Wurster v. City of Seattle ( 1909 )

Dunbar, J.

— 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. 245, 98 Pac. 743, that this charter provision could not be literally enforced by holding good a notice where .the language of the claim was, “That during the time herein mentioned and long prior, thereto she was a resident of Seattle, King County, Washington.” Counsel for respondent, in their oral argument presented in this case, earnestly urge the court to overrule the decision in Hase v. Seattle; but both their oral argument and the arguments presented in the brief are practically the same as the arguments presented to the court in that case, and after duly considering the arguments presented, we are not convinced that we should overrule the decision in the case above referred to.

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.