Cook v. Yakima , 21 Wash. 2d 810 ( 1944 )

In the case at bar, Mrs. Cook died as the result of injuries alleged to have been sustained by her November 28, 1942. The claim for damages in the case at bar accrued November 28, 1942.

The statute (Rem. Rev. Stat., § 9478 [P.C. § 703]), compliance with the provisions of which is made mandatory by Rem. Rev. Stat., § 9480 [P.C. § 704a] — this section we have written out of the statute — requires, as does the city charter of Yakima, that, in a claim of the character involved herein, the claimant must incorporate into and make a part of the written claim filed by the claimant a statement of the actual residence of such claimant by street and number at the date of presenting and filing such claim; and, also, there must be made a part of the written claim a statement informing the municipal corporation what was the actual residence of the claimant for six months immediately prior to the time such claim for damages accrued.

Under the statutory and charter provisions, it was incumbent upon appellant to state in the claim filed by him his actual residence for six months immediately prior to November 28, 1942. This, appellant did not do. The claim filed by him recites that, for a period of more than six months prior to date of filing claim (December 24, 1942), claimant and his wife resided at 1107 Willow street in the city of Yakima. Where he and/or his wife resided six months prior to November 28, 1942, the date the claim accrued, the claim filed by appellant does not disclose.

In Sopchak v. Tacoma, 189 Wash. 518, 66 P.2d 302, we held that, where the claim does not state the actual residence of the claimant by street and number for six months immediately prior to the time such claim for damages accrued (appellant failed to make such statement in the claim filed in the case at bar), as required by the statute and city charter, the claim is defective; and, not having satisfied the charter and statutory conditions precedent to such right, claimant could not maintain an action to recover for the injuries sustained.

In Sopchak v. Tacoma, supra, the claimant stated that he had resided in Tacoma at a certain street and that he had resided in the city of Tacoma thirty-one years. It is true that there was no language in the claim stating the claimant's residence by street and number during the six-month period immediately preceding the time his claim for damages accrued. In the case at bar, the claimant stated his place of residence for six months preceding the time he filed his claim, but he did not state his place of residence six months prior to the time the claim for damages accrued.

In Duschaine v. Everett, 5 Wash. 2d 181, 105 P.2d 18, under the provisions of Rem. Rev. Stat., § 9478, and a provision of the city charter of Everett, which require, as in the case at bar and as in the case of Sopchak v. Tacoma, supra, that a statement in the claim be made not only of the actual residence of the claimant by street and number at the date of presenting and filing his claim, but also a statement of the actual residence of the claimant six months immediately prior to the date the claim for damages accrued, we attempted to distinguishSopchak v. Tacoma, supra. If we did anything, we overruledSopchak v. Tacoma, supra.

In Duschaine v. Everett, supra, the claim stated that the claimant was a resident of the city of Everett, Washington, and resided at 1510 Chestnut street and prior thereto resided at route 1, Marysville, Washington. We cited our prior opinions affirming the imperative declaration of Rem. Rev. Stat., § 9480, and holding that the requirements of Rem. Rev. Stat., § 9478, and of city charters relating to the presentation of claims, are mandatory, and demanded compliance therewith as a condition precedent to the bringing or maintenance of an action. We also cited other opinions of this court that the statutory and charter provisions respecting the presentation of claims should be construed liberally. We then stated:

"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."

The opinions, in my judgment, in Sopchak v. Tacoma, supra, and Duschaine v. Everett, supra, are irreconcilable. The question presented in the two cases was whether the claim gave the residence of the claimant by street and number for six months immediately prior to the date such claim for damages accrued. Neither in Sopchak v. Tacoma, supra, where we followed Rem. Rev. Stat., § 9480, and upheld the charter and statutory provisions respecting the presentation of claims, nor inDuschaine v. Everett, supra, where we invoked the rule of liberal construction and wrote out of the charter and statute the mandatory provisions, did the claimant state the place of his residence by street and number for six months immediately prior to the date the claim for damages accrued. Which opinion shall we follow in the case at bar in which the claimant does not give his residence by street and number for six months immediately prior to the date the claim for damages accrued?

