*1 repairs, original between the White contract under the significant. Platt-Rogers, Company is most the district judgment with directions is reversed findings affirming award judgment court enter of the commission. participating.
Mr. Justice Campbell 12,265. No. Taylor. County Denver 594) (292 Pac. 6, 1930.
Decided October *2 George Mr. Thomas H. Mr. E. Mr. V. Gibson, Holland, George Mr. O. for in plaintiff Hetherington, Bakke, error. Guy
Mr. Mr. de- for Collins, W. Penn D. Duncan, fendant in error.
En Banc. opinion delivered of the court.
Mr. Justice Alter Ora A. Taylor, error, defendant in hereinafter referred to as in plaintiff, brought this action the district court against and County in Denver, the state body error*, Colorado,, politic and corporate, plaintiff hereinafter defendant, damages referred to recover for her while injuries attending sustained a “flower show” in the Denver auditorium.
The plaintiff recovered judgment, to review which defendant prosecutes this writ, assign- but one discussing ment of i. e., the error, of the failure plaintiff to give notice of injury the time fixed charter of the defendant.
The charter provision upon which the defendant relies is: city “Before and shall county be liable for dam- ages any person injuries upon any streets, avenues, sidewalks alleys, public places of the city and county, person so injured some one his on behalf, shall, within sixty days after in- receiving such juries, mayor give the in- notice, writing, of such juries, fully stating notice, when, and how such injuries occurred and the extent thereof.” re- complains injuries plaintiff were ceived on November and no written notice there- of was upon mayor January served until 1926. plaintiff, assuming that notice was under provision, attempted complaint the charter in his to ex- timely by alleging cuse the thereof service the mental physical incapacity plaintiff during and entire sixty days period, alleged service of the imme- diately incapacity after the removed. was plaintiff injured
The accident in which con- eededly “upon any did not occur of the streets, county, sidewalks,” but did occur municipal municipal auditorium, and, unless a purview auditorium, comes within the public places,” provi- “other our attention called to no any sion of section of the charter of the re- defendant quiring given notice to be before for in- attaches juries sustained. knowledge
It is a matter of common “streets, *3 public places. sidewalks” are areWe upon meaning now called to determine what the of the public places,” words, “other used in connection with the preceding specific pose comprehends, pur- terms, and for this obliged to resort to rules of construction. opinion by Campbell,
In an able Mr. Justice court, this People, in the case of Gibson v. Colo. 99 Pac. contributory delinquent 333, said: “The law declares ‘parent legal parents, guardian, person that or or having custody any person,’ of such or other child, delinquency delinquent juve- who contributes to the of a person, guilty nile ‘shall be of a misdemeanor.’ Defend- parent, guardian, ant was not a or or the custodian of the juvenile delinquent, says attorney general but the she expression any person.’ comes within the ‘or other The general jurisdic- familiar which rule, is enforced in this general import specific tion, is that where words of follow designations application general language of the by specific. controlled This is but a rule of construc- legislative plain and is tion, not allowed to defeat the yet legislative will; where the intent is doubtful, resort proper. Applying to rules of construction is this rule that pur- mind statute, bearing prime to this and as children, nearly for delinquent to- pose provide their should parents care may training and be, sub- to that end do not and afford, but which they control, parental authority governmental stituting ‘or by per- clear that other entirely any seem would that persons; like assembly son’ meant other general delinquent towards the occupy other is, persons or parent, legal guardian, that of a relation similar obligation train- whom rests the upon and custodian, by law. natural or created ties, from ing, either arising* the whole no means exhaust by persons who are other persons it is there but genus, apparent a relation similar delinquent towards the may occupy enumerated. by that sustained those clear and exceptionally In an well reasoned opinion Co. v. Dairy Climax Mr. this Adams, court, Justice Mulder, Pac. said: “Is 407, 413, 78 Colo. L. 4027, 4028, 4029, above statute [secs. any receptacles milk milk intended include or 1921] act, kind? at we find Looking legislative specific ‘ beer, ale, cider, words, waters, porter, Soda or mineral ‘or followed other bever wine,’ general words, ‘milk’ or medical or word ages, preparations.’ other say is not error all, plaintiffs mentioned at but a, though expressly named, beverage, milk is drawn, words, from above general must be act, ‘other in sections beverages,’ ‘ ’ article of words, any merchandise, in section *4 to thereof. But we con agree. this cannot In statutory of struction, general words an following enumeration specific things usually are to of restricted things ap same kind (ejusdem generis). This rule limits the of the ‘or plication general above other bever words, ’ to ages, things waters, in the nature of soda or mineral ale, cider or a beer, porter, merely wine. This is not to or avoid rule, statute; technical limit of on grasp it is prevent stretch of contrary, beyond meaning legislative accu intendment; to determine with very rule of inter racy it is a old mind; what was in long indispensable proven en pretation those that has meaning getting of what others have gaged at the ’’ written. “By Cyc. of find: the rule construc we In 1119, 1120, general generis,’ ‘ejusdem words as tion known persons particular of classes of follow the enumeration appli things, general will be construed words or general things only persons na the same of or cable particular words or enumerated. ture class those species general presumed and the certain are to describe including purpose of for the words to be used genus. species on the rule is based of the' same legislature if had intended obvious reason that they general in their unrestricted sense words to used be particular classes. would have no mention of the made following ‘any an enumera or other’ The words ‘other’ particular read as are therefore to be classes tion only of like kind others ‘other and to include like,’ or character. ‘‘ In 25 R. L. 996, we find: statute General words in a general must receive a construction, unless there is some- thing in but in accordance them, it to restrain with what commonly ejusdem generis, rule of known as the where, general designation partic- in a words follow a statute, persons, subjects ular or classes ordinarily
general presumed words be restrict- will only designation, particular and to include ed persons things kind, of the same class nature as specifically there clear enumerated, unless is a those a'contrary purpose.” manifestation Statutory (2d Ed.)
In Lewis’ Sutherland Construction says: p. general author II, 814, there Vol. “When specific following particular words for words, things mer confined must be same kind. This is ejusdem generis.” the rule or doctrine of known as (2d Ed.) p. In A. & E. Enc. Law we find: *5 general particular ones, words follow the rule “Where persons applicable is construe former or ejusdem things generis. sometimes rule, This is stated, called Lord been as to rule, Tenterden’s has word ‘other’ or other document thus: Where a statute things, persons im enumerates or several classes of mediately following enumeration and classed with such things, persons word ‘other’ the clause embraces generally so that like,’ will ‘other such ‘other’ be read as may persons things comprised be read as therein ejusdem generis quality superior to or with, and not of specifically enumerated.” from, different those also: See Hardcastle’s Construction of and Effect Interpretation p. Law, 199; Statute 567, Endlich of Statutes, (2d Ed.) & 405,; sec. E. 26 A. Enc. of Law 609. ‘‘ ’’ alleys, It is obvious that streets, avenues, sidewalks public places county, are within the so that it entirely unnecessary specifically seem would mention public places” if them “other used is in an all-inclusive meaning, light sense and literal rather than ejusdem generis. provision rule If the charter apply injuries places, intended to to all incurred in all entirely proper assume it would have been provisions worded similar to the of our statute with reference t o the cities the first and second (sec. 1921). class, towns C. L. public places,” If “other as used in charter,
synonymous public places, with all counsel defend- ant we contend, must hold the “streets, use the words, provision sidewalks, in the charter en- tirely superfluous, meaningless, adding redundant and absolutely nothing. adopt contrary We construction, namely, public places” words “other are re- places specifically stricted to of the same kind as those quoted, supra. required, under
We another well known and universally recognized rule of in ascertain construction, ing legislative body, the intent of a and the *6 every phrase, to effect to enactments, word, its if be we done, and it can and clause, section, sentence legislative body presume that used the lan- not to idly guage no intent that should be People Morgan, given language. v. 79 504, its Colo. Cyc. 36 1128. 507, 1024; Pac.
Applying
of
char
these rules
construction to the
determining
provision,
ter
in order to
us in
what
assist
legislative
in
enact
means,
it
and what the
intent was
its
places
its
ment,
well as what
were included
municipal
it
auditorium,
is
constructed
terms,
clear that
capac
by
city
county
private
in ministerial
ity,
distinguished
governmental
political
from its
capacity,
purview of
char
is not
included within the
provisions
ter
under consideration.
the lia
Therefore,
bility
county
negligence,
is, under the
irrespective
circumstances
this case, to be determined
injury.
plaintiff,
alleg
service of
notice of
ing
explain
service, and in her effort to
and excuse be
unnecessary
did
lated
an
service,,
act. Baker v. Town of
City
Springs
Manitou,
232;
Fed.
Colorado
v. Nev
Cunningham
ille,
Colo.
1096;
Pac.
v. Denver,
356;
Cox,
Colo.
