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should give the defendant specific not within the purview of the law." information concerning the accident, And in Williams v. Port Chester through a certain channel, and within (1904) 97 App. Div. 84, 89 N. Y. Supp. a given period, as a condition prec- 671, affirmed without opinion in (1905) edent to the maintenance of an 183 N. Y. 550, 76 N. E. 1116, where the tion. If the defendant wilfully re- statute provided for notice within fuse to receive the information, or thirty days, it was held that the givto permit it to be given, if its of- ing of notice forty-three days after ficers, acting under its orders, seize the accident constituted a substantial the plaintiff and hold him fast during compliance with the statute, it appearthe whole of the prescribed period, so ing that the notice was given as soon that the conveyance of the information as the plaintiff's mental and physical be rendered a physical impossibility, condition permitted. And in Forsyth the defendant would hardly be per- v. Oswego (1908) 191 N. Y. 441, 123 mitted to plead the consequent default Am. St. Rep. 605, 84 N. E. 392, reversas a defense; and the same reason- ing (1906) 114 App. Div. 616, 99 N. ing would seem to apply with equal Y. Supp. 1022, it was held that physical force to the case of an injury which, and mental incapacity to prepare and by its exceptional severity, should present the claim or give directions for render the plaintiff physically and its preparation and presentation, durmentally impotent until the statutory ing an entire statutory period of three period has passed by. If the desig- months, will entitle the injured pernated period constituted an absolute son to a reasonable additional time limitation it would be necessarily after the disability is removed, and arbitrary and inflexible in its opera- that both the incapacity of the plaintion, and the questions suggested tiff and sufficiency of the excuse, as would be for the consideration of the well as the amount of extension which legislature alone. But, being the mere should be allowed, are facts for the designation of a period of time in its jury to decide. Hungerford v. Waverrelation to one in a series of practical ly (1908) 125 App. Div. 311, 109 N. Y. proceedings designed for the enforce- Supp. 438, also recognizes the inability ment of a right and the redress of a of the injured party to comply with wrong, the plaintiff must be held only the requirements for notice as an exto the general rule requiring substan- cuse, but finds the evidence insufficient tial compliance, and will be absolved to show such inability as would from the consequences of inevitable amount to an excuse. And in Winter failure, where he has done all which v. Niagara Falls (1907) 190 N. Y. the acts of the defendant permit him- 198, 123 Am. St. Rep. 540, 82 N. E. to do.

The provision of the 1101, 13 Ann. Cas. 486, reversing on charter requiring preliminary notice certified questions (1907) 119 App. of an intention to sue attaches only, Div. 586, 104 N. Y. Supp. 39, it is intias has been said, as a condition pre- mated that failure to give, or delay cedent to the commencement of an in giving, notice, may be excused when action against the village, ár. and, caused by the inability of the injured if compliance with the condition is person to comply. rendered temporarily impossible by And immature infancy has been dethe wrongful act of the defendant, it :lared to be such a physical and mental would be monstrous to allow the de- incapacity as excuses the failure to fendant to assert that fact as a de- give the notice required by a statute fense to the action. The requirement of the kind under consideration hereof notice necessarily presupposes the Thus, in Murphy v. Ft. Edward existence of an individual capable of (1915) 213 N. Y. 397, 107 N. E. 716, giving it, and not one deprived of that Ann. Cas. 1916C, 1040, 9 N. C. C. A. power by the operation of the very 279, affirming (1913) 159 App. Div. wrong to be redressed. That the de- 471, 144 N. Y. Supp. 451, which refendant should be permitted to take versed on rehearing (1913) 158 advantage of its own wrong is clearly App. Div. 342, 143 N. Y. Supp. 378, in

