contrary, gave instructions as to the care of his team, and was able to go to his doctor's office several blocks distant, was insufficient to excuse an omission to give the notice required by the statute. However, the Washington courts, as is shown infra, II. b, have not followed this rule in the case of statutory provisions, and thereby have left the true Washington rule in some doubt, because the later cases, while apparently conflicting with the Born and Ehrhardt Cases (Wash.) supra, do not expressly overrule them. Nor do they expressly distinguish them, although in several instances the fact has been noted that they were decided under charter provisions for notice, whereas the later cases, which reach a contrary conclusion decided under general statutes. in fact some of the judges apparently have attached some significance to the difference in the sources of the requirements as to notice.

were

And

There is considerable authority to the effect that so to construe statutory provisions of the character under consideration as to make them apply to persons who are mentally and physically incapable of giving the required notice within the period specified would render the statutes unconstitutional, as depriving such persons of due process of law. McDonald v. Spring Valley (1918) 285 Ill. 52, 2 A.L.R. 1359, 120 N. E. 476, reversing (1918) 209 Ill. App. 7 (see case as quoted supra); RANDOLPH v. SPRINGFIELD (reported herewith) ante, 612; Williams v. Port Chester (1902) 72 App. Div. 505, 76 N. Y. Supp. 631, reaffirmed on subsequent appeal in (1904) 97 App. Div. 84, 89 N. Y. Supp. 671, which was affirmed without opinion in (1905) 183 N. Y. 550, 76 N. E. 1116; Barry v. Port Jervis (1901) 64 App. Div. 268, 72 N. Y. Supp. 104, 10 Am. Neg. Rep. 539. In Barry v. Port Jervis (N. Y.) supra, where the notice was not given until thirty days after the injury, instead of within forty-eight hours, as required, and the reason given for the delay was that the serious effects of the injury did not develop until several days after the injury, and when the same did develop, plaintiff was in a 31 A.L.R.-40.

critical physical condition, and was unable to draft and serve the notice, and did not then know, nor did he yet know, that the cause of action had accrued to him, the court took the broad ground that the plaintiff had the constitutional right to sue for the injury, and held that the requirement of notice within forty-eight hours was void, as denying him due process of law.

And see Hughes v. Fond du Lac (1889) 73 Wis. 380, 41 N. W. 407, where, in discussing the effect to be given a provision requiring notice within five days, the court, arguendo, said: "I should have great doubt about the validity of the provision requiring the notice to be given within five days of the injury, even if the liability of the city in the case was wholly statutory. The time fixed is unreasonably short, and in many cases could not be complied with. The injured person might be unconscious, or so seriously hurt that he could not state 'the place where, and the time when, such injury was received, and the nature of the same,' within that period; so that the remedy given is coupled with an impossible condition. Such a provision is unreasonable and unjust, and fairly obnoxious to all the objections taken to the enactments in Durkee v. Janesville (1871) 28 Wis. 464, 9 Am. Rep. 500, and Hincks v. Milwaukee (1879) 46 Wis. 559, 32 Am. Rep. 735, 1 N. W. 230. It is an arbitrary and unreasonable provision, which professes to give a remedy for an injury, but annexes to it a condition which in many cases cannot be complied with because the time fixed for serving the notice is so short."

b. Failure not excusable.

There have been a few decisions to the general effect that incompetency or incapacity resulting from an injury does not excuse failure to give the notice to a municipality which the statute makes a prerequisite to the maintenance of an action against it. To the effect that noncompliance with a statute requiring notice within a specified time cannot be excused, see Reid v. Kansas City (1917) 195 Mo. App. 457, 192 S. W. 1047 (apparently

this case is, in effect, overruled by the contrary decisions in the reported case [RANDOLPH V. SPRINGFIELD, ante, 612]; Ransom v. South Bend (1913) 76 Wash. 396, 136 Pac. 365, and Benson v. Seattle (1914) 78 Wash. 541, 139 Pac. 501. In connection with the above-cited Washington cases, see Born v. Spokane (1902) 27 Wash. 719, 68 Pac. 386, and Ehrhardt v. Seattle (1903) 33 Wash. 664, 74 Pac. 827, etc. as set out and discussed supra, II. a, and infra, this subdivision.

