Walters v. City of Tacoma

• Citation: 88 Wash. 394,153 P. 311
• Decision Date: 08 December 1915
• Docket Number: 12831.
• Parties: WALTERS v. CITY OF TACOMA.
• Court: Washington Supreme Court

153 P. 311

88 Wash. 394

WALTERS v. CITY OF TACOMA.

No. 12831.

Supreme Court of Washington

December 8, 1915

Department 1. Appeal from Superior Court, Pierce County; C. M Easterday, Judge.

Action by Roy Walters against the City of Tacoma. From a judgment for defendant, plaintiff appeals. Affirmed.

Thomas J. Wayne and Hiram E. Washburn, both of Tacoma, for appellant.

T. L Stiles and Frank M. Carnahan, both of Tacoma, for respondent.

MOUNT J.

Action for personal injuries. The trial court sustained a demurrer to the plaintiff's complaint and dismissed the action. The plaintiff has appealed.

It appears from the complaint that the plaintiff was injured upon one of the streets in the city of Tacoma. Within 30 days after the injury he filed a claim with the city describing the place where the injury occurred as 'on the north side of South Twenty-Fourth street, on the board sidewalk between Ferry and Sprague streets, in said city.' In the complaint he alleges that the place of the injury was 'on the north side of South Twenty-Fifth street, between Ferry and Sprague streets,' and, after alleging the character of the place, he alleges:

'Said claim being, through some inadvertence, but through no fault of his, erroneous as to the number of said street and naming the place as on South Twenty-Fourth street, when in fact no such street existed between Ferry and Sprague streets, in the defendant city, and the defendant city by its officers and agents having actual knowledge of this fact, and having actual knowledge on the following 26th day of September, 1914, of the plaintiff's injuries and of the time and exact place where they were received, and being apprised of all these facts, the defendant council rejected plaintiff's claim.'

The trial court sustained the demurrer to the complaint upon the ground that the notice filed with the city did not describe the place as required by the charter of the city of Tacoma. The charter of the city of Tacoma provides:

'All claims for injuries to the person, alleged to have been caused or sustained by reason of defects, want of repair or obstruction of any of the highways, streets, alleys, sidewalks or cross-walks of the city, shall be presented in writing to the council within thirty days after such injuries shall be alleged to have been received. Such writing shall state the time, place, cause, nature, and extent of the alleged injuries so far as practicable, and shall be verified by affidavit of the claimant to the effect that the same is true. The omission to present any such claim in the manner or within the time in this section provided, shall be a bar to an action against said city therefor.' Revised City Charter of Tacoma, § 215.

The appellant relies upon the case of Hammock v. Tacoma, 40 Wash. 539, 82 P. 893. In that case the notice of the claim stated that the injury occurred 'on South J street between South Forty-First and South Forty-Second streets, in the city of Tacoma.' The affidavit accompanying the notice stated the place to be 'upon the east side of J street, in the city of Tacoma, at a point about halfway between South Forty-Second and South Forty-First streets.' It appeared in that case that South Forty-Second street from N street to J street was not extended for a distance of four blocks, and that the next street from Forty-First street south on J street is Forty-Third street, so that the point where the injury actually occurred was about halfway between Forty-First street and Forty-Third street, instead of halfway between Forty-First street and Forty-Second street, as stated in the notice. In that case we said:

'This discrepancy was not sufficient to debar the plaintiff from her right of action.'

It will be noticed in that case that the place of injury was located and described upon J street, and we held that the notice was sufficient.

In the case of Ellis v. Seattle, 47 Wash. 578, 92 P. 431 the place was described as 'between Thomas and John streets on the west side of said Westlake avenue, on and near the west trackage of the Seattle Electric Company, and near No. 228 Westlake avenue, in the city of Seattle.' In that case it was stated that the accident occurred on the west side of the street, instead of on the east side, and we held that the description in the notice was sufficient, saying that, if the notice 'directs the attention of said officers with reasonable certainty to the place of the accident, the requirements of the notice have been...