Benson v. City of Hoquiam

Chadwick, J. Plaintilf claims to have been injured as the result of the negligence of the defendant, a municipal corporation. Within the time limited by law and ordinance, he presented his claim in form following: “You are hereby notified that on the 13th of September, 1910, at about the hour of 8:30 o’clock in the evening of [91] said day, at the corner of the intersection between ‘E? street and Emerson avenue in the city of Hoquiam, I received an injury through and by reason of falling or being thrown to the street — a portion of the planking having been removed, leaving an opening in said street through the carelessness and neglect of the officers, agents and employees of the city of Hoquiam; that there was no light placed at said opening in the street nor was there any protection placed around the opening in said street nor warning of a dangerous place being given in any way; that I claim and demand as damages against the city of Hoquiam, for such injuries the sum of $5,000, and I herewith make demand for settlement in said sum.” This was presented to the city council, and by it referred to the city attorney. No action having been taken within sixty days, this action was begun. After the time for filing had run, plaintiff went to the city clerk’s office and attached an affidavit or verification, in which the requirements of the act of 1909, p. 627 (Rem. & Bal. Code, § 7998), were set out. , It is earnestly argued that the claim notice is sufficient under many decisions of this court, and this may be true; but after these decisions were pronounced, and presumably to change the rule of law announced therein, the legislature provided by a general law that a sufficient claim must be filed within thirty days, and that all such claims shall set forth specifically the things which we had for the most part held unnecessary in the decisions relied on. In the case of Wolpers v. Spokane, 66 Wash. 633, 120 Pac. 113, a demurrer was sustained because the claim was insufficient, and although we reversed the case because we were unwilling to hold that either the law of 1909 or the charter provisions of the city applied to employees, we nevertheless held, having in mind the history of the act of 1909, that “the statute is mandatory.” In Collins v. Spokane, 64 Wash. 153, 116 Pac. 663, it was likewise contended that a notice omitting some of the statutory requirements would sustain an action, under the authority of the case of Hase v. [92] Seattle, 51 Wash. 174, 98 Pac. 370, 20 L. R. A. (N. S.) 938, and kindred cases. The court refused to extend the doctrine of that case, saying: “We think the better rule is that a statute of this character is mandatory, and that a compliance with its provisions is a condition precedent to the bringing of the action.” The further distinction was pointed out by Judge Parker in his concurring opinion, where, although subscribing to the doctrine of the Hase case, he says: “I regard the real distinction ... to be that the requirement for filing the claim here involved is found in a state law;” while, as he clearly shows, the former cases proceeded upon the theory that a city could'not limit its liability by a charter provision. Plaintiff further pleads the fact that he is a resident and property owner in Hoquiam, and that he had notified the police officers and the officers of the city of his injury. This does not meet either the letter or the intendment of the law. Cole v. Seattle, 64 Wash. 1, 116 Pac. 257. Judgment affirmed. Parke», Crow, and Gose, JJ., concur.