Sprague v. City of Astoria

• Decision Date: 19 April 1921
• Citation: 195 P. 789,100 Or. 298
• Parties: SPRAGUE v. CITY OF ASTORIA.
• Court: Oregon Supreme Court

195 P. 789

100 Or. 298

SPRAGUE v. CITY OF ASTORIA.

Supreme Court of Oregon

April 19, 1921

Department 1.

Appeal from Circuit Court, Clatsop County; J. A. Eakin, Judge.

Action by Rowena Sprague against the City of Astoria. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

This is an appeal by Rowena Sprague, plaintiff, against City of Astoria, a municipal corporation, defendant and respondent from a judgment in favor of the defendant city.

The plaintiff instituted an action for damages in the circuit court of the state of Oregon in and for Clatsop county against the defendant, in which she undertook the recovery of $5,000 by reason of alleged injuries sustained by her. Among other things, the complaint alleges:

"That by section 129 of the municipal charter of defendant, city of Astoria, it is * * * provided as follows: 'No member of the common council shall in any manner be liable for any damages resulting from a defective condition of any street alley or highway thereof, and the city of Astoria shall in no case be liable for any alley or highway thereof, unless such persons claiming such damages shall, within 30 days from the time of the accident or injury, file with the auditor and police judge, under oath, a statement of his or her claim, stating the time and place of the accident or injury and the nature thereof, and the persons present, if any. * * *'

"That theretofore, to wit, on the 25th day of July, 1919, and before 30 days had elapsed after plaintiff received her said injuries as aforesaid, she duly filed with the auditor and police judge of defendant, city of Astoria, the following verified statement:

" 'State of Oregon, County of Clatsop--ss.: I, Rowena Sprague, being first duly sworn, depose and say that this affidavit is made in furtherance of a claim in the sum of $5,000, against the city of Astoria, a municipal corporation of the state of Oregon, for personal injuries received on account of a defect in Second street in the city of Astoria, Or., on or about the hour of 1:20 p. m on the 5th day of July, 1920. This affidavit is filed with the accompanying claim, both of which shall be considered together in accordance with the provisions of section 129 of the charter of the city of Astoria. Deponent further states that on said 5th day of July 1919, at the hour of 1:20 p. m., she was walking along Second street in said city on the west side thereof, near the right of way of the S. P. & S. Railway Company, and between the track of said company and the intersection of Astor street with said Second street, and without any warning whatever, because of the failure to provide a suitable place to walk in said street, and because, among other things, of the failure to properly fasten planks laid for walking thereon, she fell a distance of from 12 to 15 feet, severely bruising and injuring her scalp head, arm, and other parts of her body, and fracturing the internal malleolus of the ankle bones of the right foot; that she also fractured the lower third of the fibula of the right leg. Deponent further states that there was no other person immediately present at the time of the accident, but that there were several persons near by who witnessed the same and whose names are as follows, to wit: Norman Barber, Joe Barber, name of other witness unknown, Henry Sprague, Jr. Deponent because of the injuries aforesaid and on account of the negligence of the city of Astoria in the particulars mentioned, and in other respects, herewith submits her claim in said sum mentioned. [ Signed] Rowena Sprague.

" 'Subscribed and sworn to before me this 25th day of July, 1919. [ Signed] A. W. Norblad, Notary Public for Oregon. My commission expires 5/28/23.'

" 'Astoria, Oregon, July 25, 1919.

" 'City of Astoria to Rowena Sprague, Dr. To damages for injuries suffered on account of negligence of the city of Astoria, as per the statement contained in the accompanying affidavit, $5,000.00."'

The complaint sets forth that:

"The plaintiff was a strong and healthy woman of about 28 years of age, and in the full possession and control of her right foot and ankle; that on account of defendant's negligence, plaintiff sustained personal injuries to her right leg, was confined to her bed for about six weeks, and alleges the amount of these injuries and damages, * * * and demands recovery of $5,000."

The defendant filed a general demurrer, which was overruled by the court below.

In answering paragraph 11 of the complaint, the defendant "denies the same, except it admits that plaintiff filed an alleged and pretended claim with defendant, but alleges that such claim was insufficient, and did not comply with the charter provisions of said city."

