27 Wn.2d 284, CATHERINE FORSETH, a Minor, by Charles M. Forseth, her Guardian ad Litem v. THE CITY OF TACOMA
[No. 29917. En Banc.      Supreme Court      March 5, 1947.]
CATHERINE FORSETH, a Minor, by Charles M. Forseth, her
           Guardian ad Litem, Appellant, v. THE CITY OF TACOMA,
                               Respondent.«1»

We bear in mind the fact that many cases have arisen, both in this state and in other jurisdictions, wherein it was held that failure to give, or delay in giving, notice of accident or injury within the time required by statute or municipal charter, may nevertheless be excused by

292 FORSETH v. TACOMA. [27 Wn. (2d)

showing extenuating circumstances such as physical disability or mental incapacity during the specified period. Most of the cases so holding, in this state, stem from the decision in Born v. Spokane, 27 Wash. 719, 68 Pac. 386. The cases of like import, from other states, will be found in annotations appearing in 31 A. L. R. 619; 59 A. L. R. 411; 109 A. L. R. 975.

In this connection, however, it is noteworthy that in 1917, a considerable period after the decision in the Born case, supra, the legislature of this state enacted Rem. Rev. Stat., § 9479, which authorized any relative, attorney, (?r agent, representing a claimant who is a minor or otherwise incapacitated, to verify and present the claim on behalf of such injured person. Whether, in the light of that statute, failure to file a claim against a municipality for damages within the required time may yet be excusable on similar grounds, is a debatable question. At any rate, it would seem that the circumstances alleged to be extenuating would have to present an extreme case, demonstrating a situation wherein it would be utterly unconscionable and unjust to enforce strict compliance with the amendatory provisions. However, it is not necessary for us presently to lay down any rule for such supposed cases, and for that reason we do not now express any considered opinion thereon.

In the instant case, appellant makes no contention that, simply because of her being a minor, she should be excused for failure to comply with the statutory and charter provisions. Her contentions are based solely upon these two propositions, as stated in her brief:

(1) "The sixty-day Charter Provision and the Statute (Rem. 9478) were never intended to apply to a case where the City is relieved of responsibility by virtue of the carriage of liability insurance."

(2) "If we assume that the Charter and the Statute apply, the facts admitted [by the demurrer] constitute a waiver and estop the City from raising the limitation bar against plaintiff's claim."

As to the first proposition, appellant concedes, and in her brief states, that the question of insurance was neither presented to nor decided by the trial court. We will assume,

Mar. 1947] FORSETH v. TACOMA. 293

however, that the suggested issue is properly before us for consideration.

[3] It will be recalled that, with reference to the question of insurance, the amended complaint simply stated that, at the time of appellant's injury, the City of Tacoma carried liability insurance covering the operation of the Belt Line bus service," and identified the particular casualty insurance company which underwrote the liability. The remaining allegations of the amended complaint dealt particularly with those things which the adjuster for the insurance company did, or failed to do, in his negotiations with the appellant.

The amended complaint gives no information as to the nature, conditions, or extent of coverage of the contract of insurance, except that the city "carried liability insurance" with a designated company. Appellant in her brief makes the unsupported statement that:

"Here the City is technically liable but its protection from all actual loss on account of carriage of private insurance simply means that the City is only a nominal party, the real party in interest being the insurance company which is bound, presumably, by contract to pay any judgment against the City which might be entered against it."

This statement is but an assumption on the part of the appellant. No facts are alleged in the amended complaint to warrant such inferences. The mere fact that the city carried some sort of liability insurance under a contract, the terms of which are not disclosed, does not establish "its protection from all actual loss," or that it "is only a nominal party." This action is not against the insurance company, but against the city, and any judgment which appellant might recover in the action would be against the city itself and would have to be paid by it, regardless of whether the city could thereafter look to the insurance company for reimbursement of the whole or any part of such judgment. Moreover, were the situation such as the appellant contends with respect to the city's "protection" under its contract of insurance, there is no allegation in her pleading from which it can be inferred that the policy of insurance did not

294 FORSETH v. TACOMA. [27 Wn. (2d)

preserve to the company the right to avail itself of any defense that the city itself might have.

[4] Furthermore, in the absence of some permissive statute or some similar provision in the policy itself, appellant could not have maintained an action against the insurance company without first obtaining a judgment against the city. 29 Am. Jur. 810, Insurance, § 1080.

In our opinion, the allegations of appellant's pleading with respect to liability insurance are not sufficient to render the statutory and charter provisions inapplicable.

[5] Appellant's second proposition, stated above, presents the question whether the respondent city has, under the admitted facts, waived, and is therefore estopped to plead, the limitation bar of the statute and charter.

A definite and complete answer to this contention is that the amended complaint shows on its face that whatever authority the adjuster for the insurance company may have had in negotiating settlement of such claims, that authority was conferred upon him not by the city council, but only by "the Municipal Bus Line Division of the Department of Public Utilities of the City of Tacoma."

