Johnson v. Seattle , 9 Wash. 2d 231 ( 1941 )

In the claim made by the appellant, the place where the accident happened is described as follows:

"That as above alleged Highland Drive is a regularly dedicated and used public street in the City of Seattle; that the same is hard-surfaced for approximately eighteen to twenty feet wide with a gravel shoulder of approximately the same width on the east side of said pavement; that said highway runs from north to south in an ascending grade; that at the intersection of Holden Street, or within a few yards thereof, with the said Highland Drive, there has been under construction for some months prior to the accident a WPA project, which project is in the nature of sewer construction, tunnelling under said pavement of Highland Drive; that rocks, pebbles and a large amount of gravel have been thrown out of said ditch and tunnel and have been allowed by the city to roll down and cover said pavement; that gravel, rocks and small boulders of different sizes have been allowed by the city to be brought in and dumped on the gravel shoulder of said street, and that rocks, boulders and pebbles from said shoulder have been allowed to accumulate on said pavement; that for the last four (4) months this aggregation of pebbles, rocks, gravel and boulders has been allowed to accumulate on the paved portion of said Highland Drive, extending from Hanford Street north and down the hill past Othello Street; that said condition has been dangerous to the life and limb of both the users of the highway and motor cars and pedestrians walking along the side of the highway and the stores and homes bordering said highway; that the said City of Seattle, a municipal corporation, has had knowledge of said condition, or should have had knowledge of said dangerous condition of said highway, but has refused and neglected to sweep said rocks, pebbles and boulders from said highway; that as a result of the failure of the city to maintain said street, to-wit: Highland Drive, safely and keep the same in a reasonably safe condition, that passing automobiles throw rocks and pebbles into and through the windshields and doors of passing cars, and against the buildings bordering said highway, and also against pedestrians walking along the edges of said highway."

The street is erroneously described as Highland drive when its true name is Highland Park way. The description of the street shows that it is hard-surfaced for a width of eighteen to twenty feet with a gravel shoulder of about the same width on the east side of the pavement; that the course of the highway is from north to south in an ascending grade; that, at the intersection of Holden street, or within a few yards of that intersection with Highland drive, there had been under construction for some months prior to the accident a WPA project; that the WPA project was in the nature of sewer construction, tunneling under the pavement; that rocks, pebbles and a large amount of gravel had been thrown out of the ditch and tunnel and had been permitted by the city to roll down and cover the pavement.

No representative of the city could be deceived by the description in the claim and no other location in the city of Seattle, other than the one where the accident occurred, would be picked by any representative of the city, although the street upon which the defect existed was named in the claim as Highland drive instead of Highland Park way, and west Othello street was named as one of the intersecting streets in the claim while the name is Othello street on the city map. Othello street is only one of the streets, described in the claim, which intersects Highland Park way. Another street named in the claim, Holden street, sufficiently apprises the city's representatives of the site of the accident. There is no street, other than Highland Park way, in the city of Seattle with the name Highland anywhere in the name of the street which is intersected by two streets of the same names as Othello street and Holden street.

Other physical characteristics of this street are recited in the claim which could not apply to any other street; hence, the city could not complain that it was misled.

In Duschaine v. Everett, 5 Wash. 2d 181, 105 P.2d 18, we cited opinions of this court in which we had held that the requirements of the statute and the valid requirements of city charters relating to the presentation of claims are mandatory and that compliance with such requirement is a condition precedent to the maintenance of an action on such claim. We stated, however, that we had as frequently and just as positively held that claims of the character involved in that case (which are of the same character as the claim in the case at bar), as well as statutory and charter provisions respecting their presentation, are to be construed liberally or with that liberality, at least, which is accorded to pleading.

"The rule consistently followed by this court is that literal compliance with legislative and charter provisions respecting the presentation of claims for tort against a municipality is not demanded; only substantial compliance is required. Frasier v.Cowlitz County, 67 Wash. 312, 121 P. 459; Decker v. Seattle,80 Wash. 137, 141 P. 338; Bane v. Seattle, 80 Wash. 141,141 P. 339; Wagner v. Seattle, 84 Wash. 275, 146 P. 621, Ann. Cas. 1916E, 720; Maggs v. Seattle, 86 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.

"The theory upon which this court has proceeded in adopting the rule of substantial compliance is aptly stated in Wagner v.Seattle, 84 Wash. 275, 146 P. 621, Ann. Cas. 1916E, 720, as follows:

"`The obvious purpose of these charter and statutory provisions is to insure such notice to the city as to enable it to investigate the cause and character of the injury, and where there is a bona fide attempt to comply with the law, and the notice filed actually accomplishes its purpose of notice, it is sufficient though defective in some particulars.'" Duschaine v. Everett, 5 Wash. 2d 181,105 P.2d 18.

In the case at bar, the appellant gave to respondent city such notice as enabled the city to investigate the cause and character of the injury. It is not disputed that there was a good faith attempt to comply with the requirement relating to presentation of a claim. It follows, if the letter and the spirit of the recent opinion of this court in Duschaine v. Everett, supra, are not to be disregarded, that the claim filed by appellant actually accomplished its purpose of notice; hence, it is sufficient, though defective in some particulars.

The judgment should be reversed and the cause remanded for trial on its merits.

STEINERT and DRIVER, JJ., concur with MILLARD, J.