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(- Mo. -, 257 8. W. 449.) R. Co. 280 Mo. 576, 219 S. W: 386, would be, under the circumstances, and Wolf v. Kansas City, 296 Mo. reasonable requirement. The 95, 246 S. W. 236, 22 N. C. C. A. word 'until might be so construed 174, we held that, under § 1, p. 545, that, if suit were brought the day

, of the Laws of 1913, now § 8904, after the injury, without such noRev. Stat. 1919, which required no-. tice, it could not be maintained for tice to be given to cities of over 100,-' an instant, but would abate auto000 within ninety days from the ac- matically. It would then express cident, giving the same information the intention of the legislature to as required by said § 8182, no such forbid the bringing of a suit against notice need be given at all where the city until he informed it of all the suit is brought and the petition the facts he would be permitted to served upon the city within said prove at the trial and estop himself ninety days. We refused to con- forever from correcting any mistake strue said section literally, but gave in his present information. Upon it a reasonable construction, so as this construction the statute is not not to conflict with fundamental only equivalent to the enactment of law. In the Wolf Case, 296 Mo. 108, a statute of limitations of ninety 246 S. W. 240, 22 N. C. C. A. 174, days, but prescribes a rule of pleadBrown, C., delivering the opinion, ing which abolishes the right of we said:

amendment in the cases to which it “The city will be liable for dam- applies. To ascribe this intention to ages resulting from its failure to the legislature is unthinkable." keep the streets and alleys

We have thus ruled that a conin a safe condition. This has, from struction should not be placed upon the earliest times, been considered said section which would burden the so just and reasonable that the com- remedy of the injured party with mon law has constituted a neglect onerous and unthinkable conditions, of that duty an actionable wrong, unless it should be plainly and unfor the redress of which a common- mistakably stated therein. To conlaw action will lie. It is plain that strue the section in question now belegislative enactments that impose a fore us to require an impossibility burden upon that remedy which of the injured party, to give notice does not rest upon suits for redress stating the time and place, the charof other wrongs are in derogation acter and circumstances of such inof the common law and common jury, as required by said section, right and should be construed ac- when he was unable to do so by reacordingly. We express the same son of his physical or mental disidea when we say that, if such suit- abilities, especially if arising from ors ought not to have redress, the the negligence of the city which inlegislature should say so, and that, jured him, would be as unthinkable if such redress should be burdened and unreasonable as the construcwith onerous conditions which ap- tion contended for and so strongly ply to no other class of suitors, it condemned by this court in the Wolf should be plainly and unmistakably Case. stated.

We therefore hold that said $ "Coming to the construction of

8182 did not require the thirty days' the Act of 1913 [requiring notice to notice therein provided for to be cities of 100,000 inhabitants or given, if the injured more], we are particularly puzzled party was so dis- otruction-notice

of . by the use of the word 'until.' Were abled by the injury the word 'unless, it would be per- complained of as to be incapacitated fectly intelligible, meaning that the from giving such notice during said defendant should be informed of the thirty days, and that, if the notice is facts, and intention of the injured given within a reasonable time, not party to sue within ninety days exceeding thirty days after the disfrom the date of the injury, which ability to give the notice is removed,

Statute-con

of injury

law-local or

cities.

this will be sufficient to comply with days was held not so short a time as said statute.

to be unreasonable, in MassachuIII. It is also contended by appel- setts, to give such notice, where the lant that said § 8182 is unconstitu- statute expressly provides it need tional because the time fixed for giv- not be given by persons incapacitating such notice, thirty days after ed to give the same until their disthe injury, is unreasonable and en- ability is removed. Mulvey v. Bostirely too short to give the injured ton, 197 Mass. loc. cit. 183, 184, 83 party, though not so injured as to be N. E. 402, 14 Ann. Cas. 349. incapacitated, physically or mental- We rule this point, therefore, ly, reasonable time to gather the against appellant. information required by him to be V. It is claimed that said § 8182 given the city in such notice. But violates ( 31, $ 53, art. 4, of the Con

we think that, prop- stitution of this state, which prohibMunicipal

erly construed, the its the enactment of any local or corporationtime for notice injured party is on- special law for limitation of civil acreasonableness.

ly required by said tion; that said section is a local or

section to give such special law, because it only applies information as he possesses, and to to cities of the second class.