The officer designated by the charter as the superintendent of the Municipal Belt Line is but one of three superintendents appointed by the commissioner of public utilities (Tacoma charter, § 48), and the commissioner of public utilities is himself but one of five commissioners composing the city council. (Tacoma charter, § 18.) Appellant's claim is not against the Municipal Belt Line nor against the department of public utilities, but is against the city of Tacoma. The charter, § 133, requires that all claims for damages against the city be presented to the council, not to the department of public utilities, or any officer thereof.

The city council is the only authority which, under the charter, can receive and act upon such claims, and consequently it is the only authority, if there is any at all, which can waive compliance with the provisions of the organic law.

Mar. 1947] FORSETH v. TACOMA. 295

In Cole v. Seattle, 64 Wash. 1, 116 Pac. 257, Ann. Cas. 1913A, 344, this court had before it a question similar to the one involved here and, in that case, discussed and disposed of the question as follows:

"The city council is the only authority which, under the organic law of the city, can take cognizance of such claims, and it necessarily follows that it is the only authority which can waive compliance with the charter. Logically, a waiver could only be predicated upon some act of the council treating the defective or belated notice as a valid claim. It would be illogical to hold that any other person or body could waive for, or create an estoppel against, the city except that body which the law has designated to receive and act upon the claim. Any other construction would nullify the charter requirement. No act of the council was alleged in the complaint here in question as ground of waiver by, or as the basis of an estoppel against the city. The complaint does not allege that the claim, either verbal or written, ever reached the council within the thirty days, or that the council ever did any act which could be construed as a waiver after the filing of the sworn claim about nine months later. Neither of the persons to whom the informal notices were given was authorized to act for the council or for the city in that behalf. It would be a dangerous doctrine fraught with far reaching mischiefs to announce that any officer or employee of the city could bind the city or estop it of any right as to matters by its charter placed expressly within the cognizance of the city council only. If such a doctrine were adopted it would lead to endless confusion in the performance of contracts with the city, and in the administration of its many diverse business interests. We, therefore, hold that a compliance with the reasonable terms of the charter provision cannot be waived by statements or acts of any officer or employee of the city other than the city council, and that to establish a waiver by the council some affirmative cognizance of the claim, other than rejection by the council, must be pleaded and proved. In this we are in accord with the decided weight of authority. [Citing cases.]"

The case at bar presents a stronger barrier against recovery by the injured claimant than did the case of Cole v. Seattle, supra, in that the Tacoma charter (§133) contains a provision, which the Seattle charter did not include, namely:

296 FORSETH v. TACOMA. [27 Wn. (2d)

"The omission to present any such claim in the manner or within the time in this section provided, shall be a bar to any action against the city therefor."

In the recent case of Caron v. Grays Harbor County, 18 Wn. (2d) 397, 139 P. (2d) 626, 148 A.L.R. 626, a situation analogous to the one here was presented. In that case, suit was brought against a county to recover damages for personal injuries sustained by the plaintiff in consequence of her slipping and falling from a ladder n the county clerk's office. The applicable statute therein, Rem. Rev. Stat., § 4077 [P.P.C. § 480-17], provides that all claims for damages against any county must be presented to the board of county commissioners of such county and filed with the clerk thereof within sixty days after the time when such claim accrued. The claim which was presented by the plaintiff in that case, although filed in time, concededly was defective in several respects and did not comply with the essential requirements of the statute. However, when that fact was specifically called to the attention of the county commissioners, at a regular meeting of the board, they declared, through the chairman, that the claim was sufficient in its statement.

The opinion in that case made reference to the settled rule in this state that the filing of a claim in accordance with Rem. Rev. Stat., § 4077, is a condition precedent to the maintenance of an action for damages against a county, and at the same time recognized the kindred rule that there must be a substantial compliance with the statute, citing the Duschaine case, supra, and others.

Rejecting the plaintiff's contention that the county commissioners by their words and acts had waived compliance with the statute, this court said:

"While there are some decisions to the contrary, the weight of authority is, in our opinion, clearly to the effect that municipal officers do not have the power or authority to disregard the plain, mandatory provisions of claim statutes and may not waive substantial compliance therewith." Many cases were cited in support of that statement.

Mar. 1947] FORSETH v. TACOMA. 297

The reasons assigned for that pronouncement were expressed thus:

"The adoption of such a rule not only affords the municipality a full opportunity to make a complete and intelligent investigation of the facts concerning the claim, but will also provide a safeguard against favoritism, negligence, or inattention on the part of officials to whom the affairs of the municipality are committed. Since, as we have heretofore indicated, the claim in question did not substantially comply with the essential requirements of the statute, the present action cannot be maintained."

There are, admittedly, two distinguishing features between that case and the one here. The first is that, there, the claim was against a county and arose under Rem. Rev. Stat., § 4077, while here the claim is against a city and is governed by the statutes and charter provisions previously quoted herein. The principle involved in both cases is, however, the same, and the reasons for a like enforcement of the applicable law are equally potent and controlling.

