Niagara Falls (1907) 190 N. Y. 198, 123 Am. St. Rep. 540, 82 N. E. 1101, 13 Ann. Cas. 486; Forsyth v. Oswego (1908) 191 N. Y. 441, 123 Am. St. Rep. 605, 84 N. E. 392; Murphy v. Ft. Edward (1915) 213 N. Y. 397, 107 N. E. 716, Ann. Cas. 1916C, 1040, 9 N. C. C. A. 279, affirming (1913) 159 App. Div. 471, 144 N. Y. Supp. 451, which reversed on rehearing (1913) 158 App. Div. 342, 143 N. Y. Supp. 378; Rogers v. Port Chester (1922) 234 N. Y. 182, 137 N. E. 19, 22 N. C. C. A. 789 (holding, however, that proof of mental and physical incapacity was not made); Green v. Port Jervis (1900) 55 App. Div. 58, 66 N. Y. Supp. 1042; Hungerford v. Waverly (1908) 125 App. Div. 311, 109 N. Y. Supp. 438; Terrell v. Washington (1912) 158 N. C. 281, 73 S. E. 888; Hartsell v. Asheville (1914) 166 N. C. 633, 82 S. E. 946, on rehearing of (1913) 164 N. C. 193, 80 S. E. 226; Tulsa v. Wells (1920) 79 Okla. 39, 191 Pac. 186; Born v. Spokane (1902) 27 Wash. 719, 68 Pac. 386; Ehrhardt v. Seattle (1903) 33 Wash. 664, 74 Pac. 827, on subsequent appeal in (1905) 40 Wash. 221, 82 Pac. 296.

For instance, in the reported case (RANDOLPH V. SPRINGFIELD, ante, 612), it is held that a statute requiring notice of injury within thirty days does not apply to one injured so severely as to be unable to give the notice during such period, so as to bar the maintaining of an action founded upon a common-law right against a municipal corporation for the injury. And in Webster v. Beaver Dam (Fed.) supra, it was held that plaintiff was excused from 'service of notice within fifteen days, where she was rendered physically incapable of giving such notice within the time, and gave it as soon as she was able to attend to it; at least, where the right to maintain an action for such an injury is given by the common law.

And in Terrell v. Washington (1912) 158 N. C. 281, 73 S. E. 888, where by reason of the injury complained of the plaintiff was so affected, both mentally and physically, during the statutory period, that he was unable to transact business or to present

his claim, but he did so within a reasonable time after he was restored sufficiently to do so, in holding that the delay was excused, the court said: "The general rule is such cases seems to be that, in order to excuse a strict compliance with the provision, it must be shown that there is such physical or mental incapacity as to make it impossible for the injured person, by any ordinary means at his command, to procure service of the notice or a filing of the claim, whichever is required, and if there is an actual incapacity, it can make no practical difference in reason whether it is mental or physical in its nature.

. It may very properly be said that it would, in truth, shock the sense of justice and right if this provision was construed so as to hold the notice of the plaintiff's claim insufficient under the circumstances. It is an accepted maxim that the law does not seek to compel that to be done which is impossible. It cannot reasonably be presumed that the intention of the legislature in enacting this charter would lead to any such unjust conclusion, and it is a fundamental canon of interpretation that a thing which is within the letter of a statute is not within the statute itself, unless it is within the intention of the makers." And in Hartsell v. Asheville (1914) 166 N. C. 633, 82 S. E. 946, where the statute required notice within ninety days, and it appeared that the plaintiff for eight weeks was absolutely helpless, and practically so for three months, during all of which time she was confined in a hospital, and for two months more after removal to her home, the court recognized the rule that such physical or mental incapacity as makes it impossible, by any ordinary means at hand, to procure service of the notice, will excuse delay, and held that on the facts the case should have been submitted to the jury to determine whether, by reason of plaintiff's physical or mental condition, she was unable during the whole ninety days to give, or to cause to be given, to the city, notice of her injury.

