City & County of Denver v. Taylor ( 1930 )

ORA A. Taylor, defendant in error, hereinafter referred to as plaintiff, brought this action in the district court against the City and County of Denver, in the state of Colorado, a body politic and corporate, plaintiff in error, hereinafter referred to as defendant, to recover damages for injuries sustained by her while attending a "flower show" in the Denver auditorium.

The plaintiff recovered judgment, to review which the defendant prosecutes this writ, discussing but one assignment of error, i. e., the failure of the plaintiff to give notice of the injury within the time fixed by the charter of the defendant.

The charter provision upon which the defendant relies is: "Before the city and county shall be liable for damages to any person for injuries upon any of the streets, avenues, alleys, sidewalks or other public places of the city and county, the person so injured or some one on his behalf, shall, within sixty days after receiving such injuries, give the mayor notice, in writing, of such injuries, stating fully in such notice, when, where and how such injuries occurred and the extent thereof."

The injuries of which the plaintiff complains were received on November 3, 1925, and no written notice thereof was served upon the mayor until January 29, 1926. The plaintiff, assuming that notice was required under the charter provision, attempted in his complaint to excuse the timely service thereof by alleging the mental and physical incapacity of the plaintiff during the entire sixty days period, and alleged service of the notice immediately after the incapacity was removed.

The accident in which the plaintiff was injured concededly did not occur "upon any of the streets, avenues, alleys, sidewalks," of the city and county, but did occur in the municipal auditorium, and, unless a municipal auditorium, comes within the purview and meaning of "other public places," our attention is called to no provision of any section of the charter of the defendant requiring notice to be given before liability attaches for injuries sustained.

It is a matter of common knowledge that "streets, avenues, alleys, sidewalks" are public places. We are now called upon to determine what the meaning of the words, "other public places," used in connection with the preceding specific terms, comprehends, and for this purpose are obliged to resort to rules of construction.

In an able opinion by Mr. Justice Campbell, this court, in the case of Gibson v. People, 44 Colo. 600, 605,99 P. 333, said: "The contributory delinquent law declares that the `parent or parents, legal guardian, or person having the custody of such child, or any other person,' who contributes to the delinquency of a delinquent juvenile person, `shall be guilty of a misdemeanor.' Defendant was not a parent, or guardian, or the custodian of the juvenile delinquent, but the attorney general says she comes within the expression `or any other person.' The familiar general rule, which is enforced in this jurisdiction, is that where words of general import follow specific designations the application of the general language is controlled by the specific. This is but a rule of construction, and is not allowed to defeat the plain legislative will; yet where the legislative intent is doubtful, resort to rules of construction is proper. Applying this rule to this statute, and bearing in mind that its prime purpose is to provide for delinquent children, as nearly as may be, the care and training which their parents should give but which they do not afford, and to that end substituting governmental authority for parental control, it would seem entirely clear that by `or any other person' the general assembly meant other like persons; that is, such other persons as occupy towards the delinquent a relation similar to that of parent, legal guardian, or custodian, and upon whom rests the obligation of training, either arising from natural ties, or created by law. The persons specified by no means exhaust the whole genus, but it is apparent that there are other persons who may occupy towards the delinquent a relation similar to that sustained by those enumerated."

In an exceptionally clear and well reasoned opinion by Mr. Justice Adams, this court, in Climax Dairy Co. v.Mulder, 78 Colo. 407, 413, 242 P. 666, said: "Is the above statute [secs. 4027, 4028, 4029, 4030 and 4031, C. L. 1921] intended to include milk or milk receptacles of any kind? Looking at the legislative act, we find the specific words, `Soda or mineral waters, beer, ale, porter, cider, wine,' followed by the general words, `or other beverages, or medical or other preparations.' The word `milk' is not mentioned at all, but plaintiffs in error say that milk is a beverage, and though not expressly named, the meaning must be drawn from the above general words, `other beverages,' in sections 1 and 4 of the act, or the words, `or any other article of merchandise,' in section 4 thereof. But to this we cannot agree. In statutory construction, general words following an enumeration of specific things are usually restricted to things of the same kind (ejusdem generis). This rule limits the application of the above general words, `or other beverages,' to things in the nature of soda or mineral waters, ale, beer, porter, cider or wine. This is not merely a technical rule, to limit or avoid the grasp of a statute; on the contrary, it is to prevent a stretch of meaning beyond the legislative intendment; it is to determine with accuracy what was in its mind; it is a very old rule of interpretation that has long proven indispensable to those engaged in getting at the meaning of what others have written."

In 36 Cyc. 1119, 1120, we find: "By the rule of construction known as `ejusdem generis,' where general words follow the enumeration of particular classes of persons or things, the general words will be construed as applicable only to persons or things of the same general nature or class as those enumerated. The particular words are presumed to describe certain species and the general words to be used for the purpose of including other species of the same genus. The rule is based on the obvious reason that if the legislature had intended the general words to be used in their unrestricted sense they would have made no mention of the particular classes. The words `other' or `any other' following an enumeration of particular classes are therefore to be read as `other such like,' and to include only others of like kind or character."

