Ransom v. City of South Bend

• Decision Date: 22 November 1913
• Citation: 136 P. 365,76 Wash. 396
• Parties: RANSOM v. CITY OF SOUTH BEND.
• Court: Washington Supreme Court

136 P. 365

76 Wash. 396

RANSOM v. CITY OF SOUTH BEND.

Supreme Court of Washington

November 22, 1913

Department 1. Appeal from Superior Court, Pacific County; A. E. Rice Judge.

Action by Bertha Ransom against the City of South Bend. Judgment for defendant, and plaintiff appeals. Affirmed.

Corliss & Skulason, of Portland, Or., for appellant.

Fred M Bond and Welsh & Welsh, all of South Bend, for respondent.

GOSE J.

The plaintiff seeks to recover damages for personal injuries resulting from a fall upon a sidewalk upon one of the streets of the defendant, a city of the third class. She alleges that she sustained the injury in consequence of the defendant's negligence in this: That it permitted an obstruction, consisting of a timber two inches by four inches and about six feet in length, nailed diagonally to the sidewalk, to remain upon the walk for more than a week prior to the date of her injury, without having provided a barrier light, or other warning to indicate the presence of the danger. She sustained the injury on the 3d day of January 1910. She presented her claim to the city council, and filed it with the city clerk of the defendant city on the 16th day of March following, 73 days after the accident happened. She alleges that she was confined to her bed 'almost continuously for several months, and was so crippled and disabled, both mentally and physically, and suffered such intense pain, that she was wholly unable to attend to the business of having said claim filed and presented' within 30 days after the injury, or until the date of its presentation. After the jury had been impaneled and sworn, and after counsel for the plaintiff had made his opening statement and introduced his first witness, counsel for the city objected to the introduction of any evidence: (1) Because the complaint does not state facts sufficient to constitute a cause of action; and (2) because of the failure of the plaintiff to present her claim within the time prescribed by statute. The court sustained the objection, but gave the plaintiff the privilege of amending her complaint. This she declined to do, whereupon a judgment was entered dismissing the action.

Our statute (Rem. & Bal. Code, § 7998) provides that: 'All claims for damages against any city or town of the second, third or fourth class must be presented to the city or town council and filed with the city or town clerk within thirty days after the time when such claim for damages accrued. * * *' We have held that the 30-day limitation in this statute is mandatory; that the statute is clear, definite, and precise in its terms; that a compliance with its provisions is 'a condition precedent to the bringing of the action'; and that the giving of the notice 'in substantial compliance with the statute must be alleged and proven.' Collins v. Spokane, 64 Wash. 153, 116 P. 663, 35 L. R. A. (N. S.) 840; Wolpers v. Spokane, 66 Wash. 633, 120 P. 113; Benson v. Hoquiam, 67 Wash. 90, 121 P. 58. We have also held that physical or mental incapacity, running through the entire period fixed by a city charter for presenting claims against the city, excuses a compliance with the charter. Born v. Spokane, 27 Wash. 719, 68 P. 386; Ehrhardt v. Seattle, 33 Wash. 664, 74 P. 827. The appellant invites us to apply this rule of interpretation to the statute. This we cannot do without trenching upon powers vested exclusively in a co-ordinate branch of the state government. When the lawmaking branch of the government has spoken, the courts may interpret, but cannot add to or take from the clear and unambiguous meaning of the law. To do so would be legislation rather than interpretation. The policy, expediency, and wisdom of a statute are legislative and not judicial questions. Point Roberts Fish Co. v. George & Barker Co., 28 Wash. 200, 68 P. 438.

In State v. Carey, 4 Wash. 424, 30 P. 729, addressing itself to this question, the court said: 'Yet, conceding the right of the Legislature to legislate upon the subject, the wisdom of the act, its reasonableness or unreasonableness is a question for legislative discretion, and not for judicial determination. Judge Cooley says, in his work on Constitutional Limitations (5th Ed.) p. 201: 'The judiciary can only arrest the execution of a statute when it conflicts with the Constitution. It cannot run a race of opinions upon points of right, reason, and expediency with the lawmaking power.''

Courts of other jurisdictions have construed similar statutes varying slightly in phraseology, in harmony with our construction of this statute. Schmidt v. Fremont, 70 Neb. 577, 97 N.W. 830; Ellis v. Kearney, 80 Neb. 51, 113 N.W. 803; McCollum v. South Omaha, 84 Neb. 413, 121 N.W. 438; Touhey v. Decatur, 175 Ind. 98, 93 N.E. 540, 32 L. R. A. (N. S.) 350; Huntington v. Calais, 105 Me. 144, 73 A. 829; Daniels v. Racine, 98 Wis. 649, 74 N.W. 553; Hay v. Baraboo, 127 Wis. 1, 105 N.W. 654, 3 L. R. A. (N. S.) 84, 115 Am. St. Rep. 977; Crocker v. Hartford, 66 Conn. 387, 34 A. 98; Ft. Worth v. Shero, 16 Tex.Civ.App. 487, 41 S.W. 704; Trost v. Casselton, 8 N. D. 534, 79 N.W. 1071; Gribben v. Franklin, 175 Ind. 500, 94 N.E. 757. In the Schmidt, McCollum, and Ellis Cases it was held that incapacity, caused by the injury which formed the basis of the suit, did not excuse a failure to give the notice within the time prescribed by the statute. In Davidson v. Muskegon, 111 Mich. 454, 69 N.W. 670, and Winter v. Niagara Falls, 190 N.Y. 198, 82 N.E. 1101, 123 Am. St. Rep. 540, 13 Ann. Cas. 486, the same rule was applied to infants. In Morgan v....