45 Pac.
Canon
Colo.
excuse
service thereof, and in each
we held
case
service of
precedent
awas condition
to the
right negligence,
maintain an action for
but
none of
these cases did we hold that a notice was
under
in the
statutory provision
a charter or
similar to the
one
instant case. Our decision in this case does not conflict
any
with the decision in
above.
People,
As was said in the case of Gibson v.
44 Colo.
:
persons specified by
606,
means exhaust the whole but it persons may occupy there are other linquent who towards the de a relation similar that sustained those example: For enumerated. older brothers and sisters, companions, nurses and teachers, relatives, other blood same but are are enumerated none whom genus.” places speci might herein: The well be said
As genus, appar but exhaust the whole fied no means places similar those enumer ent that there are other ‘ ‘ might public places example, include ated. For thoroughfares, parkways, highways, places, via lanes, bridges, if same 'included such, ducts and but all public genus public places,” must similar as “other places sidewalks.” to “streets, following immediately phrase, public places,” “or other *7 specifically “streets, enumerated the only interpreted such to other be include sidewalks must places places for animal or vehicu or used similar public places include to lar held to travel, be and cannot such amusement, which one entertainment resorts for pavilion, municipal theatre or amuse auditorium, as a park. ment
Judgment affirmed. Camp and Mr. Justice Mr. Chief Justice Whitford participating. bell not Mr. Justice Butler concurring. judgment. Though
I concur in the I affirmance of the given principal do not opinion, from dissent the reason satisfactory it seems to me that is a more there reason affirmance.
Upon conflicting
during
jury found
evidence, the
that
sixty days immediately following
period
entire
the
plaintiff
physical
was in such
or mental
the accident the
give notice,
she was unable to
or cause
that
condition
specified
given,
time
char
notice to
the
the
expiration
gave
sixty
the
ter.
days.
notice after
the
She
denying recovery
cir
decisions
There are
(C. A.),
Fed.
Baker Manitou
cumstances. See
weight
But
reason,
cited.
and the
there
232, and cases
contrary.
authority,
to
the
me,
to
it seems
dealt,
heretofore have
with which we
In those cases
physically
mentally
injured person
not
un
was
the
question
give
now
the
before us
notice; therefore,
able
assigned
ruling
presented.
for the
reason
not
supra,
is
the
cases,
and similar
case,
in the Baker
legislature
physi
exception
favor of one
made no
has
mentally
cally
notice, and the courts
unable to
given a reasonable
But this court has
make none.
can
requiring
in certain
notice, and
statutes
construction to
recovery
upheld
literal
has
a
circumstances
strictly complied
statutes have
been
terms
not
against
no
with.
a statute
action
Thus,
city of the
shall be maintained on
second class
account
negligence,
injury
given
unless written notice of the
excep
city
No
clerk
within a
time.
person in
tion mentioned.
time limit
Within
jured
city,
copy
sued
summons,
by delivering
complaint attached, was served
the same
mayor,
city
Shortly
to the
clerk.
thereafter
mayor
copies
clerk,
and the matter
handed the
reported by
mayor
coun
was thereafter
plaintiff
and commenced
cil. The
dismissed that action
given
alleged that she had
notice.
another, in which she
*8
given.
held that such service was
No other notice was
We
compliance
statute. Canon
v.
with the
a sufficient
Compensation
264. The
Cox, Colo.
Workmen’s
re
Act
peremptory
quires,
provision
in
terms
as the charter
question,
injury
that notice of the
must be filed within
right
compensation
specified
time,
the
“shall be
wholly
exception
It makes no
war,
barred.”
case of
estoppel.
provide
it
waiver or
does
In
nor
Colorado
& Iron Co. v. Industrial Commission, 73 Colo. 579,
Fuel
of
held
the failure
Pac.
we
706,
claimants
statutory
within the
time did not
the notice
bar a
file
during
recovery
the entire time within
no
where,
given,
required to
the claimants
be
lived in
was
a for
tice
country
eign
States;
which was war with the United
at
by
of
im
in other
reason
it was
words, where,
war,
possible to file
notice.
have held also that snch
We
may waived,
notice
and that in certain circumstances
be
estopped
setting up.
a defendant
from
absence
would
Kettering
Fox,
of
Co.
notice as. a defense.
Mercantile
v.
Greeley
Pac.
Co.
90,
464;
77 Colo.
Gas & Fuel
v.
