51 Wash. 654 | Wash. | 1909
Lead Opinion
— This was an action against the city of Seattle for the death of a ten-year-old child, caused by coming in contact with a live wire which, it is alleged, was brought^ to the ground in. a certain street in the city of Seattle by reason of the city’s negligently permitting an upright pole, on which the wire was fastened, to fall to the ground. A demurrer was interposed to the complaint, for the reasons (1) that there was a defect of parties plaintiff, (2) that the complaint did not state facts sufficient to constitute a cause of action, and (3) that the claim attached to-the complaint was invalid and did not comply with any of the terms of the city charter relative to filing of such claims. Tins demurrer was sustained by the court, and the plaintiff electing to rely upon his complaint, judgment was entered dismissing the action, and from such judgment this appeal is taken.
No argument was made in this court, orally or by brief, in favor of the first two grounds set forth in the demurrer; and an examination of the complaint satisfies us that no successful-argument could be made in that regard. We conclude that the demurrer was sustained on the third ground; not for the reason stated so broadly in the demurrer that the notice did not comply with any of the terms of the city charter relative to the filing of such claims, but for the reason that the claim did not state the residence of the claimant for one year last past, this being a requirement of the charter. This is the only ground which was argued by counsel upon this appeal, either in their briefs or orally. Since the court sustained this demurrer, this question has been passed upon by this court, after due consideration and a thorough investigation of the authorities, in Hase v. Seattle, ante p. 174, 98 Pac. 370, and we there held that this provision of the charter was unreasonable and therefore could not be sustained. This court also held in Jones v. Seattle, ante p.
The judgment in this case will therefore be reversed, and the case remanded with instructions to proceed with the trial of the cause.
Rudkin, C. J., Crow, and Gose, JJ., concur.
Dissenting Opinion
(dissenting) — I dissent. The charter of the city of Seattle, art. 4, § 29, provides that claims for damages against the city may be prosecuted provided a claim meeting the following conditions is filed: (1) Presentation within thirty days after the time said claim accrues; (2) accurate location and description of the defect that caused the injury; (3) accurate description of the injury and items of damages;. (4) the residence of the claimant for one year preceding the-time of injury.
Now, if it be a reasonable requirement that a claim must be presented within thirty days- — and this court has so held (Postel v. Seattle, 41 Wash. 432, 83 Pac. 1025; Ehrhardt Seattle, 40 Wash. 221, 82 Pac. 296); if it be a reasonable-requirement that the location and description of the defect be set out — and this court has so held (Falldin v. Seattle, 50 Wash. 561, 97 Pac. 658; Ellis v. Seattle, 47 Wash. 578, 92 Pac. 431); if it be a reasonable requirement that the injury be accurately described, a compliance with which would generally require a resort to technical advice, and direction—
Fullerton and Mount, JJ., concur with Chadwick, J.