Sherfey v. City of Brazil

• Court: Indiana Supreme Court
• Citation: Sherfey v. City of Brazil, 213 Ind. 493, 13 N.E.2d 568 (Ind. 1938)
• Decision Date: 10 March 1938
• Docket Number: 27025.
• Parties: SHERFEY v. CITY OF BRAZIL.

13 N.E.2d 568

213 Ind. 493

SHERFEY v. CITY OF BRAZIL.

No. 27025.

Supreme Court of Indiana

March 10, 1938

Appeal from Sullivan Circuit Court; Martin L. Pigg, Judge.

Rawley & Stewart, of Brazil, Charles D. Hunt, of Sullivan, and Kivett & Kivett, of Martinsville, for appellant.

Miller & Miller, of Brazil, for appellee.

SHAKE Judge.

So far as this appeal is concerned, the record presents a second amended complaint and a demurrer thereto for want of facts. Appellant is a nine year old child and appellee is the City of Brazil, Ind. It is alleged that appellee is a municipal corporation and, as such, owned and operated a public park within its corporate limits; that appellant, in company with a number of other children, visited the park on a day named and while there was severely injured when he ran into a bed of concealed fire. Had defendant been an individual or a private corporation, the complaint would undoubtedly have been sufficient as a common-law action for negligence, and with this observation, it is only necessary to quote one specific allegation thereof, to wit: 'Plaintiff further says that as a result of said injuries he was rendered wholly incapable of caring for himself or of doing anything in the way of protecting his legal interest for a period of more than sixty days after said injury, and that during said period of more than sixty days he was wholly helpless.'

The memorandum to the demurrer presents the proposition that the complaint is defective because it does not appear therein that notice was given to the city, as required by section 2, chapter 111, Acts of 1933, Burns' Ann.St.1933, § 48-8002, section 12512, Baldwin's Ind.St.1934. The second amended complaint contains no allegation of notice and no reference to that subject, beyond the statement of appellant's infancy, and his inability to protect his legal rights on account of the character of his injuries, quoted above. The court below sustained the demurrer; appellant reserved an exception and refused to plead further; judgment was rendered for appellee; and this appeal followed.

Appellant contends that the statute referred to above is not applicable to the case because (1) properly construed, it does not require notice of injuries sustained in municipal parks; and (2) that, if it does apply to public parks, it is void in so far as it attempts to require notice of injuries actionable at common law.

Section 48-8002, Burns' 1933, section 12512 Baldwin's Ind.St.1934, required notice to the municipalities within sixty days, 'in any instance where the accident or occurrence complained of and the resulting damage alleged to have been caused by or to have arisen from any defect or other condition in or adjacent to any street, alley, public place, bridge, stream, canal, body of water, drain, sewer, or structure or appliance of any character.' (Our italics.) Appellee contends that the words 'public place,' as used in this statute, are broad enough to include public parks, while appellant says that applying the rule of ejusdem generis, the term 'public place' must be limited in its application to the kind or class of places previously mentioned in the act; namely, streets and alleys.

A clear statement of the place of the rule of ejusdem generis in the construction of statutes and of the limitations on its usefulness is found in the case of United States Cement Co. v. Cooper, 1909, 172 Ind. 599, 609, 88 N.E. 69, 72. This court said:

'In the construction of statutes or written contracts the doctrine of ejusdem generis is applicable, not in all, but in a certain class of cases when general words are not accorder their usual and ordinary meaning, but restricted to things of the same kind or genus as those designated by the particular words. * * *

'The office of the rule, however, like that of all other canons on construction, is to afford aid to the court in developing the true meaning of the statute, and cannot be employed to restrict the operation of an act within narrower limits than was intended by the lawmakers. * * *

'It is never used in an arbitrary sense, but operates as a sort of suggestion to the judicial mind that, when specific words of definite and certain meaning in a statute are deemed advisable by the framers, it may be that they intended the general words to extend only to persons, or objects, of the same kind or class as those embraced within the particular words, or they might not have gone to the pains of any specific enumeration. Whether or not the doctrine should be applied in any case depends largely upon the character and contents of the act as a whole, having due regard for that primary rule of construction that the object of a law must be sought from the entire act, including the title, and from a consideration of the evil to be remedied, the state of public sentiment existing at the time of the passage of the law, and the general purpose of the act as derived from a consideration of every section. If the general purpose of the legislation clearly appears from a study of all the parts, that purpose cannot be defeated or limited by the doctrine we are considering.'