Our reason for holding as we did in Duschaine v. Everett,supra, was that any bona fide effort on the part of the city to avail itself of the notice by making an investigation, would disclose whether the claimant actually resided at the given address for the required six-month period, and that the claim filed enabled the city to make such an investigation and to

". . . reap every benefit of a valid notice or to take advantage of any discovered fact that would render the notice invalid because of its noncompliance with the statute and charter provisions."

We distinguished the Sopchak case on the ground that the claim in that case failed, as in the case at bar, to state claimant's residence by street and number during the six-month period immediately prior to the time the claim for damages accrued.

The reason given by this court for its opinion in Duschaine v.Everett, supra, required the overruling of Sopchak v. Tacoma,supra, and, if we cared aught for consistency and had regard for legal stability, required reversal of the judgment in Johnson v.Seattle, 9 Wash. 2d 231, 114 P.2d 972, wherein our settled tendency to distinguish instead of overrule our prior opinions, in conflict with our then present view, is illustrated by our attempted distinguishing of Duschaine v. Everett, supra, which, in principle, is indistinguishable from Johnson v. Seattle, supra.

In Johnson v. Seattle, supra, we held that a claim against a city for personal injuries resulting from an accident caused by a negligent accumulation of rocks and pebbles upon a public street, is insufficient, within a charter provision requiring that all such claims must accurately locate and describe the defect that caused the injury, where the claim describes the accident as having taken place on Highland Drive near the intersection of Holden, Hanford, and Othello streets, whereas, in fact, that location was a nonexistent place, the accident having occurred on Highland Park Way near west Othello street. The author of the opinion in Duschaine v. Everett, supra, was consistent; that judge signed the dissenting opinion in Johnson v. Seattle,supra.

In Johnson v. Seattle, supra, the street was erroneously described as Highland drive when its true name was Highland Park way. The description of the street disclosed that it was 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 was 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 of Seattle could have been 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 was only one of the streets, described in the claim, which intersected Highland Park way. Another street named in the claim, Holden street, sufficiently apprised the city's representatives of the site of the accident. There was no street, other than Highland Park way, in the city of Seattle with the name Highland anywhere in the name of the street which was intersected by two streets of the same names as Othello street and Holden street. Other physical characteristics of the street were recited in the claim which could not apply to any other street; hence, the city could not complain that it was misled.

In Johnson v. Seattle, supra, the claimant gave to the city such notice as to enable the city to investigate the cause and character of the injury. There was a good faith attempt to comply with the requirement relating to presentation of the claim. If we had followed the letter and the spirit of the opinion inDuschaine v. Everett, supra, the claim filed in Johnson v.Seattle, supra, would have been held to have accomplished its purpose of notice and that it was sufficient, though defective in some particulars.

In MacVeigh v. Division of Unemployment Compensation, 19 Wash. 2d 383, 142 P.2d 900, we held that, under the unemployment compensation statute which by legislative mandate is required to be liberally construed, the section of that statute governing appeals of a claimant from the ruling of the unemployment compensation division to the superior court, must be strictly construed, and that the superior court obtains no jurisdiction to review an order of the unemployment compensation division unless the steps prescribed by the statute are followed.

Duschaine v. Everett, supra, overruled Sopchak v. Tacoma,supra. Johnson v. Seattle, supra, overruled Duschaine v.Everett, supra, and revivified Sopchak v. Tacoma, supra. The majority opinion in the case at bar restores to life Duschainev. Everett, supra, and overrules Johnson v. Seattle, supra, and Sopchak v. Tacoma, supra.

By statute and rule an appeal must be taken within a specified period of time subsequent to final disposition of a case. It would be a substantial compliance with the rule and statute if the appeal were taken a day or so prior to commencement of the period or if taken a day or so subsequent to expiration of the period. Nevertheless, in the first instance we have held that the appeal should be dismissed because premature. In the second instance we have held that the appeal must be dismissed because too late. If a statement of facts in a civil action is filed one or two days after expiration of the ninety-day period prescribed by rule and statute, we haveconsistently held that such substantial compliance is not sufficient to prevent striking of the statement of facts and affirmance of the judgment.

