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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.

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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, II. 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,

II. a.

104 N. Y. Supp. 39. And see Norton the removal of the disability. In this v. New York (1896) 16 Misc. 303, 38 case the statutory period was six N. Y. Supp. 90. Also compare Murphy months, and it appeared that the plainv. Ft. Edward (1915) 213 N. Y. 397, tiff was actually incapacitated only 107 N. E. 716, Ann. Cas. 1916C, 1040, for a period of from eight to sixteen 9 N. C. C. A. 279, as set out supra, weeks. In connection with these

Nebraska cases, it is of interest that And in the Washington case of Ran- Nebraska Comp. Stat. 1922, § 4384, exsom v. South Bend (1913) 76 Wash. pressly provides that if the person 396, 136 Pac. 365, the court adhered injured be deprived, by reason of the to the rule that incapacity will not ex- injury, of the physical or mental cacuse noncompliance with a statutory pacity to give the notice required, the provision for notice, even though the time shall be extended for the period original liability of the municipality of ten days after the incapacity is reis founded upon the common law. moved. See Harris v. Genoa (1923) However, in a number of cases

Neb. --, 195 N. W. 953, as set out which have held that statutory provi- infra, III. b. sions as to notice are mandatory, and And in Connecticut, where the liathat noncompliance cannot be excused, bility of municipalities for defective stress has been laid upon the fact that highways is purely statutory, it has the liability of municipalities is purely been held that compliance with the statutory, from which it is argued that statutory provisions requiring notice no one has a right to object to a stat- of an injury within a specified period, utory modification thereof, or imposi- is a prerequisite to a right of action, tion of a condition precedent.

so that failure cannot be excused. Thus, in Nebraska, where the lia- Applying this rule, it was held in bility of a city for injury rests ex, Crocker v. Hartford (1895) 66 Conn. clusively upon express or implied stat- 387, 34 Atl. 98, that failure to give utory provisions, it has been held that notice of injury resulting from a fall incapacity caused by the injury nei

upon an icy walk, within the fifteen ther extends the time nor excuses fail- days as required by statute, could not ure to give the notice required by a be excused by proof that the injury statute making notice a condition pre- was internal and did not manifest itcedent to recovery. It was so held in self until more than fifteen days after Schmidt v. Fremont (1903) 70 Neb. the fall, 577, 97 N. W. 830, which was followed And in Touhey'v. Decatur (1911) in Ellis v. Kearney (1907) 80 Neb. 175 Ind. 98, 32 L.R.A.(N.S.) 350, 93 51, 113 N. W. 803, in which it was said N. E. 540, 3 N. C. C. A. 390, it was held that unconsciousness was not an ex- that the fact that one injured by a cuse; and" in McCollum v. South defect in a city, street is rendered Omaha (1909) 84 Neb. 413, 121 N. W. mentally and physically incompetent 438, in which it was declared that the

by the injury does not excuse the fail. plaintiff was not excused, even though ure to give the notice to the city which the accident deprived him of con- the statute makes a prerequisite to the sciousness for more than the statutory maintenance against it of an action period. In Hastings v. Foxworthy for personal injuries, which latter (1895) 45 Neb. 676, 34 L.R.A. 321, 63 right is purely statutory. The court N. W. 955, it was held that the mental said: "The liability of cities and and physical liability of one injured towns for injuries resulting from deon an icy sidewalk, during a portion fects in the streets, alleys, highways, of the period allowed by statute for and bridges is implied from the prothe giving of notice of the accident visions of the statutes which impose and claim, which notice is a condition the duty upon such municipalities to precedent to the maintenance of an

keep the streets, alleys, highways, and action, will not extend the time of

bridges in repair, and give them ample performance, provided a reasonable power to provide the means necessary time remains within that period after to make such repairs. Said liability rests exclusively upon said statutes. prive an injured person of due process It is competent for the legislature to of law, even though the injury was limit or remove it entirely. The claim such as rendered him incompetent to being a statutory one, it is clear that give the required notice during the § 8962, supra, providing the con- statutory period. It was so held in ditions upon which an action can be the following cases: Touhey v. Demaintained, is not in violation of the catur (Ind.) (see this case as quoted 14th Amendment to the Constitu- supra); Peoples v. Valparaiso (Ind.) tion of the United States, or of article supra. And see Schmidt y. Fremont 1, § 23, of the Constitution of this (1903) 70 Neb. 577, 97 N. W. 830. state. This is true, because a duty And in Washington, without referimposed by the legislature upon cities ence to the origin of the original right or towns, or a liability against them of action, it has been held that mandacreated by the legislature, may be tory provisions as to notice within a qualified, limited, or removed by that specified time do not render the act body. No one complaining of the unconstitutional, even as against a omission to perform such duty can person who was totally incapacitated successfully object to the qualifica- during the whole period. Haynes v. tions and limitations imposed by the Seattle (1914) 83 Wash. 51, 145 Pac. legislature. Under $ 8962, supra, no 73, 10 N. C. C. A. 450. On rehearing, action can be maintained for an in- the judgment in this case was rejury ‘resulting from any defect in the versed in (1915) 87 Wash. 375, 151 condition of any street, alley, highway, Pac. 789, 10 N. C. C. A. 461, but the or bridge,' unless the written notice reversal was upon the ground that the required thereby is given. The pro- plaintiff's rights were saved by a statvisions of said section are mandatory, ute enacted before the original deand the giving of said notice is a con- cision became final. See infra, III. b. dition precedent to a right of action.” That under the charter of Montreal

