Shirley's Estate, In re, 33911

• Decision Date: 11 May 1956
• Docket Number: No. 33911,33911
• Citation: 76 N.W.2d 749,162 Neb. 613
• Parties: In the Matter of the ESTATE of Paul V. SHIRLEY, Deceased. Margaret STARMAN, Appellee, v. Mary F. SHIRLEY, Executrix of the Estate of Paul V. Shirley, Deceased, Appellant.
• Court: Nebraska Supreme Court

Page 749

76 N.W.2d 749

162 Neb. 613

In the Matter of the ESTATE of Paul V. SHIRLEY, Deceased.

Margaret STARMAN, Appellee, v. Mary F. SHIRLEY, Executrix of the Estate of Paul V. Shirley, Deceased, Appellant.

No. 33911.

Supreme Court of Nebraska.

May 11, 1956.

Syllabus by the Court.

1. When an ordinance or statute is susceptible of two constructions, under one of which it is clearly valid, while under the other its validity may be doubtful, that construction which makes sure its validity will ordinarily be given.

2. In construing a statute or ordinance the legislative intent is to be gathered from the necessity or reason for its enactment, and its several provisions should be construed together, in the light of the general objects and purposes of the act, so as to give effect to the main intent.

3. The maxim, expressio unius est exclusio alterius, means that where a statute or ordinance enumerates the things upon which it is to operate, or forbids certain things, it is to be construed as excluding from its effect all those not expressly mentioned, unless the legislative body has plainly indicated a contrary purpose or intention.

Kennedy, Holland, DeLacy & Svoboda, Omaha, for appellant.

Young, Holm & Miller, Edmund D. McEachen, Omaha, for appellee.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE and BOSLAUGH, JJ.

SIMMONS, Chief Justice.

This action began as a claim against the estate of Paul V. Shirley, deceased. Claimant was employed as a domestic in the home of deceased during his lifetime. She fell on stairs in the home while engaged in her employment and suffered severe injuries. Subsequent thereto Mr. Shirley died. Claimant filed her claim against the estate in county court. It was there denied. Claimant appealed to the district court.

There the claim was tried, in essence, as an action in tort for damages. For convenience we here designate claimant as plaintiff and the executrix of the estate as defendant.

Issues were made in the district court and trial was had. Defendant moved for a directed verdict at the close of plaintiff's case-in-chief, and again at the close of all the evidence. These motions were overruled. At the close of the evidence on motion of plaintiff, the trial court ruled that the only issue to be submitted to the trial court was the amount of the recovery. This motion rested on the failure of the defendant's decedent to maintain a handrail on the stairway which plaintiff claimed was required by an ordinance of the city of Omaha. There is some doubt as to the clarity of the instructions in that regard; however, the parties here take the position that that was the only issue submitted to the jury. The result was a substantial verdict for the plaintiff.

Subsequent to the filing of a motion for judgment notwithstanding the verdict or in the alternative for a new trial, and prior to a ruling thereon, defendant moved the court for premission to amend the answer so as to challenge the constitutionality of the ordinance, if applicable to private residences, as violative of the Fourteenth Amendment of the Constitution of the United States and the Constitution of Nebraska as an unwarranted exercise of the police power. The court granted the motion and the amendment was made. Thereafter the court overruled the motion for judgment notwithstanding the verdict and for a new trial. Defendant appeals.

We reverse the judgment of the trial court and remand the cause with directions to render judgment for the defendant.

The stairway involved was between the second and third floors of the Shirley home. At the top, the stair opening was surrounded by bannisters and railing, save for the opening at the steps. The first steps below the third-floor level were winders of uneven width so as to permit a 90~ turn in the stairs. There were then rectangular steps followed by winders permitting another 90~ turn followed by rectangular steps to the second floor.

The stairway was enclosed by plastered walls. There was no handrail on either side of the enclosed stairway.

Plaintiff testified that she started down the stairway from the third to the second floor and when 'down about 2 or 3 steps' her 'foot sort of slid and caught and it threw me forward and slightly to the right'; that she did not know what caused her to start falling; and that she fell 'sort of to the right wall and then grabbed toward the wall to try to break my fall and there was nothing to hang onto and I went down head first.'

