to demolish the old and build the new bridge. Hence, says appellant, the first two causes of action arose ex contractu and do not fall within the interdictory provision of the nonclaim statutes affecting counties. The statutory provisions, claimed by respondent as a barrier to the action, read:

'All claims for damages against any county must be presented before the board of county commissioners and filed with the clerk thereof within ninety days from the date that the damage occurred or the injury was sustained.' RCW 36.45.010. $Form and contents of the claims described in the foregoing section are set forth in RCW 36.45.020:

'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, or in case the claim is for damages to real or personal property, and the owner of the property is a nonresident of the county or is absent therefrom during the time within which a claim for damages is required to be filed, the claim may be verified and presented on behalf of the claimant be any relative or attorney or agent representing the injured person or, in case of damages to property, representing the owner thereof.'

Appellant urges that these statutes have no application to claims arising ex contractu and points to the language of RCW 36.45.020 as requiring information peculiarly appropriate to tort claims and not prescribing information normally thought pertinent to a claim arising from contract.

Plaintiff relies heavily upon our decision in Byram v. Thurston County, 141 Wash. 28, 251 P. 103, 252 P. 943 (1926), which says, inter alia, that only those cases sounding is tort and giving rise to actions for damages are contemplated by the above statute. But Byram, while giving a measure of comfort to plaintiff, does not support its position. Byram brought suit to recover from the county taxes illegally assessed, paid under protest, and wrongfully kept. This court did not see the action as arising either ex contractu or ex delicto or as an action for damages, but rather one to restore money illegally obtained by an agency of government. Labeling the action does not reveal its real nature. As we said:

'* * * Such funds are 'moneys got through imposition,' and the obligation to do justice rests upon all persons, natural or artificial, and, if the county obtains money or property from others without authority of law, [the law] independent of any statute, compels restitution or compensation.'

We think this language in the opinion makes obiter dicta of the statement that only claims sounding in tort are included in the nonclaim statute at issue here.

And we reach the conclusion that our statement in Corwin Inv. Co. v. White, 166 Wash. 195, 6 P.2d 607 (1932), cited by appellant, that an action against a county to recover void taxes arises upon an implied unwritten contract and, therefore, comes within the 3-year statute of limitations, does not affect the statute prescribing the filing of claims for damages. We assume, in the absence of statutory procedure, that suits to recover taxes collected illegally or under a void law are sui generis and that these tax suits give us no rule of decision as to the meaning of the statutes referring to 'all claims for damages.'

Similarly, claims made for wages fixed by resolution of the county commissioners but paid in lesser amounts than the schedule called for were held not to be claims for damages within the requirements of Rem.Rev.Stat. § 4077, in Rudnick v. Pierce County, 185 Wash. 289, 54 P.2d 409 (1936), a decision which appears logical in the light of Byram v. Thurston County, supra. This view we confirmed later in State ex rel. Ross v. King County, 191 Wash. 340, 71 P.2d 370 (1937), when we held that mandamus would lie to compel payment in accordance with the rates fixed by the county budget. The real nature of the remedy in these two instances is not in tort or contract for damages but rather to compel compliance with a valid legislative enactment, binding upon government and individual alike. Key to the problem is the meaning of damages.

The word damages as employed in the statute means the sum of money which the law imposes or awards as compensation, or recompense, or in satisfaction for an injury done, or a wrong sustained as a consequence, either of a breach of a contractual obligation or a tortious act or omission. 15 Am.Jur., Damages § 2. This meaning makes good sense when considered in connection with the requirements of a claim as prescribed in RCW 36.45.020, because in many instances it is virtually impossible to distinguish between a claim ex contractu and one ex delicto and the information sought is equally important in either case.

By way of illustration, when a county operates a parking lot in connection with a park and charges a fee for its use, it has both a contractual duty to its patrons to maintain the lot and is liable in tort for its failure to keep the premises in a reasonably safe condition. The same contractual obligations, seemingly identical with duties imposed under the law of torts, arise in the operation of county hospitals and sanitariums, or in the sale and distribution of water and electricity. Where a breach of such duty is claimed, the information required to be furnished by a claimant as a prelude to legal action seems as valuable to the county and quite as appropriate to the occasion in contract as in tort.

In the instant case, except possibly for the requirement that the residence and address for the past 6 months be set forth, the county would have the same need for early investigation of claims in the first two causes of action said to arise out of a contract as it would had they sounded solely in tort. Many decisions of this court recognize the logic of this statement, and we refer to them now.

Although a careful study of the case law in this jurisdiction shows the precedents to be in conflict and to a substantial degree irreconcilable because obiter dicta in one case has been adopted as the rationale of another, we can discern a consistent thread of policy running through the cases. The early case of Hoexter v. Judson, 21 Wash. 646, 59 P. 498 (1899), arose from a payment under protest to Pierce County of a tax lien filed upon goods sold to plaintiff. Plaintiff asserted that his vendor...