[6] The second distinguishing feature is that, in the Caron case, supra, the issue involved the question of a "substantial compliance" with the statute with respect to the contents of the claim, while here the issue is with respect to the timely presentation and filing of the claim. Again, no distinction in principle, or in the propriety of enforcement, can be drawn. There might well be a "substantial compliance" with the statute or charter with respect to the description of an injury or the residence qualifications of a claimant, even though the claim were imperfectly phrased, but there can be no "substantial compliance" with the provision concerning the time within which a claim must be filed, except by filing it within that time.

In this instance, the claim was not filed within the required sixty-day period, and, under the rule declared in the Caron case, supra, the city authorities may not disregard the plain, mandatory provisions of the statute and charter with respect to the time of filing claims, and may not waive compliance therewith.

Appellant relies strongly upon the case of Farrell v.

298 FORSETH v. TACOMA. [27 Wn. (2d)

Placer County, 23 Cal. (2d) 624, 145 P. (2d) 570, 153 A.L.R. 323, decided since the Caron case, supra. While the Farrell case does support appellant's contention, it falls within that category of cases which this court, in the Caron case, mentioned as constituting a minority holding and at the same time distinctly declined to follow. We have no inclination now to depart from our former holding. Among the more recent cases from other jurisdictions supporting this conclusion are Johnson v. Chisholm, 24 N. W. (2d) (Minn.) 232, and Phillips v. Abilene, 195 S. W. (2d) (Tex. Civ. App.) 147.

[7] We will now refer briefly to the particular reasons given by the appellant for declaring that the city is estopped of its right to enforce against her a strict compliance with the sixty-day limitation provision of the charter. For the purpose of the present argument, we will assume that the insurance adjuster was acting as the agent of the city, rather than of the Municipal Belt Line or the department of public utilities.

It is said, first, that the adjuster advised appellant that she would be paid "proper compensation" for her damages. There is no allegation to the effect that the amount which he did offer her was not a proper compensation.

It is next claimed that appellant had no knowledge of the requirements of the charter. If that were a sufficient excuse, the charter provision would have little validity, for probably only a relatively few people outside the legal fraternity have such knowledge. The charter provision requires that "all claims for damages" shall be presented to the city council, not merely those of persons who may have knowledge of the charter requirements.

Appellant next complains that the adjuster gave her no intimation relative to the charter provision, but, on the contrary, "led her to believe that she did not need a lawyer." The adjuster was under no duty to inform her as to the provisions of the charter or as to her need for a lawyer. She was not an immature infant, without any business experience or capacity to transact such. She was seventeen years of age, had for four years previously been working

Mar. 1947] FORSETH v. TACOMA. 299

for wages, and, by her own allegations, had been looking after her own affairs. Moreover, for an extended period of time she did actually carry on negotiations with the adjuster with reference to her claim. Besides, she did have parents and at the time of her injury was, and had been, living with her married sisters, any of whom she might have consulted and all of whom were persons who, under the statute, could have presented a claim for her, or else have advised her that she needed a lawyer.

There are no allegations of fact sufficient to justify the statement in appellant's pleading that she was "trapped" by the prolonged negotiations or the representations made to her by the adjuster. She was in no way prevented from securing the services of an attorney, and her real complaint in this respect seems to be that the adjuster did not advise her to employ counsel. He was under no obligation to do so.

It may be unfortunate for appellant that she did not receive, or was not offered, as much compensation for her injuries as she thought she was entitled to, but here we have mandatory provisions of a statute and of a city charter with which there has not been compliance, and the reasons given for noncompliance are, in our opinion, as a matter of law, insufficient.

The judgment is affirmed.

MALLERY, C. J., ROBINSON, SIMPSON, JEFFERS, and HILL, JJ., concur.

MILLARD, J. (dissenting) - 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 Wn. (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 Wn. (2d) 107, 132 P. (2d) 1011, that

300 FORSETH v. TACOMA. [27 Wn. (2d)

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 Wn. (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. Strand v. State, supra; 21 C. J. 1113.

Caron v. Grays Harbor County, 18 Wn. (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 of Labor & 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 declared for 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.

27 Wn.2d 284, CATHERINE FORSETH, a Minor, by Charles M. Forseth, her Guardian ad Litem v. THE CITY OF TACOMA [No. 29917. En Banc. Supreme Court March 5, 1947.]CATHERINE FORSETH, a Minor, by Charles M. Forseth, her Guardian ad Litem, Appellant, v. THE CITY OF TACOMA, Respondent.«1»

27 Wn.2d 284, CATHERINE FORSETH, a Minor, by Charles M. Forseth, her Guardian ad Litem v. THE CITY OF TACOMA
[No. 29917. En Banc. Supreme Court March 5, 1947.]
CATHERINE FORSETH, a Minor, by Charles M. Forseth, her
Guardian ad Litem, Appellant, v. THE CITY OF TACOMA,
Respondent.«1»