But we act in good faith in notifying the hold it is not a local or special law city thereof, within the time limited for that reason, bein said section. To require him to cause it applies to Constitutional give all the facts, whether he knew all existing or fu- special lawthem or not, and prevent him from ture cities of the classification of recovering on any other facts than second class, and is those stated in said notice, would not limited to any particular city or put him in the dilemma in the Wolf cities of that class. Forgrave v. Case, and impose onerous and un- Buchanan County, 282 Mo. 599, 222 reasonable conditions on him, not S. W. 755, and cases cited. imposed upon others asserting com- VI. It is also contended that said mon-law rights, and make the stat- § 8182 is unreasonable, and thereute a statute of limitations absolute- fore vicious class legislation, in that ly barring him in thirty days, all cities and persons of the state whereas a statute of limitations of are not embraced therein and treatninety days in such cases would, as ed alike under the same circumwe have ruled in the Wolf Case, be stances; that in cities of the first unreasonable.

class the injured party has sixty The power to enact statutes of days within which to give such nolimitations is subject to the funda- tice ($ 7955); in cities of 100,000 mental condition that they must inhabitants, ninety days (8 8904);

allow a reasonable in cities of the third and fourth Limitation of action-time for time for the exer- classes there is no requirement for exercising right. cise of the right of any such notice at all. But in cities action, and it will be declared unrea- of the second class, to which plainsonable if the time fixed is so mani- tiff alleges the defendant belongs, festly inadequate as to amount to a the notice must be given within denial of justice. 12 C. J. $ 574, pp. thirty days, as provided by said § 978, 979. But if the injured party 8182. We must rule this point also is only required to give such infor- against appellant. Legislation for mation as he possesses of the char cities according to acter and circumstances, time and class or population equal protecplace, of the accident, within thirty has long been recog- ination between days, as we hold is all that can be nized as reasonable residents of dif

ferent cities. reasonably and therefore constitu- classification. State tionally required of the injured par- ex rel. Barker v. Southern, 265 Mo. ty, the statute does not infringe up- loc. cit. 286, 287, 177 S. W. 640. It on the fundamental law. Thirty was within the province of the legis

(- Mo.

4, 257 8. W. 449.) lature to require the notice to be giv- which refers only to cities of the en in sixty days in cities of the sec- second class. ond class, and within ninety days in For the error, however, heretocities of the first class, and not to fore pointed out, the judgment berequire any notice at all in cities low is reversed, and the cause is reof the third and fourth classes. manded for trial according to the Whether the requirement that the views herein expressed. notice should be in sixty days in cit

Lindsay, C., concurs. ies of the first class, which are com

Per Curiam: posed of 100,000 inhabitants or more, and within ninety days in cit

The foregoing opinion by Small, ies of 100,000 inhabitants, is un

C., is adopted as the opinion of the equal and unreasonable classifica

court. tion, does not affect the question be- All the Judges concur; James T. fore us, which concerns said § 8182, Blair, J., in result.

ANNOTATION.

Incapacity as excuse for failure to give, or delay in giving, notice of accident

or injury as condition of holding municipality liable.

I. Scope, 619.

III.—continued. II. General statutes:

b. “Physical or mental incapacity,"

628. a. Failure excusable, 619.

C. “Bereft of reason,” 637. b. Failure not excusable, 625.

d. Where “unavoidably prevented," III. Statutes making provision for delay

631. or failure:

e. “Reasonable excuse" not preju. a. In general, 628.

dicing defense, 632. 1. Scope.

by showing extenuating circumThe present annotation does not stances, such, for example, as physical purport to cover the general question or mental incapacity, etc., during the whether or not a statute of the kind statutory period. The following cases under consideration is applicable to a support the rule that noncompliance given person or injury, but is con- may be excused: Webster v. Beaver cerned merely with the question what, Dam (1898) 84 Fed. 280; McDonald v. if any, facts will excuse noncompli- Spring Valley (1918) 285 III. 52, 2 ance with a statutory requirement that A.L.R. 1359, 120 N. E. 476, reversing notice be given as a condition of hold- (1918) 209 Ill. App. 7; RANDOLPH V. ing a municipality liable. However, SPRINGFIELD (reported herewith) ante, a few cases which have treated the (this decision apparently overrules question as one of application or non- Reid v. Kansas City (1917) 195 Mo. application have been included, be- App. 457, 192 S. W. 1047, wherein it cause in effect answering the question

was held that since the statute made under annotation.