holding that an infant five years of Certainly any child only five years age was as a matter of law so inca- old has not reached such maturity and pacitated as to be excused from giv- capacity, either physical or mental, ing notice of an injury within sixty that he should seek to know his rights, days of the accident, as required by or could understand them if stated, or a statute dealing with the liability of apprehend the need of searching out municipalities for torts, the court or enforcing any legal remedies besaid: "Municipal liability for injuries cause of their invasion." In Winter is a matter that is within the control v. Niagara Falls (1907) 190 N. Y. 198, of the legislature, and when it is en- 123 Am. St. Rep. 540, 82 N. E. 1101, 13 acted what that liability shall be, and Ann. Cas. 486, answering questions the conditions upon which it may be certified on appeal from (1907) 119 enforced are prescribed, the statutory App. Div. 586, 104 N. Y. Supp. 39, it provisions are controlling upon the was held that in the absence of evisubject. To require the presentation dence showing inability to give notice of a claim within a specified time is within the thirty days specified in the quite a reasonable provision; inas- statute under consideration, the failmmuch as thereby the municipality is ure of an infant eighteen years of age, afforded a measure of protection who, it was said, was presumably able against stale claims, or the possible to give notice, to give notice within connivance of corrupt officials. It the thirty days, precluded recovery, permitted an investigation into the infancy alone not being regarded as a occurrence to be had at a time when sufficient excuse. the evidence relating to it might more And in McDonald v. Spring Valley readily be collected. The provision (1918) 285 Ill. 52, 2 A.L.R. 1359, 120 is not so rigid as to be beyond à con- N. E. 476, reversing (1918) 209 Ill. struction which admits of a substan- App. 7, applying the rule that it would tial compliance with its requirement, be unreasonable so to construe a stator of an excuse for delay in perform- ute requiring notice of injury as to reance, when caused by the inability of quire that to be done which is utterly the injured person to comply.

impossible of performance, it was In this state the maxim that the law held that an infant who, because of does not seek to compel a man to do his tender years (seven years of age), that which he cannot possibly perform is physically and mentally incapable has been made the basis for the princi. of giving the required notice, is thereple that physical and mental inability by relieved of compliance with the to comply with a statutory provision statute. In this case the court, referof the kind under consideration ex- ring to a statute which required nocuses the noncompliance. ... We tice within six months of the injury, are of the opinion that immature in- said: “It must be presumed that the fancy, which includes the age of five legislature, in enacting such a statyears, is, as a matter of law, a condi- ute as the one under consideration, tion of physical and mental inability did not intend, by the general lanexcusing compliance with the require- guage used, to include within its proment of § 341. It is reasonable to visions a class of persons which the conclude that inability is attributable law has universally recognized' to be to a first period of infancy and ability utterly devoid of responsibility. .. is attributable to a final period, as a It is not improper to say that if the matter of law, and through a period construction insisted upon by appellee lying between those two the question were adopted it would undoubtedly of ability is a question of fact to be render the act unconstitutional, as submitted to and determined by the depriving appellant of due process of jury. ... It is not necessary now

law. The act is meant to apply only to determine the age at which the first to those who are mentally and physi. period ends and that at which the fi- eally capable of comprehending and nal period begins; indeed, they might complying with its terms. differ with the facts of different cases. Common experience tells us that the

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cases in which the exception to this and render him unable to attend to statute would be applied are very few, the giving of notice, the court said: and that in a great majority of cases "It is earnestly contended by the rethere is not such disability as would spondent-and the great weight of make compliance with the statute im- authority is to the effect--that the possible. It would be unreasonable to question of whether or not the claimso construe this statute as to make it ant was incapacitated from presentappear that the legislature intended, ing his claim within the time required in these few cases, to require that to by the law is a question for the jury, be done which is utterly impossi- and, being a pure question of fact, it ble of performance. It cannot be con- must necessarily be so under our Controverted that a minor is incapable stitution and laws. It is, however, of appointing an agent or an attorney, contended by the appellant that the and it cannot be successfully contend- incapacity must be a mental incapaced that the statute can be complied ity, and not a physical one; that a with by the filing of the required no- plaintiff is not compelled to present tice by the father, mother, or some his claim in person, and that it is not friend of the child as next friend. usual for him to do so; that he may be While the parent of a minor is its physically incapacitated, and yet be natural guardian, he cannot be said able to file his claim through a friend to be the agent or attorney for the or attorney. This is, no doubt, true child. A child with a meritorious in a measure; and yet it cannot be cause of action, but incapable of ini- questioned that if, by reason of the tiating any proceeding for its enforce- injury, the mind of the injured perment, will not be left to the whim or son is so affected that it cannot act mercy of some self-constituted next intelligently, it would be a good excuse friend to enforce its rights. The dec- for not presenting the claim within the laration disclosed that appellant was time, and it might be that there would mentally and physically incapable of be such physical agony and pain as giving the notice required by the stat- would equally prevent the doing of ute, and she therefore did not come any business whatever by the plainwithin the provisions of this statute tiff. We think the general rule is that as properly construed.”

