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 1947-03

Forseth v. Tacoma , 27 Wash. 2d 284 ( 1947 )


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  • There is no "settled rule in this state that the filing of a claim in accordance with" the statute is a condition precedent to the maintenance of an action for damages against a municipal corporation (see Cook v. Yakima, 21 Wash. 2d 810, 817,153 P.2d 279, and subsequent opinions of this court).

    Respondent, city of Tacoma, should be held estopped to question the actions of its representative, the agent of the insurance company. Respondent was acting in a proprietary capacity while operating its bus line. We held in Strand v. State, 16 Wash. 2d 107, 132 P.2d 1011, that *Page 300 the doctrine of equitable estoppel applies to a municipal corporation when it is acting in its proprietary capacity. In some cases in which the municipal corporation acts in its governmental or sovereign capacity, the doctrine of equitable estoppel may be invoked. Bennett v. Grays Harbor County, 15 Wash. 2d 331, 130 P.2d 1041.

    The allegations of the complaint as set out in the majority opinion are sufficient to bring the case at bar within the rule of estoppel by misrepresentation, or equitable estoppel. Strandv. State, supra; 21 C.J. 1113.

    Caron v. Grays Harbor County, 18 Wash. 2d 397,139 P.2d 626, 148 A.L.R. 626, is distinguishable on the facts, a reading of that opinion will disclose, from the case at bar, which is within the spirit of the rule announced in Ames v. Department ofLabor Industries, 176 Wash. 509, 30 P.2d 239, 91 A.L.R. 1392.

    An infant, under the rule announced by the majority, is not afforded the protection of which we boast. Under the law declaredfor the present by this court, if a person were rendered unconscious by an accident and remained in a state of coma during the period in which a charter, ordinance, or statute required filing of claim as a condition precedent to maintenance of action for injury inflicted, such person's right of action would be barred. That is not sound in law or morals.

    The judgment should be reversed, with direction to the trial court to overrule the demurrer.

    SCHWELLENBACH and ABEL, JJ., concur with MILLARD, J.

    April 7, 1947. Petition for rehearing denied. *Page 301