Fisher v. City and County of Denver, 16514

• Decision Date: 18 December 1950
• Docket Number: No. 16514,16514
• Citation: 123 Colo. 158,225 P.2d 828
• Parties: , 23 A.L.R.2d 963 FISHER v. CITY AND COUNTY OF DENVER.
• Court: Colorado Supreme Court

Page 828

225 P.2d 828

123 Colo. 158, 23 A.L.R.2d 963

FISHER v. CITY AND COUNTY OF DENVER.

No. 16514.

Supreme Court of Colorado, en Banc.

Dec. 18, 1950.

Menin & Conry, Denver, for plaintiff in error.

J. Glenn Donaldson, Abe L. Hoffman Ty R. Williams, Denver, for defendant in error.

ALTER, Justice.

George A. Fisher brought an action against the City and County of Denver to recover judgment for damages for personal injuries allegedly received by him as a result of a fall on a crosswalk in the city.

The city appeared, filed a motion to dismiss the action, which motion was granted, and judgment was entered in its favor for costs. To review the judgment plaintiff brings the cause here by writ of error. $In the complaint filed in the district court on December 30, 1949, it is alleged that through the negligence and carelessness of the city in maintaining its sidewalks, defendant, on August 28, 1949, at about 11 o'clock P.M., while walking on the sidewalks, stepped into a hole therein, fell and sustained serious injuries; that as a result thereof he suffered great pain, incurred medical expenses, and sustained a loss of income, all to his damage in the sum of $2,000. It is further alleged that pursuant to the provisions of section 231, chapter 163, '35 C.S.A., notice was duly served upon the 'clerk of the City and County of Denver as provided by law,' a copy of which notice is attached to the complaint.

It is further alleged:

'That a Notice in writing was given to the Mayor of the City and County of Denver on the 15th day of September, 1949 in the form of a Complaint and Summons, to which there was attached the Notice of Injuries referred to in paragraph 4 hereof, giving the details of said injuries, which was served on Mae Hynes, Clerk and Recorder & Ex-Officio Clerk of the City & County of Denver, the agent and appointee of the said Mayor and agent for service for the City and County of Denver. That the Mayor acknowledged receipt thereof by reason of an Answer being filed on the 5th day of October, 1949 on behalf of the City and County of Denver, which Answer showed the address of the defendant to be 350 City and County Building, Denver, Colorado, which is the office of said Mayor. That said Answer admitted receipt of the Notice of Injuries.

'That by reason thereof, the Mayor of the City and County of Denver received said Notice in writing within 60 days of the date said damages and injury occurred, pursuant to Section 158, Article VIII of the Charter of the City and County of Denver. A copy of said Complaint and Summons and Answer is on file in the office of the clerk of the District Court of the City and County of Denver under No. A66726, and is part of the records of this Court.'

Attached to the complaint as Exhibit A is a 'Notice of Injuries,' addressed 'To the Clerk of the City and County of Denver, State of Colorado:'

The record discloses that summons was issued by the attorneys for plaintiff on December 29, 1949, and the return thereof shows service on the 'City and County of Denver, a Municipal Corporation, by handing to and leaving with Quigg Newton, it's Mayor, Denver, January 3, 1950.'

On January 23, 1950, the City and County filed its motion to dismiss upon the ground that it affirmatively appears that plaintiff failed to 'serve' notice of his claim upon the Mayor of the City and County of Denver, pursuant to and as required by section 158 of the charter of said city. The motion to dismiss was heard by the district court on the 3rd day of April, 1950, whereupon the court granted the same and gave plaintiff leave to file an amended complaint. Thereafter and on April 11, 1950, plaintiff elected to stand upon his complaint, whereupon judgment of dismissal was entered in favor of defendant with costs.

The only point specified as error is the granting of the motion to dismiss.

Section 158, Article VIII of the Charter of the City and County of Denver provides: 'Before the city and county shall be liable for damages to any person injured upon any of the streets, avenues, alleys, sidewalks or other public places of the city and county, the person so injured or someone 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 the injuries occurred and the extent thereof.' (Italics ours.)

It may be said that the purpose of requiring notice of injuries, as provided in section 158, supra, is two-fold: First, in order that the defendant may have full opportunity of investigating: the scene of the accident; the alleged cause thereof; the extent of the injuries; the correction of defective conditions, if such exist, so as to avoid dissipation of the city's assets in payment of claims alleged due to the city's negligence; and, second, so that the city, having had a full opportunity of investigation, may determine therefrom its liability and settle the same without incurring needless expense of litigation.

Section 158, supra, is mandatory in that it requires, 'the person so injured or someone on his behalf, shall, * * * give the mayor notice, in writing of such injuries * * *.' The notice attached to the complaint is directed 'To the Clerk of the City and County of Denver, State of Colorado,' and plaintiff alleges that the notice was 'served,' without specifying the date, on the 'Clerk of the City and County of Denver' as provided by law and cites section 231, chapter 163, '35 C.S.A., as the statutory authority for so doing. We have held that section 158, supra, entirely supersedes said section 231 so far as requiring notice relative to injuries occurring on the 'streets, avenues, alleys, sidewalks or other public places' of the City and County of Denver. Horst v. City and County of Denver, 101 Colo. 284, 73 P.2d 388. This attempted 'service,' as alleged by plaintiff, was ineffectual for any purpose whatever. The mayor, under the provisions of said section 158, is the person to whom notice must be given.

Plaintiff further alleges that a notice such as is required by said section 158 'was given to the Mayor of the City and County of Denver on the 15th day of September, 1949, in the form of a Complaint and Summons to which there was attached the Notice of Injuries referred to in paragraph 4 hereof * * * which was served on Mae Hynes, Clerk and Recorder & Ex-officio Clerk of the City and County of Denver, the agent and appointee of the said Mayor and agent for service for the City and County of Denver.' He alleges further that the mayor acknowledged receipt thereof by reason of an answer filed in said action, in which the City and County of Denver was properly named as defendant. The mayor was not a party to this action, and as such official did not appear therein. It should be observed that the 'Notice of Injuries' attached to the summons and complaint so 'served' on said Mae Hynes was addressed 'To the Clerk of the City and County of Denver, State of Colorado' rather than to the mayor of said city and county. It is this service upon said Mae Hynes that plaintiff contends constitutes the giving of...