During the course of the trial, the defendant raised a point that was not discussed upon argument of demurrer. Defendant's attorney objected to the admission of certain evidence upon the ground:

"That the complaint does not state facts sufficient to constitute a cause of action; upon the ground that no claim has been filed, because they have pleaded in here the character of claim that was filed, and I can raise that question now, and I think that will settle this case.

"The Court: Well, of course, if they have filed no claim, it [the evidence] would be immaterial.

"Defendant's Attorney: This is the claim: They claim to have filed an affidavit, in words and figures following: [Reads affidavit.] Now, you will notice, your honor, that this is an affidavit in the third person. * * *

"Plaintiff's Attorney: Your honor, I understand that the complaint is not sufficient because that she says 'she' did such things instead of 'I' did such things?

"The Court: Yes; that would go to the sufficiency of the complaint--that would be a material allegation. * * * That point was not raised on the demurrer. * * *

"The Court: * * * The objections to the evidence would be well taken, also on the ground that the complaint does not state grounds sufficient to constitute a cause of action."

An exception was duly noted to the ruling of the court in sustaining defendant's objection to the admission in evidence of the plaintiff's verified claim.

A. W. Norblad, of Astoria (Norblad & Hesse, of Astoria, on the brief), for appellant.

G. C. Fulton, of Astoria (Anderson & Setters and G. C. & A. C. Fulton, all of Astoria, on the brief), for respondent.

BROWN, J. (after stating the facts as above).

Has the plaintiff fulfilled the valid requirements of the provisions of section 129 of the municipal charter of the defendant by filing with the city a sufficient notice of her accident? The answer to that inquiry is decisive of this appeal.

A well-known authority on the law relating to municipal corporations has written that:

"When applicable, notice to the municipality in substantial compliance with the controlling law is usually held to be a condition precedent to the maintenance of the action." 8 McQuillin (Supp.) § 2714.

Section 129 of the charter of the city of Astoria is applicable and lawfully includes claims arising ex delicto, and does not conflict with the doctrine of this court laid down in Caviness v. City of Vale, 86 Or. 554, 169 P. 95; Colby v. City of Portland, 89 Or. 566, 174 P. 1159, 3 A. L. R. 819; West v. Marion County, 95 Or. 529, 188 P. 184.

Pursuant to the provisions of said section 129, Rowena Sprague was required, within 30 days from the time of the accident or injury, to file, under oath, a statement of her claim with the auditor and police judge, stating: (1) Time of the accident; (2) place of the accident; (3) the nature thereof; (4) the persons present.

From an examination of the statement of plaintiff's claim, we ascertain that she was injured about the hour of 1:20 p. m. on the 5th day of July, 1919. This complies with the first requisite. She describes the place of the accident by stating that when she was injured she was walking along Second street in said city, on the west side thereof, near the right of way of the S. P. & S. Railway Company, and between the track of said company and the intersection of Astor street with said Second street. She satisfies the third point by fully describing the nature of the injuries she sustained, and the fourth by giving the names of the persons present. The description of the place where the accident happened could and should have been more definite. Yet, under the rule of construction adopted by the courts we hold it to be sufficient, because it was a substantial compliance with the provisions of the charter. It does not appear that the city was ever misled by the failure of this description, or made any objection to its sufficiency, or that the officers were deceived in any way while making an investigation of the facts, or that they ever desired a more definite description of the place of accident. A substantial observance of the provisions of section 129 is all that the law requires.

The matter required to be set forth in the notice of accident and claim for damages is provided by statute or charter, as the case may be.

"Under these laws at least four points must be sufficiently covered: The time, place, circumstances of the occurrence and the character of the injury sustained. Other requirements are specified in some laws, as that the injured person will claim damages, and the amount thereof; the residence of the claimant at the date of the filing of the notice and for a named period prior thereto; and sometimes the names and addresses of claimant's witnesses. * * *

"The purpose of such provisions, as applied to a claim arising from a tort, is to enable the municipality to investigate both the claim and the claimant. * * * A reasonable compliance as to the contents of the notice considering the

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