We have sent criminals to prison for life and have also sent men to the gallows for failure to file statement of facts within the time prescribed by rule and statute. Tardiness of a few days, we have held, is not a sufficient compliance with the rule and statute to permit review of an appeal when a man's liberty and life are in jeopardy.

Recently a motion to dismiss an appeal, because record was filed a few days late, from conviction for accepting earnings of a prostitute, was granted. When petition for rehearing was filed, we refrained from acting thereon until we amended the rule to grant more time, then reversed our position and denied the motion to dismiss the appeal. In an attempt to observe the rule, we altered the rule after its breach and then held there had been a compliance with the rule, as amended.

The charter and statute prescribe the time to be stated in the claim. A statement of less than that period is no more a substantial compliance with the charter and statute than were the instances recited above which did not constitute such substantial compliance with the statute and rule as to justify disregard of mandatory rule.

That we are not like the House of Lords, committed to a doctrine of disability at self-correction, is demonstrated by our record from 1854 to 1942, in which period we challenged and/or overruled not less than six hundred of our opinions. From 1937 to 1942, inclusive (a period of six years), we challenged and/or overruled 142 opinions or twenty-three and one-half per centum of the total of six hundred for eighty-nine years. We deserve criticism in that we too often overrule sub silentio, or attempt to distinguish when there is no distinction. When we indulge in self-correction, I am of the opinion that it is wiser to overrule outright rather than to evade, as is often done by an attempt to distinguish where distinction there is none.

In Barton v. Seattle, 114 Wash. 331, 194 P. 961 — almost twenty-four years ago — we said:

"To hold that it was not necessary to comply with the six months' provision of the statute would require a holding that it is not necessary to comply with any provisions of the statute with reference to residence and, following this line of reasoning, we would soon entirely wipe out the statute. We have heretofore held that the provisions of the statute requiring the notice to give the residence, both at the time of filing the claim and for six months prior thereto, were reasonable. Collinsv. Spokane, supra [64 Wash. 153, 116 P. 663, 35 L.R.A. (N.S.) 840]. If the requirement is reasonable, then it must be complied with, because the statute commands that it be complied with."

How long should a court halt between the desire to help a litigant and the duty to maintain a government of laws and not of men? Is it not possible for this court to write an opinion which bench and bar may accept as the announcement of a legal principle which we may respect in the future? Should we not strive to prevent adjudications of this tribunal from being brought, as stated in dissenting opinion in Smith v. Allwright,321 U.S. 649, 88 L. Ed. 701, 64 S. Ct. 757, which overruled Grovey v.Townsend, 295 U.S. 45, 79 L. Ed. 1292, 55 S. Ct. 622, 97 A.L.R. 680, into the same class as "a restricted railroad ticket, good for this day and train only?"

Some argue that "the human element" is a factor which must be taken into consideration when analyzing opinions of the courts, doubtless meaning that a change of personnel will result in the court's shifting its position. In other words, the rule of legal stability is a myth and the bar must be content to practice the legal profession in terms of conjecture or surmise. To those who subscribe to change of legal principles with change of judicial personnel, truth is the belief which is held by the preponderant majority and "the best test of truth is the power of the thought to get itself accepted in the competition of the market, . . ." Dissenting opinion of Mr. Justice Holmes in Abrams v. United States, 250 U.S. 616,63 L. Ed. 1173, 40 S. Ct. 17.

If we apply the foregoing to scientific truth, for countless centuries the earth was flat, because the great majority of the people so believed, but subsequent to 1492 the earth became round or spherical, because a majority of the people were convinced of that truth by the trip of Columbus to San Salvador.

The judgment should be affirmed; if not, we should overruleJohnson v. Seattle, supra, Sopchak v. Tacoma, supra, and all other opinions of this court in which we held that compliance with mandatory provisions of rules and statute is a condition precedent to the bringing or maintenance of an action. Let us inform the bench and bar which rule we might follow when the question is next presented for review.

SIMPSON, C.J., concurs with MILLARD, J.