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257 S. W. 449.) vit, to the mayor of said city, with that reason, deprive her of all right in thirty days of the occurrence for or remedy for the wrong inflicted which such damage is claimed, stat- upon her. In other words, if she is ing the place where, the time when injured severely enough to prevent such injury was received, and the her from giving such notice of her character and circumstances of the injury, as required by said section injury, and the person so injured of the statute, the statute forbids will claim damages therefor from the courts of justice from being such city."

opened to her, and deprives her of The provision of the Constitution all right and remedy for the injury of Missouri cited by appellant, to she sustained by reason of the negwit, $ 10, art. 2, is as follows: "The ligence of the city. It is clear courts of justice shall be open to enough that, if such a provision had every person, and certain remedy been expressly contained in said afforded for every injury to person, section of the statute, it would have property, or character, and that

been in conflict with said § 10, art. right and justice should be adminis- 2, of the Constitution. tered without sale, denial, or delay.” intent on the part

Constitutional It is well settled in this state that of the legislature. is law-denying an action for damages against a mu- implied, such impli- rlcht of action nicipality for personal injury from cation would be give notice of

negligence in fail. equally inoperative injury. Municipal corporations

ing to maintain the and void as conflicting with the Conliability for

streets in repair is stitution. injury on street.

not a statutory ac- Statutes requiring notice of such tion, but is bottomed upon the com- injury to the city before suit brought mon law. Hackenyos v. St. Louis, or within a certain time have been

Mo. –, 203 S. W. loc. cit. 999; generally enacted in most states of Vogelgesang v. St. Louis, 139 Mo. the Union. In a number of states 135, 40 S. W. 653; Morrill v. Kan- the requirement to give such notice sas City, Mo. App. -, 179 S. W. by express provisions of the statute loc. cit. 762; Benton v. St. Louis, does not apply to persons incapaci217 Mo. loc. cit. 700, 129 Am. St. tated or disabled from giving the Rep. 561, 118 S. W. 418; Wolf v. notice until the disability is reKansas City, 296 Mo. 95, 246 S. W moved. Welch v. Gardner, 133 loc. cit. 240, 22 N. C. C. A. 174. Mass. 529; Stoliker vi Boston, 204

It would seem to be clear, under Mass. 522, 90 N. E. 927; Barclay v. the allegations of plaintiff's peti- Boston, 167 Mass. 596, 46 N. E. 113, tion, that she was so injured through 1 Am. Neg. Rep. 449; Ray v. St. the actionable negligence of the city Paul, 44 Minn. 340, 46 N. W. 675; that she was unable by reason of Gonyeau v. Milton, 48 Vt. 173. But, such injury to give the notice within in the absence of such a provision, the thirty days required by such it has been held that to apply the statute. If plaintiff had not been statute to a person who was unable 80 severely injured by the defend to give the notice within the time ant's negligence as to prevent her required by the statute, especially from giving such notice, she could when the inability to do so grows have given it, and would then not out of the very act of negligence have been deprived by the statute of which makes the city liable, would her right of action or remedy for the deny the plaintiff, in such cases, the wrong inflicted upon her by the city. due process of law demanded by But if the construction of the stat both the state and Federal Constituute by the lower court is correct, the tions. Williams v. Port Chester, 72 fact that she was so seriously in- App. Div. 505, 76 N. Y. Supp. 631, jured by the negligence of the city reaffirmed on appeal in 97 App. Div. that she was unable to give such 84, 89 N. Y. Supp. 671, and affirmed notice would make the statute, for without opinion in 183 N. Y. 550,

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76 N. E. 1116; Murphy v. Ft. Ed- 68 Pac. 386, and Ehrhardt v. ward, 213 N. Ý. 397, 107 N. E. 716, Seattle, 33 Wash. 664, 74 Pac. 827. Ann. Cas. 1916C, 1040, 9 N. C. C. A. In the case at bar the plaintiff 279; Forsyth v. Oswego, 191 N. Y. had a right of action at common 441, 123 Am. St. Rep. 605, 84 N. E. law as soon as she was injured by 392; Webster v. Beaver Dam (C. the city. No act of the legislature C.) 84 Fed. 280; Terrell v. Washing- would be valid which clogged or en. ton, 158 N. C. 281, 73 S. E. 888; cumbered her right to enforce such Hartsell v. Asheville, 166 N. C. 633, common-law right with impossible 82 S. E. 946. In McCollum v. South conditions, such as to require her Omaha, 84 Neb. 413, 121 N. W. 438, to give notice when she was physia contrary ruling was made, but cally or mentally incapable of so dowith a strong dissenting opinion, ing, or other conditions impossible and the court held that, even though of performance without her fault. the plaintiff was disabled by the ac- To require such an impossibility of cident from giving the notice, the her would, in effect, be a denial of failure to give it was fatal to the her right to sue at all upon a perplaintiff's right of recovery. In Ne- fectly valid cause of action. Referbraska, however, the action is stat- ring to the above constitutional proutory. But even in that case the vision, this court in White v. Delearned dissenting judge used the lano, 270 Mo. loc. cit. 30, 191 S. W. apropos language: "Any rule of 1016, Judge Woodson delivering the construction which will result in opinion, said: "To deter a person such flagrant injustice is so con- from asserting his constitutional trary to every instinct of humanity rights in a court of justice by prethat it ought never to be permitted scribing excessive penalties, physito disgrace the reports of the court

cal force, or mental restraint is for of last resort of any Christian all practical purposes a denial to state. It is preposterous to say

him of due process of law. that the legislature ever intended In other words, the courts of this to give a party a remedy for a

country will no more permit a parwrong and at the same time deprive tial closing of the doors of courts of him of that remedy if he failed to justice to litigants, than they will perform some condition subsequent tolerate

tolerate a complete closing—the which the wrong of the wrongdoer

fundamental law of the land estabrendered it impossible for him to

lished the courts, and by providing perform.”

that they should be opened to all, In Touhey y. Decatur, 175 Ind.

means that they have no doors to 98, 32 L.R.A.(N.S.) 350, 93 N. E.

close in the face of a bona fide liti540, 3 N. C. C. A. 390, it was held gant; consequently any statute

which denies or trammels the right that disability did not excuse giv- of a person to freely present his ing the statutory notice, on the

lawful rights to a court of Justice ground that in that state the action

for determination, must yield to the was statutory, and subject to such superior mandate of the Constituconditions as the statute might im- tion." pose, or to be entirely abolished

The legislature in enacting the thereby. In Ransom v. South section under consideration must be Bend, 76 Wash. 396, 136 Pac. 365, deemed to have been familiar with and Hall v. Spokane, 79 Wash. 303, said $ 10, art. 2, of the Constitution, 140 Pac. 348, it was held that the and to have intended that said statrequired notice must be given, al- ute should not violate said provithough the plaintiff was disabled sions of the Constitution, but should from giving it by the accident, and would be construed by the which, however, was in conflict courts, subject to and in harmony with prior rulings of the same court therewith. in Born v. Spokane, 27 Wash. 719, In Costello v. Kansas City & K. C. (- 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. a 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 in. of 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 construc-' with 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

Statute-conmore], we are particularly puzzled party was so dis- struction-notice

of injury. 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 reasona 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,

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. 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 prejua. 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

eld that since the statute ade 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.

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. for does not necessarily bar recovery, of holding a municipality liable there- 313; Williams v. Port Chester (1904) since failure to comply with the literal

97 App. Div. 84, 89 N. Y. Supp. 671,

affirmed without opinion in (1905) 183 the statute may be excused N. Y. 550, 76 N. E. 1116; Winter v.

was

under annotation.

of an

terms of

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