City & County of Denver v. Taylor

Mr. Justice Butler

concurring.

I concur in the affirmance of the judgment. Though I do not dissent from the reason given in the principal opinion, it seems to me that there is a more satisfactory reason for affirmance.

Upon conflicting evidence, the jury found that during the entire period of sixty days immediately following the accident the plaintiff was in such physical or mental condition that she was unable to give notice, or cause notice to be given, within the time specified in the charter. She gave notice after the expiration of the sixty days. There are decisions denying recovery in such circumstances. See Baker v. Manitou (C. C. A.), 277 Fed. *97 232 , and cases there cited. But reason, and the weight of authority, it seems to me, are to the contrary.

In those cases with which we heretofore have dealt, the injured person was not physically or mentally unable to give notice; therefore, the question now before us was not presented. The reason assigned for the ruling in the Baker case, supra, and similar cases, is that the legislature has made no exception in favor of one physically and mentally unable to give notice, and the courts can make none. But this court has given a reasonable construction to statutes requiring notice, and in certain circumstances has upheld a recovery where the literal terms of the statutes have not been strictly complied with. Thus, a statute required that no action against a city of the second class shall be maintained on account of its negligence, unless written notice of the injury is given to the clerk of the city within a specified time. No exception is mentioned. Within the time limit the person injured sued the city, and a copy of the summons, with the complaint attached, was served by delivering the same to the mayor, not to the city clerk. Shortly thereafter the mayor handed the copies to the clerk, and the matter was thereafter reported by the mayor to the city council. The plaintiff dismissed that action and commenced another, in which she alleged that she had given notice. No other notice was given. We held that such service was a sufficient compliance with the statute. Canon City v. Cox, 55 Colo. 264 . The Workmen’s Compensation Act requires, in terms as peremptory as the charter provision in question, that notice of the injury must be filed within a specified time, or the right to compensation “shall be wholly barred.” It makes no exception in case of war, nor does it provide for waiver or estoppel. In Colorado Fuel & Iron Co. v. Industrial Commission, 73 Colo. 579 , 216 Pac. 706 , we held that the failure of the claimants to file the notice within the statutory time did not bar a recovery where, during the entire time within which notice was required to be given, the claimants lived in a for *98 eign country which was at war with the United States; in other words, where, by reason of the war, it was impossible to file the notice. We have held also that snch notice may be waived, and that in certain circumstances a defendant would be estopped from setting up. absence of notice as. a defense. Kettering Mercantile Co. v. Fox, 77 Colo. 90 , 234 Pac. 464 ; Greeley Gas & Fuel Co. v. Thomas, 87 Colo. 486 , 288 Pac. 1051 .

In the law of insurance, where the contract expressly exempts the insurer from liability if the required notice of loss is not given within the stipulated time, it is the general rule that where, because of circumstances and conditions surrounding the transaction, the giving of notice within the time specified becomes impossible, it will be excused. 14 R. C. L. p. 1333. In London Guarantee & Accident Co. v. Officer, 78 Colo. 441 , 242 Pac. 989 , the contract required proofs of claim to be furnished within a stipulated time. The proofs were not furnished within that time, but were furnished “as soon as reasonably possible.” We held this to be sufficient. Other illustrations of the application of the principle will readily occur to the reader.

A statute of Illinois required notice of injury to be given to a municipality within six months from the date of injury. In McDonald v. Spring Valley, 285 Ill. 52 , 120 N. E. 476 , it was held that the failure to give such notice within the time specified did not bar an action by one who, by reason of her extreme minority — she was seven years of age — was mentally and physically incapable of giving the statutory notice. And see Doerr v. Freeport, 239 Ill. App. 560 . The New York Court of Appeals made the same ruling in the case of a child five years of age. Murphy v. Fort Edward, 213 N. Y. 397 , 107 N. E. 716 . But the rule is not confined to cases of infants. It extends to all cases where the plaintiff has been rendered physically or mentally incapacitated to give the notice, or to cause it to be given, within the required time., particularly where, as here, such incapacity is caused by the de *99 fendant’s own negligence. In Green v. Port Jervis, 55 App. Div. 58 , 66 N. Y. Supp. 1042 , the court expressed its views in the following forceful language, which is quoted with approval in Terrell v. Washington, 158 N. C. 281, 299 , 73 S. E. 888 : “If compliance with the condition is rendered temporarily impossible by the wrongful act of the defendant, it would be monstrous to allow the defendant to- assert that fact as a defense to the action. The requirement of notice necessarily presupposes the existence of an individual capable of giving it, and not one deprived of that power by the operation of the very wrong to be redressed. That the defendant should be permitted to take advantage of its own wrong is clearly not within the purview of the law.” See also: Forsyth v. Oswego, 191 N. Y. 441 , 84 N. E. 392 ; Walden v. Jamestown, 178 N. Y. 213, 70 N. E. 466 , approving and adopting the reasoning’ in the opinion in the same case in 79 App. Div. 433 ; Winter v. Niagara Falls, 190 N. Y. 198 , 82 N. E. 1101 ; Hartsell v. Asheville, 166 N. C. 633 , 82 S. E. 946 .