it must be shown that there is such And in Tulsa y. Wells (1920) 79 physical or mental incapacity as to Okla. 39, 191 Pac. 186, it was again make it impossible for the injured held that the failure to give the re- person to procure the notice to be quired notice may be excused on ac- served, and, if there is an actual incount of the incompetency of the in- capacity, it makes very little difference jured person by reason of infancy; in reason whether the incapacity is and, applying the rule, the court up- mental or physical.” And in Ehrhardt held an instruction in which the trial v. Seattle (1903) 33 Wash. 664, 74 court let the jury decide whether or Pac. 827, it was held that an alleganot the plaintiff, then thirteen years tion that plaintiff was disabled from of age, was of such immature age as attending to or transacting any busiwould excuse his failure to give notice ness during the statutory period was within the statutory period.

not subject to demurrer on the ground And in Washington, construing that it did not allege sufficient excuse charter provisions which required no- for failure to give notice within the tice within one month under penalty statutory period; but on a second apof having the suit barred, it has been peal (reported in (1905) 40 Wash. held that actual incapacity, physical 221, 82 Pac. 296) from a judgment for or mental, excuses noncompliance. plaintiff on the merits, it was held Thus, in Born v. Spokane (1902) 27 that a showing that plaintiff suffered Wash. 719, 68 Pac. 386, in upholding an great pain a portion of the period, and excuse of incapacity where the plain- may have suffered some pain all the tiff was so crippled by the accident as time, but that he was not disabled from to confine him to his bed for ten weeks transacting all business, but, on the

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contrary, gave instructions as to the critical physical condition, and was care of his team, and was able to go unable to draft and serve the notice, to his doctor's office several blocks and did not then know, nor did he yet distant, was insufficient to excuse an know, that the cause of action had acomission to give the notice required by crued to him, the court took the broad the statute. However, the Washing- ground that the plaintiff had the conton courts, as is shown infra, II. b, stitutional right to sue for the injury, have not followed this rule in the case and held that the requirement of noof statutory provisions, and thereby tice within forty-eight hours was void, have left the true Washington rule as denying him due process of law. in some doubt, because the later cases, And see Hughes V. Fond du Lac while apparently conflicting with the (1889) 73 Wis. 380, 41 N. W. 407, Born and Ehrhardt Cases (Wash.) su- where, in discussing the effect to be pra, do not expressly overrule them. given a provision requiring notice Nor do they expressly distinguish within five days, the court, arguendo, them, although in several instances said: I should have great doubt the fact has been noted that they were about the validity of the provision redecided under charter provisions for quiring the notice to be given within notice, whereas the later cases, which five days of the injury, even if the reach a contrary conclusion were

liability of the city in the case was decided under general statutes. And wholly statutory. The time fixed is in fact some of the judges apparently unreasonably short, and in

many have attached some significance to cases could not be complied with. The the difference in the sources of the injured person might be unconscious, requirements as to notice.

or so seriously hurt that he could not There is considerable authority to state the place where, and the time the effect that so to construe statutory when, such injury was received, and provisions of the character under con- the nature of the same,' within that sideration as to make them apply to period; so that the remedy given is persons who are mentally and physi- coupled with an impossible condition. cally incapable of giving the required Such a provision is unreasonable and notice within the period specified unjust, and fairly obnoxious to all the would render the statutes unconstitu- objections taken to the enactments in tional, as depriving such persons of due Durkee v. Janesville (1871) 28 Wis. process of law. McDonald v. Spring 464, 9 Am. Rep. 500, and Hincks V. Valley (1918) 285 Ill. 52, 2 A.L.R. Milwaukee (1879) 46 Wis. 559, 32 Am. 1359, 120 N. E. 476, reversing (1918) Rep. 735, 1 N. W. 230. It is an arbi209 Ill. App. 7 (see case as quoted trary and unreasonable provision, supra); RANDOLPH v. SPRINGFIELD (re- which professes to give a remedy for ported herewith) ante, 612; Williams an injury, but annexes to it a condiv. Port Chester (1902) 72 App. Div. tion which in many cases cannot be 505, 76 N. Y. Supp. 631, reaffirmed on complied with because the time fixed subsequent appeal in (1904) 97 App. for serving the notice is so short." Div. 84, 89 N. Y. Supp. 671, which was

b. Failure not excusable. affirmed without opinion in (1905) 183 N. Y. 550, 76 N. E. 1116; Barry v. Port

There have been a few decisions to Jervis (1901) 64 App. Div. 268, 72 N.

the general effect that incompetency Y. Supp. 104, 10 Am. Neg. Rep. 539.

