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(Mo., 257 S. W. 449.)

vit, to the mayor of said city, with in thirty days of the occurrence for which such damage is claimed, stating the place where, the time when such injury was received, and the character and circumstances of the injury, and the person so injured will claim damages therefor from such city."

The provision of the Constitution of Missouri cited by appellant, to wit, § 10, art. 2, is as follows: "The courts of justice shall be open to every person, and certain remedy afforded for every injury to person, property, or character, and that right and justice should be administered without sale, denial, or delay." It is well settled in this state that an action for damages against a municipality for personal injury from negligence in failing to maintain the streets in repair is not a statutory action, but is bottomed upon the common law. Hackenyos v. St. Louis, - Mo., 203 S. W. loc. cit. 999; Vogelgesang v. St. Louis, 139 Mo. 135, 40 S. W. 653; Morrill v. Kansas City, Mo. App., 179 S. W. loc. cit. 762; Benton v. St. Louis, 217 Mo. loc. cit. 700, 129 Am. St. Rep. 561, 118 S. W. 418; Wolf v. Kansas City, 296 Mo. 95, 246 S. W. loc. cit. 240, 22 N. C. C. A. 174.

Municipal corporationsliability for injury on street.

It would seem to be clear, under the allegations of plaintiff's petition, that she was so injured through the actionable negligence of the city that she was unable by reason of such injury to give the notice within the thirty days required by such statute. If plaintiff had not been so severely injured by the defendant's negligence as to prevent her from giving such notice, she could have given it, and would then not have been deprived by the statute of her right of action or remedy for the wrong inflicted upon her by the city. But if the construction of the statute by the lower court is correct, the fact that she was so seriously injured by the negligence of the city. that she was unable to give such notice would make the statute, for

that reason, deprive her of all right or remedy for the wrong inflicted upon her. In other words, if she is injured severely enough to prevent her from giving such notice of her injury, as required by said section of the statute, the statute forbids the courts of justice from being opened to her, and deprives her of all right and remedy for the injury she sustained by reason of the neg. ligence of the city. It is clear enough that, if such a provision had been expressly contained in said section of the statute, it would have been in conflict with said § 10, art. 2, of the Constitution. If such an intent on the part Constitutional of the legislature. is law-denying implied, such impli- right of action cation would be give notice of injury. equally inoperative and void as conflicting with the Constitution.

to one unable to

Statutes requiring notice of such injury to the city before suit brought or within a certain time have been generally enacted in most states of the Union. In a number of states the requirement to give such notice by express provisions of the statute does not apply to persons incapacitated or disabled from giving the notice until the disability is removed. Welch v. Gardner, 133 Mass. 529; Stoliker v. Boston, 204 Mass. 522, 90 N. E. 927; Barclay v. Boston, 167 Mass. 596, 46 N. E. 113, 1 Am. Neg. Rep. 449; Ray v. St. Paul, 44 Minn. 340, 46 N. W. 675; Gonyeau v. Milton, 48 Vt. 173. But, in the absence of such a provision, it has been held that to apply the statute to a person who was unable to give the notice within the time required by the statute, especially when the inability to do so grows out of the very act of negligence which makes the city liable, would deny the plaintiff, in such cases, the due process of law demanded by both the state and Federal Constitutions. Williams v. Port Chester, 72 App. Div. 505, 76 N. Y. Supp. 631, reaffirmed on appeal in 97 App. Div. 84, 89 N. Y. Supp. 671, and affirmed without opinion in 183 N. Y. 550,