In 25 Rawle C. L. 996, we find: "General words in a statute must receive a general construction, unless there is something in it to restrain them, but in accordance with what is commonly known as the rule of ejusdem generis, where, in a statute, general words follow a designation of particular subjects or classes of persons, the meaning of the general words will ordinarily be presumed to be restricted by the particular designation, and to include only things or persons of the same kind, class or nature as those specifically enumerated, unless there is a clear manifestation of a contrary purpose."

In Lewis' Sutherland Statutory Construction (2d Ed.) Vol. II, p. 814, the author says: "When there are general words following particular and specific words, the former must be confined to things of the same kind. This is known as the rule or doctrine of ejusdem generis."

In 21 A. E. Enc. of Law (2d Ed.) p. 1012, we find: "Where general words follow particular ones, the rule is to construe the former as applicable to persons or things ejusdem generis. This rule, which is sometimes called Lord Tenterden's rule, has been stated, as to the word `other' thus: Where a statute or other document enumerates several classes of persons or things, and immediately following and classed with such enumeration the clause embraces `other' persons or things, the word `other' will generally be read as `other such like,' so that persons or things therein comprised may be read asejusdem generis with, and not of a quality superior to or different from, those specifically enumerated."

See also: Hardcastle's Construction and Effect of Statute Law, 199; Endlich Interpretation of Statutes, p. 567, sec. 405; 26 A. E. Enc. of Law (2d Ed.) 609.

It is obvious that "streets, avenues, alleys, sidewalks" are public places within the city and county, so that it would seem entirely unnecessary to specifically mention them if "other public places" is used in an all-inclusive sense and literal meaning, rather than in the light of the rule of ejusdem generis. If the charter provision was intended to apply to all injuries incurred in all places, it is entirely proper to assume that it would have been worded similar to the provisions of our statute with reference to the liability of cities of the first and second class, and towns (sec. 9157, C. L. 1921).

If "other public places," as used in the charter, is synonymous with all public places, as counsel for defendant contend, we must hold the use of the words, "streets, avenues, alleys, sidewalks," in the charter provision entirely superfluous, redundant and meaningless, adding absolutely nothing. We adopt a contrary construction, namely, that the words "other public places" are restricted to places of the same kind as those specifically quoted, supra.

[1] We are required, under another well known and universally recognized rule of construction, in ascertaining the intent of a legislative body, and the meaning of its enactments, to give effect to every word, phrase, clause, sentence and section, if it can be done, and we are not to presume that the legislative body used the language idly and with no intent that meaning should be given to its language. People v. Morgan, 79 Colo. 504,507, 246 P. 1024; 36 Cyc. 1128.

[2] Applying these rules of construction to the charter provision, in order to assist us in determining what it means, and what the legislative intent was in its enactment, as well as what places were included within its terms, it is clear that a municipal auditorium, constructed by the city and county in its ministerial or private capacity, as distinguished from its governmental or political capacity, is not included within the purview of the charter provisions under consideration. Therefore, the liability of the city and county for negligence, is, under the circumstances of this case, to be determined irrespective of the service of notice of injury. The plaintiff, in alleging service, and in her effort to explain and excuse belated service, did an unnecessary act. Baker v. Town ofManitou, 277 Fed. 232; City of Colorado Springs v. Neville,42 Colo. 219, 93 P. 1096; Cunningham v. Denver,23 Colo. 18, 45 P. 356; Canon City v. Cox, 55 Colo. 264,133 P. 1040.

In each case, notice was served, or an attempt made to excuse timely service thereof, and in each case we held that the service of notice was a condition precedent to the right to maintain an action for negligence, but in none of these cases did we hold that a notice was required under a charter or statutory provision similar to the one in the instant case. Our decision in this case does not conflict with the decision in any of the above.

As was said in the case of Gibson v. People, 44 Colo. 600,606, 99 P. 333: "The persons specified by no means exhaust the whole genus, but it is apparent that there are other persons who may occupy towards the delinquent a relation similar to that sustained by those enumerated. For example: older brothers and sisters, other blood relatives, teachers, nurses and companions, none of whom are enumerated but are of the same genus."

[3] As might well be said herein: The places specified by no means exhaust the whole genus, but it is apparent that there are other places similar to those enumerated. For example, "other public places" might include highways, lanes, places, parkways, thoroughfares, viaducts and bridges, but all such, if included in the same genus as "other public places," must be similar public places to "streets, avenues, alleys, sidewalks." The phrase, "or other public places," immediately following the specifically enumerated "streets, avenues, alleys, sidewalks" must be interpreted to include only other such places or other similar places used for animal or vehicular travel, and cannot be held to include public places to which one resorts for entertainment or amusement, such as a municipal auditorium, pavilion, theatre or amusement park.

Judgment affirmed.

MR. CHIEF JUSTICE WHITFORD and MR. JUSTICE CAMPBELL not participating.