Thus, in Ransom v. South Bend (1913) 76 Wash. 396, 136 Pac. 365, proceeding upon the theory that to hold otherwise would constitute judicial legislation, it was held that failure to comply with a mandatory statutory provision requiring notice within thirty days could not be excused by proof of physical and mental incapacity resulting from the injury, even though it extended through the whole period. And again, in Benson v. Seattle (1914) 78 Wash. 541, 139 Pac. 501, the court approved the decision in the Ransom Case to the effect that failure to file the notice within the statutory period cannot be excused by incapacity during such time, and added that in the case at bar the plaintiff was not incapacitated for the full statutory period, but only for the first half thereof. And in Haynes v. Seattle (1914) 83 Wash. 51, 145 Pac. 73, 10 N. C. C. A. 450, the Washington supreme court, without dissent, held that failure to comply strictly with the mandatory provisions of a statute which rendered effective the provisions of a municipal charter, requiring verified notice of injury within thirty days, barred recovery, although the injured person was incapacitated from giving the notice during the whole period; but on rehearing, had after the enactment of a statute containing a saving clause applicable to cases of incapacity, it was held that the statute preserved the plaintiff's rights and avoided the barring effect of the noncompliance, because of incapacity during the charter period. As hereinbefore noted, these cases are in apparent conflict with earlier Washington cases which are set out

supra, II. a, although, as there stated, the Washington courts seem to have attached some significance to the fact that the later cases involved a statutory requirement, whereas the earlier cases dealt only with requirements imposed by city charters. See, for instance, the concurring opinion of Ellis, J., in Haynes v. Seattle (1915) 87 Wash. 375, 151 Pac. 789, 10 N. C. C. A. 461.

And the fact that the injured person was an infant has been held not to excuse failure to give notice of the injury, as required by a statute providing that written notice must be given in "those [actions] founded on injury to the person." Palmer v. Cedar Rapids (1914) 165 Iowa, 595, 146 N. W. 827, Ann. Cas. 1916E, 558. And the same has been held under a statute providing that "all claims" for damages growing out of negligence must be presented to the city within a certain period after such a claim arises. Davidson v. Muskegon (1897) 111 Mich. 454, 69 N. W. 670, 1 Am. Neg. Rep. 89. And it has been held that an Iowa statute providing that actions against cities must be brought within six months unless notice of claims for injury be given within ninety days, in "all cases of personal injuries," applies to both adults and infants, so that a general Statute of Limitations provision which declares that minors shall have one year after the termination of their disability within which to commence an action does not excuse failure to give notice of an injury within ninety days thereof. Morgan v. Des Moines (1894) 8 C. C. A. 569, 19 U. S. App. 593, 60 Fed. 209, determining the effect of Iowa Code, § 2535, on Iowa Act Feb. 17, 1888, chap. 25, § 1.

And that in New York infancy alone does not excuse the giving of notice within the statutory period, at least, where the infant is old enough so that he presumably is able to cause the statutory notice to be given within the required time,-see 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. And see Norton

v. New York (1896) 16 Misc. 303, 38 N. Y. Supp. 90. Also compare Murphy v. Ft. Edward (1915) 213 N. Y. 397, 107 N. E. 716, Ann. Cas. 1916C, 1040, 9 N. C. C. A. 279, as set out supra, II. a.

And in the Washington case of Ransom v. South Bend (1913) 76 Wash. 396, 136 Pac. 365, the court adhered to the rule that incapacity will not excuse noncompliance with a statutory provision for notice, even though the original liability of the municipality is founded upon the common law.

However, in a number of cases which have held that statutory provisions as to notice are mandatory, and that noncompliance cannot be excused, stress has been laid upon the fact that the liability of municipalities is purely statutory, from which it is argued that no one has a right to object to a statutory modification thereof, or imposition of a condition precedent.

Thus, in Nebraska, where the liability of a city for injury rests exclusively upon express or implied statutory provisions, it has been held that incapacity caused by the injury neither extends the time nor excuses failure to give the notice required by a statute making notice a condition precedent to recovery. It was so held in Schmidt v. Fremont (1903) 70 Neb. 577, 97 N. W. 830, which was followed in Ellis v. Kearney (1907) 80 Neb. 51, 113 N. W. 803, in which it was said that unconsciousness was not an excuse; and in McCollum v. South Omaha (1909) 84 Neb. 413, 121 N. W. 438, in which it was declared that the plaintiff was not excused, even though the accident deprived him of consciousness for more than the statutory period. In Hastings v. Foxworthy (1895) 45 Neb. 676, 34 L.R.A. 321, 63 N. W. 955, it was held that the mental and physical liability of one injured on an icy sidewalk, during a portion of the period allowed by statute for the giving of notice of the accident and claim, which notice is a condition precedent to the maintenance of an action, will not extend the time of performance, provided a reasonable time remains within that period after

the removal of the disability. In this case the statutory period was six months, and it appeared that the plaintiff was actually incapacitated only for a period of from eight to sixteen weeks. In connection with these Nebraska cases, it is of interest that Nebraska Comp. Stat. 1922, § 4384, expressly provides that if the person injured be deprived, by reason of the injury, of the physical or mental capacity to give the notice required, the time shall be extended for the period of ten days after the incapacity is removed. See Harris v. Genoa (1923) 195 N. W. 953, as set out

Neb. infra, III. b.