And in the Oklahoma case of Tulsa

should give the defendant specific information concerning the accident, through a certain channel, and within a given period, as a condition precedent to the maintenance of an action. If the defendant wilfully refuse to receive the information, or to permit it to be given, if its officers, acting under its orders, seize the plaintiff and hold him fast during the whole of the prescribed period, so that the conveyance of the information be rendered a physical impossibility, the defendant would hardly be permitted to plead the consequent default as a defense; and the same reasoning would seem to apply with equal force to the case of an injury which, by its exceptional severity, should render the plaintiff physically and mentally impotent until the statutory period has passed by. If the designated period constituted an absolute limitation it would be necessarily arbitrary and inflexible in its operation, and the questions suggested would be for the consideration of the legislature alone. But, being the mere designation of a period of time in its relation to one in a series of practical proceedings designed for the enforcement of a right and the redress of a wrong, the plaintiff must be held only to the general rule requiring substantial compliance, and will be absolved from the consequences of inevitable failure, where he has done all which the acts of the defendant permit himto do. . . The provision of the charter requiring preliminary notice of an intention to sue attaches only, as has been said, as a condition precedent to the commencement of an action against the village, . . and, if compliance with the condition is rendered temporarily impossible by the wrongful act of the defendant, it would be monstrous to allow the defendant to assert that fact as defense to the action. The requirement of notice necessarily presupposes the existence of an individual capable of giving it, and not one deprived of that power by the operation of the very wrong to be redressed. That the defendant should be permitted to take advantage of its own wrong is clearly

not within the purview of the law." And in 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, where the statute provided for notice within thirty days, it was held that the giving of notice forty-three days after the accident constituted a substantial compliance with the statute, it appearing that the notice was given as soon as the plaintiff's mental and physical condition permitted. And in Forsyth v. Oswego (1908) 191 N. Y. 441, 123 Am. St. Rep. 605, 84 N. E. 392, reversing (1906) 114 App. Div. 616, 99 N. Y. Supp. 1022, it was held that physical and mental incapacity to prepare and present the claim or give directions for its preparation and presentation, during an entire statutory period of three months, will entitle the injured person to a reasonable additional time after the disability is removed, and that both the incapacity of the plaintiff and sufficiency of the excuse, as well as the amount of extension which should be allowed, are facts for the jury to decide. Hungerford v. Waverly (1908) 125 App. Div. 311, 109 N. Y. Supp. 438, also recognizes the inability of the injured party to comply with the requirements for notice as an excuse, but finds the evidence insufficient to show such inability as would amount to an excuse. And in Winter v. Niagara Falls (1907) 190 N. Y. 198, 123 Am. St. Rep. 540, 82 N. E. 1101, 13 Ann. Cas. 486, reversing on certified questions (1907) 119 App. Div. 586, 104 N. Y. Supp. 39, it is intimated that failure to give, or delay in giving, notice, may be excused when caused by the inability of the injured person to comply.

And immature infancy has been declared to be such a physical and mental incapacity as excuses the failure to give the notice required by a statute of the kind under consideration herein. Thus, in Murphy v. Ft. Edward (1915) 213 N. Y. 397, 107 N. E. 716, Ann. Cas. 1916C, 1040, 9 N. C. C. A. 279, affirming (1913) 159 App. Div. 471, 144 N. Y. Supp. 451, which reversed on rehearing (1913) 158 App. Div. 342, 143 N. Y. Supp. 378, in

holding that an infant five years of age was as a matter of law so incapacitated as to be excused from giving notice of an injury within sixty days of the accident, as required by a statute dealing with the liability of municipalities for torts, the court said: "Municipal liability for injuries is a matter that is within the control of the legislature, and when it is enacted what that liability shall be, and the conditions upon which it may be enforced are prescribed, the statutory provisions are controlling upon the subject. To require the presentation of a claim within a specified time is quite a reasonable provision; inasmmuch as thereby the municipality is afforded a measure of protection against stale claims, or the possible connivance of corrupt officials. It permitted an investigation into the occurrence to be had at a time when the evidence relating to it might more readily be collected. The provision is not so rigid as to be beyond a construction which admits of a substantial compliance with its requirement, or of an excuse for delay in performance, when caused by the inability of the injured person to comply. . . In this state the maxim that the law does not seek to compel a man to do that which he cannot possibly perform has been made the basis for the principle that physical and mental inability to comply with a statutory provision of the kind under consideration excuses the noncompliance. . . . We are of the opinion that immature infancy, which includes the age of five years, is, as a matter of law, a condition of physical and mental inability excusing compliance with the requirement of § 341. It is reasonable to conclude that inability is attributable to a first period of infancy and ability is attributable to a final period, as a matter of law, and through a period lying between those two the question of ability is a question of fact to be submitted to and determined by the jury. . . . It is not necessary now to determine the age at which the first period ends and that at which the final period begins; indeed, they might differ with the facts of different cases.

