specially concurring.
I concur in the result reached by the majority, but for a different reason. In my opinion, plaintiffs complaint was sufficient to entitle him to offer evidence in support of his contention that defendants had accepted the notice mailed to them and had waived any defect arising from the fact that the notice had been sent by regular mail, rather than by certified mail.
One of the issues on which the parties are in disagreement is whether defendants, as municipal corporations, could waive the defect in the mailing of the notice by *86regular mail, instead of by certified mail. In my opinion, such a defect can be waived by a municipal corporation.
This court, in Sprague v. Astoria, 100 Or 298, 195 P 789 (1921), quoted with approval at 309-10 from McQuillin, Vol. 8 (Supp), Municipal Corporations, Section 2714, as follows:
“ ‘The waiver of the requirement (notice of the accident) is not sanctioned, although certain defects in the notice may be waived, as contradistinguished from waiver of absence of notice.’ ”
Our later decision in Bankus v. City of Brookings, 252 Or 257, 449 P2d 646 (1969), cited by defendants, did not involve a defective notice and did not overrule our previous decision in Sprague.
Plaintiffs complaint alleged not only that a claim was made by mailing a letter and that the letter was received. The complaint also alleged that the claim was “processed and investigated by defendant Clackamas County [and by defendant school district] as a tort claim pursuant to ORS 30.275.” The majority, with no citation of supporting authorities, holds that plaintiff s complaint “does not sufficiently allege defendants’ intentional relinquishment of their right to rely on proper notice as a condition precedent to commencement of a tort action against them” in that “[pjlaintiff alleges no clear, unequivocal or decisive act showing a purpose to waive the tort claims notice requirements” and that “prudent public officials may well process and investigate alleged claims without intending to waive their objection to improper notice of such claims.”
I disagree. In my opinion, it is far more likely that a defendant who receives a claim by regular mail, rather than by certified mail, but then proceeds not only to “investigate and process” the claim, but does so “as a claim pursuant to” the Tort Claims Act, does so with an intent to waive the irregularity in the method of mailing. Indeed, it is somewhat incredible to say that a defendant who could immediately reject a claim on the ground that it was improperly mailed, without incurring any further time or expense, would incur the substantial time and expense involved in “investigating and processing” the claim “as a *87claim pursuant to” the Tort Claims Act unless the defendant intended to waive that technicality.
If this be so, as I believe it to be, these allegations in plaintiffs complaint are not so defective as to require this court to deny to the plaintiff a trial at which he may have an opportunity to offer evidence in support of these allegations from which a jury could properly find that defendant did indeed intend to waive that technicality.
ORCP Rule 12A provides that:
“All pleadings shall be liberally construed with a view to substantial justice between the parties.”
In Emerick Co. v. Bohnenkamp & Assoc., 242 Or 253, 409 P2d 332 (1965), this court (at 256) held that:
“ ‘The principal function of pleadings is to enable litigants to bring their controversies to trial on the merits, and, generally speaking, the rules concerning pleadings should not be permitted to defeat a party’s right to a trial except when to do otherwise would be unjust to his adversary or violate some express command of the statute.’ Ross v. Robinson, 1944, 174 Or 25, 26, 147 P2d 204. The same principle has been repeated several times. Perkins v. Standard Oil Co., 1963, 235 Or 7, 383 P2d 107, 383 P2d 1002; Parker v. Faust, 1960, 222 Or 526, 353 P2d 550; L.B. Menefee Lumber Co. v. MacDonald et al, 1927, 122 Or 579, 260 P 444.”
In recognition of this same principle, and after reference to Section 1-902 OCLA (since supplanted by ORCP Rule 12A), this court held in Stotts v. Johnson and Marshall, 192 Or 403, 234 P2d 1059, 235 P2d 560 (1951) at 415, that:
“Under statutes similar to the one just quoted, construction attributes to the pleading all facts which can be implied by fair and reasonable intendment from those expressly averred; provided, of course, that judicial construction never places upon any pleading a meaning contrary to its express language: 71 C.J.S., Pleading, § 54, p. 123.”
Examples of the application of this rule in somewhat similar cases include the more recent decision by this court in Cody v. Ins. Co. of Oregon, 253 Or 587, 454 P2d 859 (1969), holding (at 593) that a complaint was sufficient in alleging facts sufficient to constitute an estoppel by an *88insurance company to assert the statute of limitations as a defense in an action on an insurance company, despite failure to specifically allege the elements of an estoppel. Again, in Borden v. City of Salem, 249 Or 39, 436 P2d 734, this court (at 41) rejected plaintiff s contention that the city had “waived its governmental immunity,” holding that the city had sufficiently raised that contention by pleading in its answer “the ultimate facts from which governmental immunity is implied as a matter of law * * * .” See also Rich v. Tite-Knot Pine Mill, 245 Or 185, 197, 421 P2d 370 (1966).
Similarly, in Mezyk v. National Repossessions, 241 Or 333, 339, 405 P2d 840 (1965), this court held, although in a different context, that:
“Under the allegations of the complaint, the plaintiff is entitled to offer any admissible evidence relevant to these two issues. We hold that it is reasonably conceivable that the plaintiff could introduce evidence which would enable the trier of the facts to find that the defendant should have foreseen both of these contingencies.”
As also held in Brennan v. City of Eugene, 285 Or 401, 591 P2d 719 (1979):
“Because this case is before us on demurrer, we must assume the truth of all plaintiffs well pleaded allegátions and any facts that might conceivably be adduced as proof of such allegations.” Citing Mezyk, 285 Or at 405.
More specifically, this court held in Jaloff v. United Auto Indemnity Exch., 121 Or 187, 195, 253 P 883 (1926), that:
“Waiver of the performance of a condition precedent may be pleaded by a statement of facts sufficient to establish a waiver. In other words, it is unnecessary to aver waiver in terms where the facts alleged show a waiver * * (Citing many cases).
It follows, in my judgment, that under the allegations of this complaint that plaintiffs claim was “processed and investigated” by defendants “as a tort claim pursuant to ORS 30.275,” plaintiff is entitled to a trial in this case so as to afford him an opportunity to introduce evidence, if he can, from which a jury could properly find that in “processing and investigating” plaintiffs claim “as a tort claim pursuant to ORS 30.275,” defendants intended to waive *89any defect arising from the fact that plaintiffs claim-was sent to them by regular mail, rather than by certified mail.
At the least, now that this case is to be remanded for trial in accordance with the decision by the majority, plaintiff is entitled to file an amended complaint alleging in more detail the facts supporting his contention of waiver and to offer evidence in support of such allegations.