City of Tulsa v. Mcintosh

• Citation: 284 P. 875,1930 OK 71,141 Okla. 220
• Decision Date: 11 February 1930
• Docket Number: Case Number: 18738
• Parties: CITY OF TULSA v. McINTOSH.
• Court: Supreme Court of Oklahoma

1930 OK 71

284 P. 875

141 Okla. 220

CITY OF TULSA v. McINTOSH.

Case Number: 18738

Supreme Court of Oklahoma

Decided: February 11, 1930

Syllabus

¶0 1. Municipal Corporations--Negligence in Care of Streets--Common-Law Liability.

Cities of this state are responsible for their acts of negligence in the care of streets as a common-law liability independent of any express statutory declaration.

2. Same--City Charter Provision Requiring Notice of Injury to Be Served in 30 Days not Effective to Bar Action Against City.

In an action against the city of Tulsa to enforce a liability such as is set out in the preceding paragraph, the defense that plaintiff failed to serve a notice of injury complained of within 30 days, pursuant to section 9, art. 11, of the home rule charter of said city and that by reason thereof this action is barred, is not available, for such charter provision is essentially in the nature of a special statute of limitation and is in violation of article 5, sec. 46, subd. (z), and article 5, sec. 59, of Oklahoma Constitution.

3. Same--Instruction on Extent of Responsibility for Negligence Held Correct.

Instruction No. 16 herein, advising the jury to what extent one guilty of negligence is responsible to a party injured thereby, examined, and held substantially correct. C., R. I. & P. Ry. Co. v. Brazzell, 40 Okla. 460, 138 P. 794.

Error from District Court, Tulsa County; Luther James, Judge.

Action by Andrew M. McIntosh against the city of Tulsa for damages arising out of personal injuries done to plaintiff's infant son. Judgment for plaintiff, and defendant appeals. Affirmed.

H. O. Bland and Harry L. S. Halley, for plaintiff in error.

A. F. Moss and H. R. Young, for defendant in error.

BENNETT, C.

¶1 Fred McIntosh, 11 years old, was injured on May 22, 1918, by the explosion of a dynamite cap. The injuries necessitated the amputation of the thumb, the first, second, and third fingers of his left hand, and, in addition, the boy lost the sight of one eye and suffered a very serious injury to the other eye. Certain contractors who were doing work for the city left their box of tools, in which there was a large number of dynamite caps on the street, exposed, and this boy, among other school children, on the way to and from school, was attracted to the tool box and secured many of the dynamite caps and in playing with the same he tried to light one end of one of the dynamite caps and the injury resulted.

¶2 On June 24, 1918, Fred, by Andrew M. McIntosh, his father and next friend, by O'Meara, Bush & Moss, their attorneys, filed with the proper officers of the city of Tulsa a written statement showing the age, name, and residence of Fred McIntosh, and the nature, time, and place and extent of the injury, and the circumstances leading up to the same, and alleging damages of $ 30,000.

¶3 Soon thereafter suit for damages for said injuries against the city and others was instituted by Fred McIntosh, by his next friend and father, resulting in judgment for the minor, which, upon appeal, was affirmed by this court. Tulsa v. McIntosh, 90 Okla. 50, 215 P. 624. The present action is brought by Andrew M. McIntosh against same defendants to recover consequential damages which plaintiff suffered by reason of the injuries to his minor son, including $ 1,000 alleged to have been expended for medical, hospital, and nurses' bills in the necessary treatment of said son, and also for the value of services of his said son during minority.

¶4 There was a verdict and judgment in the trial court for plaintiff for $ 1,500 from which the city of Tulsa appeals.

¶5 Defendant assigns 30 alleged errors of the court, but on page 46 of its brief appears this language:

"The real question in the appeal is whether or not the charter provision of the city of Tulsa, which required the filing of claims for damages against the city to be made to be filed within 30 days after the injury occurred, is a bar to the plaintiff's cause of action, where he did not file the claim until a year after the injury to his son, Fred McIntosh, for whose loss of services, hospital care, doctors' bills, and medicine bills he has sought to recover for.

"The record unquestionably shows that the claim of A. M. McIntosh was not filed until May 20, 1919, as is shown at page 99 of the case-made. The record further shows that the claim of Fred McIntosh for his injuries was filed on May 24, 1918, case-made, page 94. The trial judge evidently took the position that it was not necessary for any claim to be filed by the father, and the only question that he submitted was whether or not Fred McIntosh's claim was properly filed, which is instruction No. 3."