no exceptions, none could be ingrafted

thereon by the court, and consequently II. General statutes.

that incapacity could not excuse faila. Failure excusable.

ure to give the required notice); WalThere is considerable authority to

den v. Jamestown (1904) 178 N. Y. the effect that failure to give notice

213, 70 N. E. 466, 16 Am. Neg. Rep. of an accident or injury within a 171, affirming (1903) 79 App. Div. 433, specified time thereafter as a condition 80 N. Y. Supp. 65, 12 N. Y. Anno. Cas. of holding a municipality liable there- 313; Williams v. Port Chester (1904) for does not necessarily bar recovery, 97 App. Div. 84, 89 N. Y. Supp. 671, since failure to comply with the literal affirmed without opinion in (1905) 183 terms of the statute may be excused N. Y, 550, 76 N. E. 1116; Winter v. Niagara Falls (1907) 190 N. Y. 198, his claim, but he did so within a rea123 Am. St. Rep. 540, 82 N. E. 1101, sonable time after he was restored 13 Ann. Cas. 486; Forsyth v. Oswego sufficiently to do so, in holding that (1908) 191 N. Y. 441, 123 Am, St. Rep. the delay was excused, the court said: 605, 84 N. E. 392; Murphy v. Ft. "The general rule is such cases seems Edward (1915) 213 N. Y. 397, 107 N. to be that, in order to excuse a strict E. 716, Ann. Cas. 1916C, 1040, 9 N. C. compliance with the provision, it must C. A. 279, affirming (1913) 159 App. be shown that there is such physical Div. 471, 144 N. Y. Supp. 451, which or mental incapacity as to make it imreversed on rehearing (1913) 158 App. possible for the injured person, by any Div. 342, 143 N. Y. Supp. 378; Rogers ordinary means at his command, to v. Port Chester (1922) 234 N. Y. 182, procure service of the notice or a fil137 N. E. 19, 22 N. C. C. A. 789 (hold- ing of the claim, whichever is reing, however, that proof of mental and quired, and if there is an actual inphysical incapacity was not made); capacity, it can make no practical Green v. Port Jervis (1900) 55 App. difference in reason whether it is Div. 58, 66 N. Y. Supp. 1042; Hunger.mental or physical in its nature. ford v. Waverly (1908) 125 App. Div.

It may very properly be said 311, 109 N. Y. Supp. 438; Terrell v. that it would, in truth, shock the sense Washington (1912) 158 N. C. 281, 73 of justice and right if this provision S. E. 888; Hartsell v. Asheville (1914) was construed so as to hold the notice 166 N. C. 633, 82 S. E. 946, on rehear- of the plaintiff's claim insufficient uning of (1913) 164 N. C. 193, 80 S. E. der the circumstances. It is an ac226; Tulsa v. Wells (1920) 79 Okla. cepted maxim that the law does not 39, 191 Pac. 186; Born v. Spokane seek to compel that to be done which (1902) 27 Wash. 719, 68 Pac. 386; is impossible. It cannot reasonably be Ehrhardt v. Seattle (1903) 33 Wash. presumed that the intention of the 664, 74 Pac. 827, on subsequent ap- legislature in enacting this charter peal in (1905) 40 Wash. 221, 82 Pac. would lead to any such unjust con296.

clusion, and it is a fundamental canon For instance, in the reported case of interpretation that a thing which is (RANDOLPH v. SPRINGFIELD, ante, within the letter of a statute is not 612), it is held that a statute requir- within the statute itself, unless it is ing notice of injury within thirty days within the intention of the makers.” does not apply to one injured so And in Hartsell v. Asheville (1914) severely as to be unable to give the 166 N. C. 633, 82 S. E. 946, where the notice during such period, so as to bar statute required notice within ninety the maintaining of an action founded days, and it appeared that the plaintiff upon a common-law right against a for eight weeks was absolutely helpmunicipal corporation for the injury. less, and practically so for three And in Webster v. Beaver Dam (Fed.) months, during all of which time she supra, it was held that plaintiff was was confined in a hospital, and for excused from 'service of notice within two months more after removal to her fifteen days, where she was rendered home, the court recognized the rule physically incapable of giving such that such physical or mental incapacnotice within the time, and gave it ity as makes it impossible, by any as soon as she was able to attend to ordinary means at hand, to procure it; at least, where the right to main- service of the notice, will excuse detain an action for such an injury is lay, and held that on the facts the case given by the common law.