76 N. E. 1116; Murphy v. Ft. Edward, 213 N. Y. 397, 107 N. E. 716, Ann. Cas. 1916C, 1040, 9 N. C. C. A. 279; Forsyth v. Oswego, 191 N. Y. 441, 123 Am. St. Rep. 605, 84 N. E. 392; Webster v. Beaver Dam (C. C.) 84 Fed. 280; Terrell v. Washington, 158 N. C. 281, 73 S. E. 888; Hartsell v. Asheville, 166 N. C. 633, 82 S. E. 946. In McCollum v. South Omaha, 84 Neb. 413, 121 N. W. 438, a contrary ruling was made, but with a strong dissenting opinion, and the court held that, even though the plaintiff was disabled by the accident from giving the notice, the failure to give it was fatal to the plaintiff's right of recovery. In Nebraska, however, the action is statutory. But even in that case the learned dissenting judge used the apropos language: "Any rule of construction which will result in such flagrant injustice is so contrary to every instinct of humanity that it ought never to be permitted to disgrace the reports of the court of last resort of any Christian state. It is preposterous to say that the legislature ever intended to give a party a remedy for a wrong and at the same time deprive him of that remedy if he failed to perform some condition subsequent which the wrong of the wrongdoer rendered it impossible for him to perform."

In Touhey v. Decatur, 175 Ind. 98, 32 L.R.A. (N.S.) 350, 93 N. E. 540, 3 N. C. C. A. 390, it was held that disability did not excuse giving the statutory notice, on the ground that in that state the action was statutory, and subject to such conditions as the statute might impose, or to be entirely abolished thereby. In Ransom v. South Bend, 76 Wash. 396, 136 Pac. 365, and Hall v. Spokane, 79 Wash. 303, 140 Pac. 348, it was held that the required notice must be given, although the plaintiff was disabled from giving it by the accident, which, however, was in conflict with prior rulings of the same court in Born v. Spokane, 27 Wash. 719,

68 Pac. 386, and Ehrhardt v. Seattle, 33 Wash. 664, 74 Pac. 827.

In the case at bar the plaintiff had a right of action at common law as soon as she was injured by the city. No act of the legislature would be valid which clogged or encumbered her right to enforce such common-law right with impossible conditions, such as to require her to give notice when she was physically or mentally incapable of so doing, or other conditions impossible of performance without her fault. To require such an impossibility of her would, in effect, be a denial of her right to sue at all upon a perfectly valid cause of action. Referring to the above constitutional provision, this court in White v. Delano, 270 Mo. loc. cit. 30, 191 S. W. 1016, Judge Woodson delivering the opinion, said: "To deter a person from asserting his constitutional rights in a court of justice by prescribing excessive penalties, physical force, or mental restraint is for all practical purposes a denial to him of due process of law. .

In other words, the courts of this country will no more permit a partial closing of the doors of courts of justice to litigants, than they will tolerate a complete closing-the fundamental law of the land established the courts, and by providing that they should be opened to all, means that they have no doors to close in the face of a bona fide liti

which denies or trammels the right gant; consequently any any statute of a person to freely present his lawful rights to a court of justice for determination, must yield to the superior mandate of the Constitu

tion."

The legislature in enacting the section under consideration must be deemed to have been familiar with said § 10, art. 2, of the Constitution, and to have intended that said statute should not violate said provisions of the Constitution, but should and would be construed by the courts, subject to and in harmony therewith.

In Costello v. Kansas City & K. C.

(Mo. —, 257 S. W. 449.)

R. Co. 280 Mo. 576, 219 S. W. 386, and Wolf v. Kansas City, 296 Mo. 95, 246 S. W. 236, 22 N. C. C. A. 174, we held that, under § 1, p. 545, of the Laws of 1913, now § 8904, Rev. Stat. 1919, which required notice to be given to cities of over 100,000 within ninety days from the accident, giving the same information as required by said § 8182, no such notice need be given at all where the suit is brought and the petition served upon the city within said. ninety days. We refused to construe said section literally, but gave it a reasonable construction, so as not to conflict with fundamental law. In the Wolf Case, 296 Mo. 108, 246 S. W. 240, 22 N. C. C. A. 174, Brown, C., delivering the opinion, we said:

"The city will be liable for damages resulting from its failure to keep the streets and alleys

in a safe condition. This has, from the earliest times, been considered so just and reasonable that the common law has constituted a neglect of that duty an actionable wrong, for the redress of which a commonlaw action will lie. It is plain that legislative enactments that impose a burden upon that remedy which does not rest upon suits for redress of other wrongs are in derogation of the common law and common right and should be construed accordingly. We express the same idea when we say that, if such suitors ought not to have redress, the legislature should say so, and that, if such redress should be burdened with onerous conditions which apply to no other class of suitors, it should be plainly and unmistakably stated.