Certainly any child only five years old has not reached such maturity and capacity, either physical or mental, that he should seek to know his rights, or could understand them if stated, or apprehend the need of searching out or enforcing any legal remedies because of their invasion." In Winter v. Niagara Falls (1907) 190 N. Y. 198, 123 Am. St. Rep. 540, 82 N. E. 1101, 13 Ann. Cas. 486, answering questions certified on appeal from (1907) 119 App. Div. 586, 104 N. Y. Supp. 39, it was held that in the absence of evidence showing inability to give notice within the thirty days specified in the statute under consideration, the failure of an infant eighteen years of age, who, it was said, was presumably able to give notice, to give notice within the thirty days, precluded recovery, infancy alone not being regarded as a sufficient excuse.

And in McDonald v. Spring Valley (1918) 285 Ill. 52, 2 A.L.R. 1359, 120 N. E. 476, reversing (1918) 209 Ill. App. 7, applying the rule that it would be unreasonable so to construe a statute requiring notice of injury as to require that to be done which is utterly impossible of performance, it was held that an infant who, because of his tender years (seven years of age), is physically and mentally incapable of giving the required notice, is thereby relieved of compliance with the statute. In this case the court, referring to a statute which required notice within six months of the injury, said: "It must be presumed that the legislature, in enacting such a statute as the one under consideration, did not intend, by the general language used, to include within its provisions a class of persons which the law has universally recognized to be utterly devoid of responsibility.. . . It is not improper to say that if the construction insisted upon by appellee were adopted it would undoubtedly render the act unconstitutional, as depriving appellant of due process of law. The act is meant to apply only to those who are mentally and physi eally capable of comprehending and complying with its terms.

Common experience tells us that the

cases in which the exception to this statute would be applied are very few, and that in a great majority of cases there is not such disability as would make compliance with the statute impossible. It would be unreasonable to so construe this statute as to make it appear that the legislature intended, in these few cases, to require that to be done which is utterly impossible of performance. It cannot be controverted that a minor is incapable of appointing an agent or an attorney, and it cannot be successfully contended that the statute can be complied with by the filing of the required notice by the father, mother, or some friend of the child as next friend. While the parent of a minor is its natural guardian, he cannot be said to be the agent or attorney for the child. A child with a meritorious cause of action, but incapable of initiating any proceeding for its enforcement, will not be left to the whim or mercy of some self-constituted next friend to enforce its rights. The declaration disclosed that appellant was mentally and physically incapable of giving the notice required by the statute, and she therefore did not come within the provisions of this statute as properly construed."

And in Tulsa v. Wells (1920) 79 Okla. 39, 191 Pac. 186, it was again held that the failure to give the required notice may be excused on account of the incompetency of the injured person by reason of infancy; and, applying the rule, the court upheld an instruction in which the trial court let the jury decide whether or not the plaintiff, then thirteen years of age, was of such immature age as would excuse his failure to give notice within the statutory period.

And in Washington, construing charter provisions which required notice within one month under penalty of having the suit barred, it has been held that actual incapacity, physical or mental, excuses noncompliance. Thus, in Born v. Spokane (1902) 27 Wash. 719, 68 Pac. 386, in upholding an excuse of incapacity where the plaintiff was so crippled by the accident as to confine him to his bed for ten weeks

and render him unable to attend to the giving of notice, the court said: "It is earnestly contended by the respondent and the great weight of authority is to the effect-that the question of whether or not the claimant was incapacitated from presenting his claim within the time required by the law is a question for the jury, and, being a pure question of fact, it must necessarily be so under our Constitution and laws. It is, however, contended by the appellant that the incapacity must be a mental incapacity, and not a physical one; that a plaintiff is not compelled to present his claim in person, and that it is not usual for him to do so; that he may be physically incapacitated, and yet be able to file his claim through a friend or attorney. This is, no doubt, true in a measure; and yet it cannot be questioned that if, by reason of the injury, the mind of the injured person is so affected that it cannot act Intelligently, it would be a good excuse for not presenting the claim within the time, and it might be that there would be such physical agony and pain as would equally prevent the doing of any business whatever by the plaintiff. We think the general rule is that it must be shown that there is such physical or mental incapacity as to make it impossible for the injured person to procure the notice to be served, and, if there is an actual incapacity, it makes very little difference in reason whether the incapacity is mental or physical." And in Ehrhardt v. Seattle (1903) 33 Wash. 664, 74 Pac. 827, it was held that an allegation that plaintiff was disabled from attending to or transacting any business during the statutory period was not subject to demurrer on the ground that it did not allege sufficient excuse for failure to give notice within the statutory period; but on a second appeal (reported in (1905) 40 Wash. 221, 82 Pac. 296) from a judgment for plaintiff on the merits, it was held that a showing that plaintiff suffered great pain a portion of the period, and may have suffered some pain all the time, but that he was not disabled from transacting all business, but, on the