should have been submitted to the And in Terrell Washington jury to determine whether, by reason (1912) 158 N. C. 281, 73 S. E. 888, of plaintiff's physical or mental conwhere by reason of the injury com- dition, she was unable during the plained of the plaintiff was so affected, whole ninety days to give, or to cause both mentally and physically, during to be given, to the city, notice of her the statutory period, that he was un- injury. able to transact business or to present And in the Oklahoma case of Tulsa

v.

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v. Wells (1920) 79 Okla. 39, 191 Pac. plied with, and to hold that it must

. 186, assuming the validity of a statu- be would in these cases be, in eftory provision requiring a notice of fect, holding that no recovery could injury within thirty days after the be had at all.

It cannot be same has been received, it was held said with any show of reason that the that the failure to give such notice legislature intended by this statute may be excused where the effect of to deprive claimants of all right of such injury is to render the injured action in cases where the injuries reperson mentally and physically incom- ceived were of a serious nature, and petent to give the notice. In this case wherein, from the serious nature of the plaintiff's skull was fractured, the injuries, there was the stronger rendering him unconscious during reason for holding the city liable for the whole statutory period, and a find- negligence with reference to its streets ing of sufficient excuse was upheld. and sidewalks, and especially when

And in New York the rule is that the inability to serve the notice grows where an injured person is unable, be- out of the very act of negligence for cause of physical or mental incapa- which the right of recovery is given. city arising from the wrong, to

,

We are not called upon to lay down give the notice within the prescribed any general rule applicable to all period, the giving thereof within cases, but in this case, where the dea reasonable time after competency lay in serving the notice was for but is restored constitutes a substan- twenty-four hours (one day after the tial compliance with the require time provided by the statute), and durment and entitles the injured person ing the whole time (the three days) to maintain a suit. Thus, in Walden the claimant was incapable, by reason v. Jamestown (1903) 79 App. Div. 433, of her injuries, of transacting any 80 N. Y. Supp. 65, 12 N. Y. Ann. Cas. business whatever with reference to 313, affirmed in (1904) 178 N. Y. 213, the notice, we have no hesitancy in 70 N. E. 466, 16 Am. Neg. Rep. 171, holding that, having served the notice where notice was required to be given at the earliest moment she was able within forty-eight hours, but because to do so, the statute was substantially of the accident plaintiff was physically complied with, within the fair meanand mentally incapable of doing so, ing and intent of the legislature in but gave the notice seventy-two hours enacting the statute. Any other conafter the accident, which was as soon clusion would be unfair, unreasonable, as her mental and physical condition and unjust, especially when we conwould permit, in holding that the stat- sider that under the statute the claimute was substantially complied with, ant is prohibited from bringing the Williams, J., speaking for the appellate action until after the expiration of division of the supreme court, said: three months from the presentation "A reasonable construction should of the claim, which must be presented be given to the statute. While it is within thirty days after the accident apparent that the legislature in this occurs.” So, in Green v. Port Jervis act intended to provide

(1900) 55 App. Div. 58, 66 N. Y. Supp. prompt notice to the city of the place 1042, where notice was required in where the accident occurred, in order forty-eight hours, but was not served that the city might examine the local- until five days after the injury, which ity at once, and be able to protect it- was as soon as plaintiff was physicalself against any dishonest claim ly and mentally able to do so, in holdthat might be made, and while in or- ing that there was a substantial comdinary cases forty-eight hours would pliance which satisfied the statute, the be entirely adequate to enable the court said: "The filing of the notice claimant to give the notice, which is, is but a step in the process of prounder this statute, merely of the cedure for redress, and, as such, is locality of the accident, yet under subject to the salutary and liberal some circumstances, manifestly, the rules which govern questions of pracstatute could not be literally com- tice. It requires that the plaintiff

for very

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