74 Wash. 662 | Wash. | 1913
On Rehearing.
— The court has reconsidered the question discussed in the original opinion, 69 Wash. 390, 125 Pac. 152.
In the petition for rehearing it is insisted that the case of Sheafe v. Seattle, 18 Wash. 298, 51 Pac. 385, is controlling. That case as well as the case of German-American Sav. Bank v. Spokane, 17 Wash. 315, 49 Pac. 542, 38 L. R. A. 259, was overruled in Jurey v. Seattle, 50 Wash. 272, 97 Pac. 107. In the Jurey case and in Postel v. Seattle, 41 Wash. 432, 83 Pac. 1025, the court refused to qualify the words of the charter, “all claims for damages.” Seattle Charter, art. 4, § 29.
Notwithstanding the able argument made to sustain the proposition that the charter was intended to and does apply to actions of tort only, we think that it would be an unwarranted departure from accepted rules of construction to so hold. Actions for damages may arise ex contractu as well as ex delicto, and the phrase “all claims for damages” is sufficiently comprehensive to include such claims, whatever their origin. There is a difference between an action on contract and a claim for damages arising out of a breach of a contract. In the instant case, the suit is not upon contract, but is im dependent of it. The test is, whether the proof of the contract and a breach thereof would make out a prima facie
It is said that the words “All such claims for damages must accurately locate and describe the defect that caused the injury, accurately describe the injury. . . .” indicate a purpose to limit the condition's there imposed to personal injury cases. This argument was met in the Post el case, where it is said :
“True, other portions of the section would seem to be more appropriate to claims of another character than this, but this cannot be held to do away with the general requirement. In presenting claims, the details provided by the charter provision need only be followed in so far as they are applicable to the particular claim, but the general provision requiring claims for damages to be presented is applicable to all claims, and can be followed in every instance.”
One question that was raised and not discussed at the former hearing is that, if it be held that it was necessary to file a claim, it was in fact filed. More than thirty days after the alleged damages had accrued, the city paid the amount due on the contract, and, as it is alleged, refused to pay the claim for damages. Within fifteen days thereafter, a claim for damages was filed. It is contended that the city did not suffer any loss or inconvenience by reason of the fact that no claim was filed, and that a claim should not properly b.e filed until the city had refused to pay damages for its breach of the contract. The fault with this reasoning is that the charter provides, in terms, that a claim must be filed within thirty days after the damages have accrued; and further, because the city is not bound to act until a formal claim has been presented. It may be that the refusal of the city to pay the damages was because no claim had been presented. If counsels’ reasoning be good, a demand and refusal in such cases
Neither does it follow that a claim must be filed for every breach and in all cases. It may be so as a general proposition, but if the damages are of such nature that they may be called continuing, a claim filed even before all the damages have been suffered, if in form to cover prospective damages, has been held sufficient to satisfy the law. Hieber v. Spokane, 73 Wash. 122, 131 Pac. 478.
The majority of the court adheres to its former holding. The judgment is affirmed.