And in Peoples v. Valparaiso (1912) (63 Vict. chap. 58, art. 536), which 178 Ind. 673, 100 N. E. 70, applying requires notice within thirty days, the rule that, where the liability of the ignorance of the requirement does not city in the first instance is statutory, excuse the giving of the notice, see a provision requiring notice of in- Dupuis v. Montreal (1918) Rap. Jud. jury is simply a limitation on that lia- Quebec 56 C. S. 121. bility, so that one seeking the benefit

III. Statutes making provision for delay of the statute must show compliance

or failure, with its provisions, it was held that the fact that an injured person was

a. In general. unable to give the required notice af- In some of the statutes dealing with fords no excuse for a failure to comply the question of notice to municipaliwith the terms of the statute. In this ties in cases of injury, provision is case it was set up that the notice was made for failure to give notice by desnot given (1) because of the fact that ignating certain grounds which will immediately after the accident, and excuse noncompliance. Under stat. for 120 days thereafter, the injured utes of this character, the question is person was sick and confined to his bed largely one of fact as to whether or and unable to give the notice, and not the plaintiff has brought himself (2) that he was a minor, ten years of within the saving provision. age, and incapable of appointing an agent; but the court ruled that no

b. Physical or mental incapacity." excuse could be effective to avoid fail- In Massachusetts the statute (Stat. ure to give the notice.

1877, chap. 234, 88 3, 4; Pub. Stat. And it has been argued that where

chap. 52, 8S 19, 21; Rev. Laws, chap. actions for personal injury are purely

51, $8 20, 21) requires notice within statutory, the statutory creation of a thirty days, unless from "physical or condition precedent, such as a require- mental incapacity" it is impossible for ment that notice be given, does not de- the person injured to give such notice, in which case he may give notice with- order to relieve pain, that she did not in ten days after such incapacity is sleep well, and was "pretty uncomremoved.

fortable;' that she lived with her Under such a statute the sufficiency

brother and sister, whom she, imof the excuse is largely one of fact, mediately after the occurrence, told and where the evidence of incapacity, about the accident, including its time of which the injured person has the and place; and that her sister and burden of proof, is conflicting, the "plenty of people" came to see her at question is for the jury. Thus, in the hospital. Welch v. Gardner (1882) 133 Mass. In Goodwin v. Fall River (1917) 228 529, where the plaintiff contended that Mass. 529, 117 N. E. 796, the court during the statutory period he was un- defined the physical or mental incapacable to leave his bed, was sick, nerv, ity which, under the Massachusetts ous, dizzy, and delirious, unable to

statute, enlarges the period of limitathink of anything, or attend to any tion within which notice as a condi. business, all of which was controvert- tion precedent to a right to maintain ed, it was held that while the evidence

an action must be given, as "an inawas legally sufficient to authorize a bility of the person injured to give finding for the plaintiff, the question the notice himself, or through another, was one of fact for the jury.

which results from a loss of the faculAnd in Mitchell v. Worcester (1880) ties of the mind, or from a lack of 129 Mass. 525, it was held that the power to use the mind because of the plaintiff had not sustained the burden loss or impairment of the organs of of proof and that failure to give notice the body," and held that mere physical was not excused, where he was not so inability to move or to be moved about physically or mentally incapacitated is not evidence of mental or physical as to be unable to give notice himself, incapacity; also, that ignorance of the or through another. And in May v. facts upon which may depend the abilBoston (1890) 150 Mass. 517, 23 N. E. ity of the person injured to give notice 220, it was held that the burden of is not evidence of mental or physical proof that plaintiff was physically in- · condition, and that want of means to capacitated from giving the required employ assistance to give the notice, notice was not sustained by proof that i or to find out when the accident she was so injured by reason of a de

happened, is not evidence that the fective sidewalk that she was confined plaintiff was incapable of giving the to her bed; nor that she was mentally notice within thirty days because of incapacitated by evidence that her mental or physical incapacity. And head troubled her, that at times she in McNulty v. Cambridge (1881) 130 was dizzy and her mind visionary, that sometimes she was delirious at night,

Mass. 275; where plaintiff fell and

broke his leg, it was held that the fact and appeared worse after opiates were

that he was unable to leave his bed given her under a physician's directions, since such facts are not sufficient

during the period within which notice to prove that in her ordinary condition

was required, and that he did not know she had not sufficient mental capacity

how to write, constituted no evidence to give the notice. Again, in Town

of incapacity and was not sufficient send v. Boston (1919) 232 Mass. 451,

to show that it was impossible, within 122 N. E. 395, where plaintiff was in

the statute, to give the notice earlier. jured on an icy walk, it was held that

And in Lyons v. Cambridge (1882) 132 she did not sustain the burden of prov

Mass. 534, where plaintiff suffered ing an adequate excuse for failure to from a broken limb and was unable to give the required notice, by evidence leave her bed during the thirty-day that after her accident she was treated period, but it also appeared that she at a hospital for five weeks, and could was assisted home by a daughter, that good de al from shock, was kept under up; that she was suffering a plaintiff then told her husband, who

went to see the place of the accident, a great deal for two weeks in and that she was then taken to the

not sit


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