Thomas, 87
In the law of insurance, contract exempts required from insurer if given stipulated of loss is not within the is the time, it general of rule that where, because circumstances surrounding giving conditions transaction, of specified impossible, notice within the time becomes it p. will be 14 R. L. In excused. 1333. London Guarantee & Officer, Accident Co. v. 78 Colo. Pac. required proofs
contract within of claim to be furnished stipulated proofs were not time. furnished reasonably “as soon as time, were furnished but possible.” held Other illustra this to be sufficient. We application principle readily of will occur tions to the reader. required
A
injury
statute of Illinois
notice of
to be
given
municipality
to a
within six months from the date
injury.
Spring Valley,
McDonald v.
Ill.
In
give
N. E.
held
476, was
that the failure to
such notice
by
within the time
did
bar an
one
action
minority
who,
her
reason of
extreme
seven
—she
years
age
mentally
incapable
physically
—was
giving
statutory
notice.
Freeport,
And see Doerr App.
239 Ill.
Appeals
560. The New York
Court
made
ruling
years
the same
age.
the case of a child five
Murphy v. Fort Edward, 213 N. Y. 397,
In an R. note, elaborate A. L. in 1924, authority it is said: “There is considerable the effect injury that failure notice of an accident or holding a time thereafter aas condition of a municipality necessarily liable therefor does bar re covery, comply since failure to with the literal terms may by showing extenuating the statute be excused cir physical example, cumstances, such, for in or mental . ” capacity, statutory during period Many etc., cases support page are cited in of the statement. On it is have said there been “a few decisions” to the con trary, citing cases. holding’ injured person
Some cases an to a strict compliance statutory provision concerning with the no- recognizing noncompliance, tice, no excuse stress fact that in those cases the munici- argued pality purely statutory, from which it is object statutory right no one has modification *10 100 condition See precedent. of a imposition or the
thereof, case A between such a 31 A. L. R. 627. distinction note, created but statute, not liability one where the and wholly unjusti not seem to be law, common does exists at very of action owes its right In the former, fiable. the latter, legis the statute; whereas existence the existing a right a restriction upon seeks to impose lature was Denver auditorium of statute. independently enter instruction and resort, constructed a place accident the at the time of for citizens, tainment its In constructing held therein. flower show was being acted maintaining building, municipality in its and proprietary capacity, private, corporate munici liability hence the governmental capacity; Spencer, Denver v. 34 liability. ais common law pality Davis, Denver v. 370, 37 Colo. 270, 590; Colo. 82 Pac. Cox, Canon v. 1027; Pac. 133 Pac. 264, Colo. Maurer, Denver v. Den 1040; 875; 47 Colo. Pac. 209, 106 ver v. v. Dunsmore, Barnes Dis 328, 705; 7 Colo. Pac. trict Columbia, 440; Randolph 23 L. Ed. 540, U. S. v. Terrell v. Wash Springfield, 449; 302 Mo. 33, S. W. E. 888. re ington, valid, 158 N. 73 S. To be striction to recover must not be unreason upon .right Spring v. McDonald v. Randolph Springfield, supra; able. Lac, v. Fond du Valley, Hughes 476; 285 Ill. E. 52, 120 N. require person 41 N. 407. To an injured Wis. W. him to do would be unrea to do what impossible intent cannot assume such sonable, and we of the framers of the charter. (art. Constitution Colorado 2, §6) provides,
“ That courts of justice open every shall person, afforded for remedy every injury speedy person, * * *.” or character The Constitution property the same substantially Missouri has and its provision, similar notice is concerning provision statute Randolph In Springfield, 302 Mo. Denver charter. held that a give it was failure to 257 S. W. time does statutory not relieve a munici- within the physical pality reason of his who, from to one disability, the notice is unable to or mental so construe the said time. It was bring unthink- that result would be statute as to about ' inability especially result of was the such able, injured negligence and that him,” “the bring conflict statute into construction would “In the case also said: The court Constitution. right plaintiff common law of action at had a bar, at *11 city. injured No act soon as she clogged Legislature or encumbered valid which would be right impos- right common-law her to enforce such require her such as conditions, sible incapable mentally physically of so when she was performance, impossible doing, or other conditions without her fault.” adopt
To which we should rule, the strict decline to do, offering suggestion equivalent would this to munici- you any palities negligent : If see to it occasion, on your sufficiently gross negligence that complete to insure disability
physical victim; mental necessity by doing you paying will avoid dam- so, pay ages, you would b© if the victim possession were left in of his faculties. judgment
The affirmance of the inis accordance with justice. law both