Titus v. City of Montesano, 15186.

CourtUnited States State Supreme Court of Washington
Writing for the CourtFULLERTON, J.
Citation106 Wash. 608,181 P. 43
PartiesTITUS v. CITY OF MONTESANO.
Decision Date01 May 1919
Docket Number15186.

181 P. 43

106 Wash. 608

TITUS
v.
CITY OF MONTESANO.

No. 15186.

Supreme Court of Washington

May 1, 1919


Department 2.

Appeal from Superior Court, Grays Harbor County; W. O. Chapman, Judge.

Action by Dora C. Titus against the City of Montesano. Judgment for plaintiff, and defendant appeals. Affirmed. [181 P. 44]

[106 Wash. 609]O. M. Nelson, of Montesano, for appellant.

W. H. Abel, of Montesano, for respondent.

FULLERTON, J.

The respondent was injured by a fall upon the sidewalk of the appellant city. Within 30 days after receiving the injury, she prepared and filed with the city clerk a written claim for damages. No action having been taken thereon by the city council within 60 days following the presentation of the claim, the respondent brought the present action to recover for the damages suffered. After the service of the summons and complaint upon the city, it appeared, through its attorney, and moved the court to require the complaint to be made more definite and certain by setting forth therein whether the respondent had been permanently injured by the accident for which she sued, and 'for an order directing the plaintiff to submit to a medical examination for the purpose of determining the extent of her alleged injury and for the purpose of qualifying the witnesses of defendant to give testimony in said cause.' The motion was denied by the court, whereupon the city demurred generally to the complaint, which being overruled it answered putting in issue the material allegations[106 Wash. 610] of the complaint, and setting up affirmatively contributory negligence on the part of the respondent. Issue was joined on the affirmative plea in the answer, and a trial had to a jury, which resulted in a verdict and judgment in favor of the respondent for the sum of $975.

The appellant first assigns error on [181 P. 45] the ruling of the court denying its motion for a physical examination of the respondent. The statute relating to such examinations is found at section 1230-1 of the Code (Remington's). It provides that, on or before the trial of any action brought to recover damages for injury to the person, the court before whom such action is pending may from time to time, on application of any party therein, order and direct an examination of the person injured as to the injury complained of by a competent physician or physicians, surgeon or surgeons, in order to qualify the person or persons making the examination to testify in such cause as to the extent, nature, and probable duration of the injury complained of. This statute is not mandatory. It provides that the court 'may * * * order and direct' a physical examination, and leaves something to the discretion of the court. When the motion was made in this instance, no issue had been framed as to the extent of the respondent's injuries, and no showing as to the necessity for such an examination accompanied the motion. It was not the purpose of the statute to needlessly harass a litigant, and, unless it is shown that some necessity exists for the examination at the time the application is made, the appellate court cannot say it is an abuse of discretion to deny it.

The second assignment is that the court erred in overruling the demurrer to the complaint. The objection is to the claim which was referred to in the complaint[106 Wash. 611] and attached thereto as an exhibit. It is objected, first, that the claim does not accurately locate and describe the defect that caused the injury, or reasonably describe the injury. The notice locates the place of the injury as the east side of River street, Montesano, between Broad street and Spruce street, near the corner of Broad and River streets. It describes the defect as, 'Loose board * * * on sidewalk;' and the injury as, 'fracture of arch of foot.' We think this sufficiently definite. It would be hard to locate the place of the injury more definitely, unless actual measurements were taken, and we can hardly think the statute requires this.

As to the description of the defect, it is objected that a loose board on the sidewalk, forming no part of it, would answer the description, and it is asserted that such a defect would not create liability against the city. We cannot think this a proper interpretation of the language of the claim. The natural inference arising from the language used is that the defect was a loose board forming a part of the surface of the sidewalk, rather than a board in the condition supposed. But the statute requiring the presentation of claims for personal injuries as a condition precedent to a right of action, as we have said on other occasions, was not intended as a snare. It has a legitimate, not a meretricious, purpose. The purpose of the law, as we said in Born v. Spokane, 27 Wash. 719, 68 P. 386, 'is to protect the municipality from fraudulent claims, by enabling its officers not only to examine the locus in quo, to see if the city had been negligent, but to obtain witnesses and procure testimony, * * * and generally to investigate the demand while it is fresh and while evidence is obtainable, * * *' and further that 'a reasonable compliance with its terms is all [106 Wash. 612] that can be demanded.' The city could not have been misled by the description given in the notice before us. Had its officers examined the sidewalk at the place described, they could have ascertained whether the injury complained of was the...