"Coming to the construction of the Act of 1913 [requiring notice to cities of 100,000 inhabitants or more], we are particularly puzzled by the use of the word 'until.' Were the word 'unless,' it would be perfectly intelligible, meaning that the defendant should be informed of the facts, and intention of the injured party to sue within ninety days from the date of the injury, which

would be, under the circumstances, a reasonable requirement. The word 'until' might be so construed that, if suit were brought the day after the injury, without such notice, it could not be maintained for an instant, but would abate automatically. It would then express the intention of the legislature to forbid the bringing of a suit against the city until he informed it of all the facts he would be permitted to prove at the trial and estop himself forever from correcting any mistake in his present information. Upon this construction the statute is not only equivalent to the enactment of a statute of limitations of ninety days, but prescribes a rule of pleading which abolishes the right of amendment in the cases to which it applies. To ascribe this intention to the legislature is unthinkable."

We have thus ruled that a construction should not be placed upon said section which would burden the remedy of the injured party with onerous and unthinkable conditions, unless it should be plainly and unmistakably stated therein. To construe the section in question now before us to require an impossibility of the injured party, to give notice stating the time and place, the character and circumstances of such injury, as required by said section, when he was unable to do so by reason of his physical or mental disabilities, especially if arising from the negligence of the city which injured him, would be as unthinkable and unreasonable as the construction contended for and so strongly condemned by this court in the Wolf Case.

Statute-con

of injury.

We therefore hold that said § 8182 did not require the thirty days' notice therein provided for to be given, if the injured party was so dis- struction-notice abled by the injury complained of as to be incapacitated from giving such notice during said thirty days, and that, if the notice is given within a reasonable time, not exceeding thirty days after the disability to give the notice is removed,

this will be sufficient to comply with said statute.

III. It is also contended by appellant that said § 8182 is unconstitutional because the time fixed for giving such notice, thirty days after the injury, is unreasonable and entirely too short to give the injured party, though not so injured as to be incapacitated, physically or mentally, reasonable time to gather the information required by him to be given the city in such notice. But

Municipal corporationtime for notice of injuryreasonableness.

we think that, properly construed, the injured party is only required by said section to give such information as he possesses, and to act in good faith in notifying the city thereof, within the time limited in said section. To require him to give all the facts, whether he knew them or not, and prevent him from recovering on any other facts than those stated in said notice, would put him in the dilemma in the Wolf Case, and impose onerous and unreasonable conditions on him, not imposed upon others asserting common-law rights, and make the statute a statute of limitations absolutely barring him in thirty days, whereas a statute of limitations of ninety days in such cases would, as we have ruled in the Wolf Case, be unreasonable.

The power to enact statutes of limitations is subject to the fundamental condition that they must

Limitation of

allow a reasonable action-time for time for the exerexercising right. cise of the right of action, and it will be declared unreasonable if the time fixed is so manifestly inadequate as to amount to a denial of justice. 12 C. J. § 574, pp. 978, 979. But if the injured party is only required to give such information as he possesses of the character and circumstances, time and place, of the accident, within thirty days, as we hold is all that can be reasonably and therefore constitutionally required of the injured party, the statute does not infringe upon the fundamental law. Thirty

days was held not so short a time as to be unreasonable, in Massachusetts, to give such notice, where the statute expressly provides it need not be given by persons incapacitated to give the same until their disability is removed. Mulvey v. Boston, 197 Mass. loc. cit. 183, 184, 83 N. E. 402, 14 Ann. Cas. 349.

We rule this point, therefore, against appellant.