or incapacity resulting from an inIn Barry v. Port Jervis (N. Y.) supra,

jury does not excuse failure to give where the notice was not given until

the notice to a municipality which the thirty days after the injury, instead statute makes a prerequisite to the of within forty-eight hours, as re- maintenance of an action against it. quired, and the reason given for the To the effect that noncompliance with delay was that the serious effects of a statute requiring notice within a the injury did not develop until several specified time cannot be excused, see days after the injury, and when the Reid v. Kansas City (1917) 195 Mo. same did develop, plaintiff was in a App. 457, 192 S. W. 1047 (apparently

31 A.L.R.-40.

see

this case is, in effect, overruled by the supra, II. a, although, as there stated, contrary decisions in the reported case the Washington courts seem to have [RANDOLPH V. SPRINGFIELD, ante, attached some significance to the fact 612]; Ransom v. South Bend (1913) that the later cases involved a stat76 Wash. 396, 136 Pac. 365, and Benson utory requirement, whereas the earlier v. Seattle (1914) 78 Wash. 541, 139 cases dealt only with requirements imPac. 501. In connection with the posed by city charters. See, for inabove-cited Washington cases, stance, the concurring opinion of Ellis, Born v. Spokane (1902) 27 Wash. 719, J., in Haynes v. Seattle (1915) 87 68 Pac. 386, and Ehrhardt v. Seattle Wash. 375, 151 Pac. 789, 10 N. C. C. A. (1903) 33 Wash. 664, 74 Pac. 827, etc. 461. as set out and discussed supra, Il. a,

And the fact that the injured perand infra, this subdivision.

son was an infant has been held not Thus, in Ransom v. South Bend to excuse failure to give notice of the (1913) 76 Wash. 396, 136 Pac. 365, pro- injury, as required by a statute proceeding upon the theory that to hold viding that written notice must be otherwise would constitute judicial given in “those [actions] founded on legislation, it was held that failure to injury to the person." Palmer v. comply with a mandatory statutory Cedar Rapids (1914) 165 Iowa, 595, provision requiring notice within 146 N. W. 827, Ann. Cas. 1916E, 558. thirty days could not be excused by And the same has been held under a proof of physical and mental incapa- statute providing that “all claims" city resulting from the injury, even for damages growing out of negligence though it extended through the whole must be presented to the city within period. And again, in Benson v. a certain period after such a claim Seattle (1914) 78 Wash. 541, 139 Pac. arises. Davidson v. Muskegon (1897) 501, the court approved the decision in 111 Mich. 454, 69 N. W. 670, 1 Am. the Ransom Case to the effect that Neg. Rep. 89. And it has been held failure to file the notice within the that an Iowa statute providing that acstatutory period cannot be excused by tions against cities must be brought incapacity during such time, and within six months unless notice of added that in the case at bar the plain- claims for injury be given within tiff was not incapacitated for the full ninety days, in "all cases of personal statutory period, but only for the first injuries," applies to both adults and half thereof. And in Haynes v. infants, so that a general Statute of Seattle (1914) 83 Wash. 51, 145 Pac.

Limitations provision which declares 73, 10 N. C. C. A. 450, the Washington

that minors shall have one year after supreme court, without dissent, held the termination of their disability that failure to comply strictly with

within which to commence an action the mandatory provisions of a statute

does not excuse failure to give notice which rendered effective the provi- of an injury within ninety days theresions of a municipal charter, requir- of. Morgan v. Des Moines (1894) 8 ing verified notice of injury within

C. C. A, 569, 19 U.S. App. 593, 60 Fed. thirty days, barred recovery, although 209, determining the effect of Iowa the injured person was incapacitated Code, § 2535, on Iowa Act Feb. 17, from giving the notice during the 1888, chap. 25, 8 1. whole period; but on rehearing, had

And that in New York infancy alone after the enactment of a statute con

does not excuse the giving of notice taining a saving clause applicable to within the statutory period, at least, cases of incapacity, it was held that where the infant is old enough so that the statute preserved the plaintiff's he presumably is able to cause the rights, and avoided the barring effect statutory notice to be given within of the noncompliance, because of in- the required time,-see Winter v. capacity during the charter period. Niagara Falls (1907) 190 N. Y. 198, As hereinbefore noted, these cases are 123 Am. St. Rep. 540, 82 N. E. 1101, in apparent conflict with earlier 13 Ann. Cas. 486, reversing on certified Washington cases which are set out questions (1907) 119 App. Div. 586,

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