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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

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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 v. 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, $$ 3, 4; Pub. Stat. And it has been argued that where

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

51, 88 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 condibusiness, 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 · 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

Mass. 275; where plaintiff fell and sometimes she was delirious at night,

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 direc

during the period within which notice tions, since such facts are not sufficient

was required, and that he did not know to prove that in her ordinary condition 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 proy

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 not sit up; that she was suffering a plaintiff then told her husband, who good deal from shock, was kept under went to see the place of the accident, oliates a great deal for two weeks in and that she was then taken to the

hospital, but remained of clear mind, this case that plaintiff's rights were and was visited by members of her not affected by inaction on the part of family during the notice period, it was his father, or other relatives or friends held that there was no mental or other than a guardian. physical incapacity within the mean- Nebraska also has a statute (Comp. ing of the statute, which would excuse Stat. 1922, § 4384) providing that if failure to give the required notice. the person injured be deprived, by reaLikewise, in Saunders V. Boston son of the injury, of the physical or (1897) 167 Mass. 595, 46 N. E. 98, 1 mental capacity to give the notice Am. Neg. Rep. 448, it was held that within thirty days, the time of giving there was insufficient evidence to show such notice shall be extended for the inability to give notice, where the in- period of ten days after the incapacity jury was a severe sprain of the ankle, is removed. Construing and applying causing severe pain, and making it this statute in Harris v. Genoa (1923) impossible for the plaintiff to step on Neb. —, 195 N. W. 953, it was held the foot for two or three weeks, but that where a person injured on the she was able to tell her husband of street, and seeking to recover damages the injury on the same day, and her from a city, was mentally and physiphysician on his first visit, and she cally able to direct or procure the givsent to a lawyer within a week or ten ing of the notice required by the statdays after the accident.

ute for at least two weeks of the And infancy is not an excuse under thirty-day period, the fact that she beche Massachusetts statute which ap- came incapacitated to do so upon the plies to “any person” injured, and per- twenty-seventh day after the accident mits notice to be given by parents, did not excuse her failure to give noguardian, or any other person. Mad- tice within thirty days. den v. Springfield (1881) 131 Mass. 441. In Hall v. Spokane (1914) 79 Wash.

On the other hand, some Massa- 303, 140 Pac. 348, construing a charter chusetts cases have involved facts provision that claims must be presentwhich have been held sufficient to ex- ed "within thirty days after the incuse a failure to give notice within the jury or damage,” except that, “if the statutory period. Thus, in Barclay claimant is physically or mentally unv. Boston (1897) 167 Mass. 596, 46 N. able to present such claim within the E. 113, 1 Am. Neg. Rep. 449, on subse- time aforesaid, it may be presented quent appeal in (1899) 173 Mass. 310, and filed by someone in his behalf,” 53 N. E. 822, it was held that incapac- it has been held that the fact that an ity, within the meaning of the Massa- injured person was confined to her chusetts statute, might fairly be in- home and unable to attend to any busiferred, where deceased fel, injuring ness on the last day, but not so inher hip and her head, and was taken capacitated during the first twentyto a hospital, and her relatives were nine days, did not authorize a filing unable to locate her for ten days, and of the claim by another on the no reason appeared for her failing to thirtieth day, on the theory that she communicate with them if she had was “physically or mentally unable" been able, and it was shown that she to present her claim in person within became delirious within ten days after the thirty-day period, as required by the injury, and remained delirious and the defendant's charter. unable to transact business until her And in Haynes v. Seattle (1915) 87 death. And in Stoliker v. Boston Wash. 375, 151 Pac. 789, 10 N. C. C. A. (1910) 204 Mass. 522, 90 N. E. 927, it 461, on rehearing of (1914) 83 Wash. was held that incapacity to give notice 51, 145 Pac. 73, 10 N. C. C. A. 450, it was sufficiently shown by evidence was held that the enactment of a statthat plaintiff, apparently an adult, im- ute providing that if a claimant shall mediately became unconscious, and be incapacitated from verifying and ever since had been of unsound mind filing his claim within the time preand without any recollection of the scribed by a municipal charter, it may accident; and it was further held in be filed by another on his behalf, oper.

ated to save the rights of one against Eames v. Brattleboro (1882) 54 Vt. whom a judgment had gone for lack 471. of proper notice, which judgment, at And see Harris v. Fond du Lac the time of the enactment of the stat- (1899) 104 Wis. 44, 80 N. W. 66, whereute, had not become final because of in a charter provision that, where the the pendency of an appeal therefrom. person injured shall in consequence

of the injury be “bereft of reason, the c. Bereft of reason."

notice shall not be required until In Ray v. St. Paul (1890) 44 Minn.

thirty days after he has been fully re340, 46 N. W. 675, construing and ap- stored to consciousness," was held applying a statute which required no

plicable and given effect so as to rentice within thirty days unless the in

der a notice sufficient. jured party was “bereft of reason," it was held that the fact that the d. Where "unavoidably prevented." plaintiff's leg was broken by a com- In New Hampshire, by virtue of expound fracture, causing much suffer- press statutory provision, a traveler ing, to relieve which opiates were ad- receiving an injury from a defect in ministered as needed for more than a highway, and unavoidably prevented thirty days, but that his mind was not by accident, mistake, or misfortune, affected except by the pain, and he did and not from his own fault, from filing not suffer from delirium, was insuffi- his claim for damages within ten days, cient to show that plaintiff was “be- may apply to the court within six reft of reason,” or mentally incapac- months, and if the court is of the opinitated from attending to business, so ion that manifest injustice would as to exempt him from giving the otherwise be done, it may allow his notice.

claim to be filed. Under this statute In Gonyeau v. Milton (1876) 48 Vt. it has been held that one seriously in172, construing a statute which ex- jured and unavoidably prevented from pressly provided that if an injured per- filing the notice within ten days may, son is thereby “bereft of his reason" on petition, be granted leave to file he is excused from giving the statu- claim where justice manifestly retory notice, it was held that if a per- quires that he should have an opporson injured loses consciousness tem- tunity to prosecute it. Gitchell v. porarily, and then recovers his con- Andover (1879) 59 N. H. 363. Also, sciousness and continues so for one where ignorance of the law, without week, he will not be excused; but that any neglect or fault on the plaintiff's if, after the primary effects of the in- part, causes the delay, and manifest jury have passed, the mind cannot per- injustice would otherwise be done. form its functions, not because of Bolles v. Dalton (1879) 59 N. H. 479; mere pain or sickness, but because its Boyd v. Derry (1895) 68 N. H. 272, 38 functions are disordered, deranged, or Atl. 1005. abated so that he cannot transact such Whether the plaintiff was unavoidbusiness as pertains to the giving of ably prevented by accident, mistake, notice, he is “bereft of his reason," or misfortune from filing his claim in 80 as to be excused from giving any ten days, or whether his omission was notice, though this condition does not caused by his own fault, was held in continue for the full time within which Page v. Campton (1884) 63 N. H. 197, notice could be given. In so holding the to be a question of fact for the detercourt pointed out that the statute does mination of the trial court. not relieve the party from performing And where it is conceded that the his duty so long as the incapacity con- injured person was unavoidably pretinues, but that it absolutely relieves vented from filing the statement rehim from giving the notice if, in fact, quired by the statute within ten days he is. "bereft of his reason.”

after the injury, it has been held that And that a person injured is "bereft "manifest injustice” may be found of his reason” where he dies within from the fact that sufficient evidence half an hour after the injury, see is presented upon which a verdict

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