V. It is claimed that said § 8182 violates ¶ 31, § 53, art. 4, of the Constitution of this state, which prohibits the enactment of any local or special law for limitation of civil action; that said section is a local or special law, because it only applies to cities of the second class. But we hold it is not a local or special law for that reason, be

law-local or

cause it applies to Constitutional all existing or fu- special lawture cities of the classification of second class, and is

cities.

not limited to any particular city or cities of that class. cities of that class. Forgrave v. Buchanan County, 282 Mo. 599, 222 S. W. 755, and cases cited.

VI. It is also contended that said § 8182 is unreasonable, and therefore vicious class legislation, in that all cities and persons of the state are not embraced therein and treated alike under the same circumstances; that in cities of the first class the injured party has sixty days within which to give such notice (§ 7955); in cities of 100,000 inhabitants, ninety days (§ 8904); in cities of the third and fourth classes there is no requirement for any such notice at all. But in cities of the second class, to which plaintiff alleges the defendant belongs, the notice must be given within thirty days, as provided by said § 8182. We must rule this point also against appellant. Legislation for cities according to class or population equal protechas long been recog- ination between nized as reasonable residents of difclassification. State

tion-discrim

ferent cities.

ex rel. Barker v. Southern, 265 Mo. loc. cit. 286, 287, 177 S. W. 640. It was within the province of the legis

(— Mo. —, 257 S. W. 449.)

lature to require the notice to be given in sixty days in cities of the second class, and within ninety days in cities of the first class, and not to require any notice at all in cities of the third and fourth classes. Whether the requirement that the notice should be in sixty days in cities of the first class, which are composed of 100,000 inhabitants or more, and within ninety days in cities of 100,000 inhabitants, is unequal and unreasonable classification, does not affect the question before us, which concerns said § 8182,

which refers only to cities of the second class.

For the error, however, heretofore pointed out, the judgment below is reversed, and the cause is remanded for trial according to the views herein expressed.

Lindsay, C., concurs.
Per Curiam:

The foregoing opinion by Small, C., is adopted as the opinion of the court.

All the Judges concur; James T. 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.

II. General statutes:

a. Failure excusable, 619.

b. Failure not excusable, 625.

III. Statutes making provision for delay or failure:

a. In general, 628.

1. Scope.

The present annotation does not purport to cover the general question whether or not a statute of the kind under consideration is applicable to a given person or injury, but is concerned merely with the question what, if any, facts will excuse noncompliance with a statutory requirement that notice be given as a condition of holding a municipality liable. However, a few cases which have treated the question as one of application or nonapplication have been included, because in effect answering the question under annotation.

11. General statutes.

a. Failure excusable.

There is considerable authority to the effect that failure to give notice of an accident or injury within a specified time thereafter as a condition of holding a municipality liable therefor does not necessarily bar recovery, since failure to comply with the literal terms of the statute may be excused

III.-continued.

by

b. "Physical or mental incapacity," 628.

c. "Bereft of reason," 637.

d. Where "unavoidably prevented,"

631.

e. "Reasonable excuse" not prejudicing defense, 632.

circum

showing extenuating stances, such, for example, as physical or mental incapacity, etc., during the statutory period. The following cases. support the rule that noncompliance may be excused: Webster v. Beaver Dam (1898) 84 Fed. 280; McDonald v. Spring Valley (1918) 285 Ill. 52, 2 A.L.R. 1359, 120 N. E. 476, reversing (1918) 209 Ill. App. 7; RANDOLPH V. SPRINGFIELD (reported herewith) ante, (this decision apparently overrules Reid v. Kansas City (1917) 195 Mo. App. 457, 192 S. W. 1047, wherein it was held that since the statute made no exceptions, none could be ingrafted thereon by the court, and consequently that incapacity could not excuse failure to give the required notice); Walden v. Jamestown (1904) 178 N. Y. 213, 70 N. E. 466, 16 Am. Neg. Rep. 171, affirming (1903) 79 App. Div. 433, 80 N. Y. Supp. 65, 12 N. Y. Anno. Cas. 313; Williams v. Port Chester (1904) 97 App. Div. 84, 89 N. Y. Supp. 671, affirmed without opinion in (1905) 183 N. Y. 550, 76 N. E. 1116; Winter v.

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