¶6 This frank and proper statement then leaves for our determination the question whether or not the failure of the father (plaintiff) to file a written notice of injury, according to the charter provisions of the city of Tulsa, within 30 days, is a bar to his recovery. While this action might be determined upon other grounds, nevertheless the constitutionality of the charter provision of defendant, purporting to require notice, is here assailed, and since the question involved is of very great importance, it has been considered advisable to squarely meet the issue thus raised; otherwise this question will be presented again and again for attention.

¶7 It is worth noting that the validity of this identical charter provision has been twice presented to this court ( City of Tulsa v. Wells, 79 Okla. 39, 191 P. 186, and City of Collinsville v. Brickey, 115 Okla. 264, 242 P. 249), but these cases passed up the question and left it for future determination.

¶8 The charter provision in question is section 9, art. 11, of the city of Tulsa, which charter was adopted by the people of that city under the provisions of article 18, sec. 3 (a), of the Oklahoma Constitution, and said section is as follows:

"Before the city of Tulsa shall be liable for damages of any kind the person injured, or some one in his behalf, shall give the mayor or city auditor notice in writing of such injury within 30 days after the same has been received, stating specifically in such notice when, where, and how the injury occurred and the extent thereof. * * *"

¶9 The assault on this section is as follows:

(1) That the limitation therein provided was not within the power of the city to enforce, for that it is in violation of article 5, sec. 46, subdivision (z) of the Oklahoma Constitution, which is as follows:

"Limitations upon power of Legislature to pass local or special laws. The Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law authorizing: * * *

"(z). For limitation of civil or criminal actions."

(2) That the same is in violation of section 59, art. 5, of the Constitution of Oklahoma, which is as follows:

"General laws to have uniform operation. Laws of a general nature shall have a uniform operation throughout the state, and where a general law can be made applicable, no special law shall be enacted."

(3) Because said provision of the charter of the city of Tulsa conflicts with and is an attempt to supersede the general statutes of the state of Oklahoma upon a matter of state and public concern. Section 3 (a), art. 18, Okla. Const.

¶10 The view that we entertain makes it necessary for us to discuss only the first and second propositions. It will be observed that article 5, sec. 46, subd. (z) of our state Constitution places a specific limit upon the power of the state Legislature to pass local or special laws for the limitation of civil or criminal actions.

"The Constitution of each state, so far as it is consistent with the provisions of the federal Constitution, is the fundamental law of the state, is part of its supreme law, and acts passed by the Legislature inconsistent therewith are invalid. ( East St. Louis v. Amy, 120 U.S. 600, 7 S. Ct. 739, 30 L. Ed. 798.) A state Constitution is also binding on the courts of the state, and on every officer and every citizen. Any attempt to do that which is prescribed in any other manner than that prescribed, or to do that which is prohibited, is repugnant to that supreme and paramount law, and invalid. ( Norwalk St. Co.'s Appeal, 69 Conn. 576, 37 A. 1080, 38 Atl. 708, 39 L. R. A. 794.) Therefore it is the undoubted duty of the Legislature to act in subordination to the state Constitution ( State of Montana v. Rice, 204 U.S. 291, 27 S. Ct. 281, 51 L. Ed. 490), and an act which the state Constitution clearly prohibits is beyond the power of the Legislature, however proper it might be as a police regulation but for such prohibition. ( State v. Froehlich, 115 Wis. 32, 91 N.W. 115, 95 A. S. R. 894, 58 L. R. A. 757.) The limitations on legislative action may be by implication. Thus, where a Constitution prescribes the qualifications of electors, the Legislature cannot require additional qualifications. ( Rison v. Farr, 24 Ark. 161, 87 Am. Dec. 52, and note.) Political subdivisions of the state are similarly bound by the provisions of the state Constitution." 6 R. C. L. p. 40, par. 34, and cases cited.

"It has also been said that a Constitution is to be interpreted by the spirit which vivifies, and not by the letter which killeth ( Downes v. Bidwell, 182 U.S. 244, 21 S. Ct. 770, 45 L. Ed. 1088), and that a written Constitution is to be interpreted by the same spirit in which is was produced." ( Wells v. Missouri P. R. Co., 110 Mo. 286, 19 S.W. 530, 15 L. R. A. 847.) 6 R. C. L. p. 47, par. 40.

"It is a fundamental canon of construction that a Constitution should receive a liberal interpretation, especially with respect to those provisions which were designed to safeguard the liberty and security of the citizen." ( Prigg v. Pennsylvania, 16 Pet. 539, 10 L. Ed. 1060.) 6 R. C. L. p. 49, par. 44.

"Words or terms used in a Constitution, being dependent on ratification by the people, must be understood in the sense most obvious to the common understanding at the

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