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13 practice notes
  • Greenhow v. Whitehead's, Inc., 7317
    • United States
    • United States State Supreme Court of Idaho
    • 30 d1 Dezembro d1 1946
    ...McGovern v. Hope, 63 N.J.L. 76, 42 A. 830, Andrus v. Fomfara, 127 A. 788, 3 N.J.Misc. 261, and Washington, Titus v. City of Montesano, 106 Wash. 608, 181 P. 43. Oklahoma. Chicago, R. I. & P. Ry. Co. v. Hill, 36 Okl. 540, 129 P. 13, at page 15, 43 L.R.A.,N.S., 622; Atchison, T. & S. F. Ry. C......
  • Dunn v. Boise City, 4738
    • United States
    • United States State Supreme Court of Idaho
    • 27 d2 Dezembro d2 1927
    ...Denver v. Bradbury, 19 Colo. App. 441, 75 P. 1077; Ray v. City of Council Bluffs, 193 Iowa 620, 187 N.W. 447; Titus v. City of Montesano, 106 Wash. 608, 181 P. 43; King v. City of Spokane, supra.) This rule of liberal construction is so generally adopted that it may fairly be said to be uni......
  • Duschaine v. City of Everett, 28040.
    • United States
    • United States State Supreme Court of Washington
    • 20 d2 Agosto d2 1940
    ...Wash. 427, 150 P. 612; Murray v. Seattle, 96 Wash. 646, 165 P. 895; Richardson v. Seattle, 97 Wash. 521, 166 P. 1131; Titus v. Montesano, 106 Wash. 608, 181 P. 43; Eastwood v. Seattle, 169 Wash. 680, 14 P.2d 1116. [105 P.2d 20] The theory upon which this court has proceeded in adopting the ......
  • Colquhon v. City of Hoquiam, 17200.
    • United States
    • United States State Supreme Court of Washington
    • 12 d1 Junho d1 1922
    ...the provisions of the statute. Bell v. Spokane, 30 Wash. 509, 71 P. 31; Ellis v. Seattle, 47 Wash. 578, 92 P. 431; Titus v. Montesano, 106 Wash. 608, 181 P. 43. 2. The appellant argues for a nonsuit on the additional ground that the respondent's wife was guilty of contributory negligence. T......
  • Request a trial to view additional results
13 cases
  • Greenhow v. Whitehead's, Inc., 7317
    • United States
    • United States State Supreme Court of Idaho
    • 30 d1 Dezembro d1 1946
    ...McGovern v. Hope, 63 N.J.L. 76, 42 A. 830, Andrus v. Fomfara, 127 A. 788, 3 N.J.Misc. 261, and Washington, Titus v. City of Montesano, 106 Wash. 608, 181 P. 43. Oklahoma. Chicago, R. I. & P. Ry. Co. v. Hill, 36 Okl. 540, 129 P. 13, at page 15, 43 L.R.A.,N.S., 622; Atchison, T. & S. F. Ry. C......
  • Dunn v. Boise City, 4738
    • United States
    • United States State Supreme Court of Idaho
    • 27 d2 Dezembro d2 1927
    ...Denver v. Bradbury, 19 Colo. App. 441, 75 P. 1077; Ray v. City of Council Bluffs, 193 Iowa 620, 187 N.W. 447; Titus v. City of Montesano, 106 Wash. 608, 181 P. 43; King v. City of Spokane, supra.) This rule of liberal construction is so generally adopted that it may fairly be said to be uni......
  • Duschaine v. City of Everett, 28040.
    • United States
    • United States State Supreme Court of Washington
    • 20 d2 Agosto d2 1940
    ...Wash. 427, 150 P. 612; Murray v. Seattle, 96 Wash. 646, 165 P. 895; Richardson v. Seattle, 97 Wash. 521, 166 P. 1131; Titus v. Montesano, 106 Wash. 608, 181 P. 43; Eastwood v. Seattle, 169 Wash. 680, 14 P.2d 1116. [105 P.2d 20] The theory upon which this court has proceeded in adopting the ......
  • Colquhon v. City of Hoquiam, 17200.
    • United States
    • United States State Supreme Court of Washington
    • 12 d1 Junho d1 1922
    ...the provisions of the statute. Bell v. Spokane, 30 Wash. 509, 71 P. 31; Ellis v. Seattle, 47 Wash. 578, 92 P. 431; Titus v. Montesano, 106 Wash. 608, 181 P. 43. 2. The appellant argues for a nonsuit on the additional ground that the respondent's wife was guilty of contributory negligence. T......
  • Request a trial to view additional results

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