Plaintiff alleged that the stairway was dangerous and unsafe in that it had no handrail, bannister, or other safety device on either of the stairway walls; that the failure to provide a handrail was in violation of section 6-11.3(i) of Ordinance 14924 of the city of Omaha; that by reason of the absence of the handrail or other safety device she was unable to avert or break her fall; and that she was injured as a proximate result of that failure and negligence.

Defendant by answer admitted the employment; denied that the stairway was unsafe; denied negligence; alleged that plaintiff's injuries were caused solely by her own negligence; and pleaded assumption of risk.

The cause was tried on those issues. The question of constitutionality of the ordinance was presented as above recited.

The defendant assigns error as to the rulings on the various matters and in the admission of evidence.

The first question to be determined here is whether or not the ordinance is applicable to a stairway in a private residence and, if so, whether it is constitutional as a proper exercise of the police power.

We have held: 'The police power is an attribute of state sovereignty, and, within the limitations of state and Federal Constitutions, the state may, in its exercise, enact laws for the promotion of public safety, health, morals, and generally for the public welfare.' State v. Geest, 118 Neb. 562, 225 N.W. 709.

Obviously a serious question is raised as to whether or not a requirement by ordinance for a handrail on a stairway in a private hom is a valid exercise of the police power. However, before we reach that question, there comes the preliminary question as to whether or not the ordinance involved makes that requirement.

We go to the second question in the light of the rule that when an ordinance or statute is susceptible of two constructions, under one of which it is clearly valid, while under the other its validity may be doubtful, that construction which makes sure its validity will ordinarily be given. Union Stock Yards Co. v. Nebraska State Ry. Commission, 103 Neb. 224, 170 N.W. 908, 172 N.W. 528.

We consider the question in the light of the rule that in construing a statute or ordinance the legislative intent is to be gathered from the necessity or reason for its enactment, and its several provisions should be construed together, in the light of the general objects and purposes of the act, so as to give effect to the main intent. Anstine v. State, 137 Neb. 148, 288 N.W. 525.

Parts of the Building Code ordinance were introduced in evidence. Article 6 of the code relates to 'Classification of Building.' Section 6-6.1 provides: 'All buildings and structures now existing or hereafter erected, altered or enlarged, shall be classified as follows and shall be subject to the special provisions relating to each class, and the general provisions relating to all classes.

'Special Class: Churches (The provisions covering the requirements for buildings in Class VI shall apply).

'Class I. Office buildings, hotels, clubs and rooming houses (sleeping accommodations more than ten people).

'Class II. Theaters, moving picture and vaudeville houses.

Class III. Apartments, tenements and residences.

'Class IV. Schools, hospitals, homes for sick and aged, asylums, jails, police stations and homes for children and imbeciles.

'Class V. Storage, sales, department stores, manufacturing and garages.

'Class VI. Lodge halls, dance halls, banquet and assembly halls and skating rinks.

'Class VII. Miscellaneous, such as grand stands, athletic and amusement parks, stables and sheds.'

Each classification is given a separate treatment in the article. Both parties here assume that the building falls within Class III. Under 'Class III' there are 30 separately numbered sections dealing with construction in relation to height; live loads; habitable rooms; pantries, bathrooms, and water closets; bay windows and light shafts; frame buildings; quantity of air for each person; subdividing habitable rooms; basement or cellar rooms in new tenements and existing tenements; basement walls and floors; entrance halls; stair halls; dividing walls between apartments; bay windows, courts, and vent shafts; bottom of shafts, courts, and yards; stairways; stair treads and risers; fire escapes and their obstructions; porches; access to roof; access to rooms through bedrooms; windows in water closets; bathroom requirements; sinks; buildings damaged by fire; frame tenements; and unsanitary conditions. Of these provisions, 6 are related by the language of the section to all buildings in the class, 22 are related to tenements or apartments, and 2 have provisions in part relating to tenements.

Section 6-6.61 deals with stairways. Concededly it is limited to existing and new tenements. It sets out the requirements for stairways in such structures and includes therein requirements for handrails on enclosed and open stairways.

Defendant contends that here was the place to put requirements as to handrails on stairways in private residences, had that been the intention, and that the absence of such requirement negatives such an intent.

The rule is: The maxim, expressio unius est exclusio alterius, means that where a statute or ordinance enumerates the things upon which it is to operate, or forbids certain things, it is to be construed as excluding from its effect all those not expressly mentioned, unless the legislative body has...