In an elaborate note, 31 A. L. R. 619, published in 1924, it is said: “There is considerable authority to the effect that failure to give notice of an accident or injury within a specified time thereafter as a condition of holding a municipality liable therefor does not necessarily bar recovery, since failure to comply with the literal terms of the statute may be excused by showing extenuating circumstances, such, for example, as physical or mental incapacity, etc., during the statutory period.” Many cases are cited in support of the statement. On page 625 it is said that there have been “a few decisions” to the contrary, citing cases.

Some of the cases holding’ an injured person to a strict compliance with the statutory provision concerning notice, and recognizing no excuse for noncompliance, stress the fact that in those cases the liability of the municipality was purely statutory, from which it is argued that no one has a right to object to a statutory modification *100 thereof, or the imposition of a condition precedent. See note, 31 A. L. R. 627. A distinction between such a case and one where the liability is not created by statute, but exists at common law, does not seem to be wholly unjustifiable. In the former, the right of action owes its very existence to the statute; whereas in the latter, the legislature seeks to impose a restriction upon a right existing independently of statute. The Denver auditorium was constructed as a place of resort, instruction and entertainment for its citizens, and at the time of the accident a flower show was being held therein. In constructing and maintaining the building, the municipality acted in its private, corporate and proprietary capacity, not in its governmental capacity; hence the liability of the municipality is a common law liability. Denver v. Spencer, 34 Colo. 270 , 82 Pac. 590 ; Denver v. Davis, 37 Colo. 370 , 86 Pac. 1027 ; Canon City v. Cox, 55 Colo. 264 , 133 Pac. 1040 ; Denver v. Maurer, 47 Colo. 209 , 106 Pac. 875 ; Denver v. Dunsmore, 7 Colo. 328 , 3 Pac. 705 ; Barnes v. District of Columbia, 91 U. S. 540 , 23 L. Ed. 440 ; Randolph v. Springfield, 302 Mo. 33 , 257 S. W. 449 ; Terrell v. Washington, 158 N. C. 281 , 73 S. E. 888 . To be valid, the restriction upon the .right to recover must not be unreasonable. Randolph v. Springfield, supra; McDonald v. Spring Valley, 285 Ill. 52 , 120 N. E. 476 ; Hughes v. Fond du Lac, 73 Wis. 380 , 41 N. W. 407 . To require an injured person to do what is impossible for him to do would be unreasonable, and we cannot assume that such was the intent of the framers of the charter.

The Constitution of Colorado (art. 2, §6) provides, “That courts of justice shall be open to every person, and a speedy remedy afforded for every injury to person, property or character * * *.” The Constitution of Missouri has substantially the same provision, and its statute concerning notice is similar to the provision in the Denver charter. In Randolph v. Springfield, 302 Mo. 33 , 257 S. W. 449 , it was held that a failure to give the notice within the statutory time does not relieve a munici *101 pality from liability to one who, by reason of his physical or mental disability, is unable to give the notice within the specified time. It was said that to so construe the statute as to bring about that result would be unthinkable, ' especially where such inability was the result of “the negligence of the city which injured him,” and that such construction would bring the statute into conflict with the Constitution. The court also said: “In the case at bar, the plaintiff had a right of action at common law as soon as she was injured by the city. No act of the Legislature would be valid which clogged or encumbered her right to enforce such common-law right with impossible conditions, such as to require her to give notice when she was physically or mentally incapable of so doing, or other conditions impossible of performance, without her fault.”

To adopt the strict rule, which we should decline to do, would be equivalent to offering this suggestion to municipalities : If you are negligent on any occasion, see to it that your negligence is sufficiently gross to insure the complete physical and mental disability of the victim; for by doing so, you will avoid the necessity of paying damages, which you would b© required to pay if the victim were left in possession of his faculties.

The affirmance of the judgment is in accordance with both law and justice.