Wolpers v. City of Spokane

• Decision Date: 17 January 1912
• Parties: WOLPERS v. CITY OF SPOKANE.
• Court: Washington Supreme Court

120 P. 113

66 Wash. 633

WOLPERS v. CITY OF SPOKANE.

Supreme Court of Washington

January 17, 1912

Department 2. Appeal from Superior Court, Spokane County; M. L Clifford, Judge.

Action by Joseph F. Wolpers against the City of Spokane. From a judgment of dismissal, plaintiff appeals. Reversed and remanded.

Roche &amp Onstine, for appellant.

Cannon Ferris, Swan & Lally and A. M. Craven, for respondent.

ELLIS J.

Action by the appellant against the respondent for damages because of personal injuries sustained by the appellant while in the employ of the city as a carpenter. It is alleged that while he was at work upon a false arch which the city had erected as a form for a concrete arch of a bridge which was in process of construction across the Spokane river at Monroe street, in Spokane, the false arch collapsed and fell, precipitating the appellant upon the rocks in the river below, permanently injuring him. The negligence alleged was carelessness in the construction of the false arch, failure to provide it with guy ropes, cables, braces, or supports, failure to employ competent engineers for the work, failure to examine and ascertain its lack of strength and stability, failure to furnish appellant a safe place to work, and negligently assuring him that the place was safe. The complaint alleged the presentation to the city council and the filing with the city clerk of a notice of claim for damages within the time and in the form and manner required by the city charter. A copy of the notice was made a part of the complaint as an exhibit. It fully conformed to the charter requirement.

At the trial the respondent objected to the taking of any testimony, upon the ground that the complaint did not state a cause of action, in that the notice of claim did not contain a statement of the residence of the claimant at the time it was filed, nor his residence for six months immediately prior to the time the claim accrued, as required by chapter 83 of the Laws of 1909. The court sustained the objection and dismissed the action.

The charter of the city of Spokane then in force, in section 220, subd. 1, omitting inapposite parts, provided as follows: '* * * All claims for damages for personal injuries or for injuries to property alleged to have been sustained by reason of the negligence of the city, or any officer, agent, servant or employé thereof, must be presented to the city council within one month after any such injuries shall have been received in the manner hereinafter in this section provided. * * * All claims for injuries to person or property, and all notices of such claims herein required, shall be in writing and shall state the time when and the place where such injuries were received and must also state the cause, nature and extent of the same, the amount of damage sustained thereby, and the amount for which the claimant will settle the same, and must be verified by his or her affidavit, in proper form, to be true; and the refusal or omission to present such claim and give notice where notice is required, in the manner and within the time in this section required shall be taken to be, and shall be, a waiver of any and all damages on account of such injuries and shall be a bar to any suit or action against the city to recover the same, or any part thereof. * * *'

Section 1, 2, and 3 of chapter 83, Laws 1909 (Rem. & Bal. Code, §§ 7995, 7996, 7997), read as follows:

'Section 1. That whenever a claim for damages sounding in tort against any city of the first class shall be presented to and filed with the city clerk or other proper officer of such city, in compliance with valid charter provisions of such city, such claim must contain, in addition to the valid requirements of such city charter relating thereto, a statement of the actual residence of the such claimant, by street and number, at the date of presenting and filing such claim; and also a statement of the actual residence of such claimant for six months immediately prior to the time such claim for damages accrued.

'Sec. 2. That nothing in this act shall be construed as in any wise modifying, limiting or repealing any valid provision of the charter of any such city relating to such claims for damages, but the provisions of this act shall be in addition to such charter provisions, and such claims for damages, in all other respects, shall conform to and comply with such charter provisions.

'Sec. 3. That compliance with the provisions of this act is hereby declared to be mandatory upon all such claimants presenting and filing any such claims for damages.'

The first section of the act of 1909 makes it manifest that the provisions of that law, as relating to cities of the first class, have no independent force. They can only be invoked by reference to the city charter, and as applying to claims prescribed and filed 'in compliance with valid charter provisions of such city.' That law does not extend the requirements of notice, either as contained in any city charter or as contained in the law itself, to other persons or other torts...