It is likewise true that in ascertaining the legislative intent as to a statute, the courts may take into consideration other acts in pari material, whether passed before or after the act in question. Johnson v. City of Indianapolis et al., 1910, 174 Ind. 691, 699, 93 N.E. 17; Hyland et al. v. Rochelle, 1913, 179 Ind. 671, 676, 100 N.E. 842. And the introduction of a new word or words into a statute indicates an intent to cure a defect in and suppress an evil not covered by the former law. It will be presumed in such a case that the Legislature intended to change or add to the existing law. State ex rel. v. Board of Election Commissioners of City of Tipton et al., 1925, 196 Ind. 472, 482, 149 N.E. 69.

The first statute in this state on the subject of notice to municipalities of claims for damages to persons or property was enacted in 1907. It provided for such notice growing out of 'any defect in the condition of any street, alley, highway, or bridge.' Acts 1907, c. 153, p. 249, Burns' 1926, § 11230. This act remained in effect until 1933, when it was supersed by the act with which we are here concerned. Acts 1933, c. 111, § 2, p. 706, Burns' 1933, § 48-8002, section 12512, Baldwin's Ind.St.1934. It will be observed that for the words, 'street, alley, highway, or bridge,' contained in the act of 1907, there was substituted by the act of 1933, the words, 'street, alley, public place, bridge, stream, canal, body of water, drain, sewer, or structure or appliance of any character.' (Our italics.) While the word 'highway,' as used in the act of 1907, is dropped in the act of 1933, we do not deem this an important circumstance, since the streets of a municipality in this state are public highways. The State v. Moriarty, 1881, 74 Ind. 103; Gribben v. City of Franklin, 1911, 175 Ind. 500, 94 N.E. 757. So, if the doctrine of ejusdem generis is to be strictly applied to the use of the words 'public place,' in the act of 1933, we find ourselves in conflict with the above rule heretofore enunciated by this court that the introduction of a new word into a statute indicates an intention to cure a defect in the former.

We must keep in mind, also, that the general words 'public place,' in the act of 1933, are both preceded and followed by words of a more limited and restricted meaning. Going before them are the words 'street' and 'alley,' and they are followed by 'bridge, stream, canal, body of water, drain, sewer, or structure or appliance of any character.'

'* * * Where general words occur at the end of a sentence they refer to and qualify the whole; but if they are in the middle of the sentence, and obviously apply to a particular portion of it, they are not to be extended to what follows them.' 59 C.J. § 580, p. 980.

It is of interest to note, also, that since appellant's cause of action accrued, the act of 1933 has itself been superseded by another statute on the subject. The act of 1935, Acts 1935, c. 80, p. 235, Burns' 1933, § 48-8001, Pocket Supp. section 12515-1, Baldwin's Supp. May 1935, has gone farther than the act of 1933, by providing, generally, that in all actions against a municipality for negligence, willfulness, nuisance, or other tort, the notice required shall contain a general description of the place, etc., where the thing complained of occurred. While this is not a controlling circumstance, it serves to indicate the legislative intent when the 1933 General Assembly replaced the act of 1907 with a statute of broader scope.

Appellant relies largely upon the case of City and County of Denver v. Taylor, 1930, 88 Colo. 89, 292 P. 594, 72 A.L.R. 833. In that case the Colorado Supreme Court had before it for interpretation a statute of a similar character to ours, which required notice of injuries occurring on any of the 'streets, avenues, alleys, sidewalks or other public places' of the city. (Our italics.) The court held the doctrine of ejusdem generis applicable to the clause 'or other public places,' and that notice was not required of an injury sustained in a municipal auditorium, since an auditorium was not a place of the same kind or class as streets, avenues, alleys, and sidewalks. While that case is well considered, we think it is clearly distinguishable from the one which we are considering here. In the Colorado case the words 'or other public places' are at the end of the clause, and are not followed by any other operative words, such as we find in our act of 1933. Such a situation clearly presents one for the application of the rule of ejusdem generis. And it may also be observed that in considering the Denver case the court was not aided,...