And in Connecticut, where the liability of municipalities for defective highways is purely statutory, it has been held that compliance with the statutory provisions requiring notice of an injury within a specified period, is a prerequisite to a right of action, so that failure cannot be excused. Applying this rule, it was held in Crocker v. Hartford (1895) 66 Conn. 387, 34 Atl. 98, that failure to give notice of injury resulting from a fall upon an icy walk, within the fifteen days as required by statute, could not be excused by proof that the injury was internal and did not manifest itself until more than fifteen days after the fall.

And in Touhey v. Decatur (1911) 175 Ind. 98, 32 L.R.A. (N.S.) 350, 93 N. E. 540, 3 N. C. C. A. 390, it was held that the fact that one injured by a defect in a city street is rendered mentally and physically incompetent by the injury does not excuse the fail ure to give the notice to the city which the statute makes a prerequisite to the maintenance against it of an action for personal injuries, which latter right is purely statutory. The court said: "The liability of cities and towns for injuries resulting from defects in the streets, alleys, highways, and bridges is implied from the provisions of the statutes which impose the duty upon such municipalities to keep the streets, alleys, highways, and bridges in repair, and give them ample power to provide the means necessary to make such repairs. Said liability

rests exclusively upon said statutes. It is competent for the legislature to limit or remove it entirely. The claim being a statutory one, it is clear that § 8962, supra, providing the conditions upon which an action can be maintained, is not in violation of the 14th Amendment to the Constitution of the United States, or of article 1, § 23, of the Constitution of this state. This is true, because a duty imposed by the legislature upon cities or towns, or a liability against them created by the legislature, may be qualified, limited, or removed by that body. No one complaining of the omission to perform such duty can successfully object to the qualifications and limitations imposed by the legislature. Under § 8962, supra, no action can be maintained for an injury 'resulting from any defect in the condition of any street, alley, highway, or bridge,' unless the written notice required thereby is given. The provisions of said section are mandatory, and the giving of said notice is a condition precedent to a right of action."

And in Peoples v. Valparaiso (1912) 178 Ind. 673, 100 N. E. 70, applying the rule that, where the liability of the city in the first instance is statutory, a provision requiring notice of injury is simply a limitation on that liability, so that one seeking the benefit of the statute must show compliance with its provisions, it was held that the fact that an injured person was unable to give the required notice affords no excuse for a failure to comply with the terms of the statute. In this case it was set up that the notice was not given (1) because of the fact that immediately after the accident, and for 120 days thereafter, the injured person was sick and confined to his bed and unable to give the notice, and (2) that he was a minor, ten years of age, and incapable of appointing an agent; but the court ruled that no excuse could be effective to avoid failure to give the notice.

And it has been argued that where actions for personal injury are purely statutory, the statutory creation of a condition precedent, such as a requirement that notice be given, does not de

prive an injured person of due process of law, even though the injury was such as rendered him incompetent to give the required notice during the statutory period. It was so held in the following cases: Touhey v. Decatur (Ind.) (see this case as quoted supra); Peoples v. Valparaiso (Ind.) supra. And see Schmidt v. Fremont (1903) 70 Neb. 577, 97 N. W. 830.

And in Washington, without reference to the origin of the original right of action, it has been held that mandatory provisions as to notice within a specified time do not render the act unconstitutional, even as against a person who was totally incapacitated during the whole period. Haynes v. Seattle (1914) 83 Wash. 51, 145 Pac. 73, 10 N. C. C. A. 450. On rehearing, the judgment in this case was reversed in (1915) 87 Wash. 375, 151 Pac. 789, 10 N. C. C. A. 461, but the reversal was upon the ground that the plaintiff's rights were saved by a statute enacted before the original decision became final. See infra, III. b.

That under the charter of Montreal (63 Vict. chap. 58, art. 536), which requires notice within thirty days, ignorance of the requirement does not excuse the giving of the notice, see Dupuis v. Montreal (1918) Rap. Jud. Quebec 56 C. S. 121.

III. Statutes making provision for delay or failure.

a. In general.

In some of the statutes dealing with the question of notice to municipalities in cases of injury, provision is made for failure to give notice by designating certain grounds which will excuse noncompliance. Under statutes of this character, the question is largely one of fact as to whether or not the plaintiff has brought himself within the saving provision.

b. "Physical or mental incapacity.”

In Massachusetts the statute (Stat. 1877, chap. 234, §§ 3, 4; Pub. Stat. chap. 52, §§ 19, 21; Rev. Laws, chap. 51, §§ 20, 21) requires notice within thirty days, unless from "physical or mental incapacity" it is impossible for the person injured to give such notice,

in which case he may give notice within ten days after such incapacity is removed.

Under such a statute the sufficiency of the excuse is largely one of fact, and where the evidence of incapacity, of which the injured person has the burden of proof, is conflicting, the question is for the jury. Thus, in Welch v. Gardner (1882) 133 Mass. 529, where the plaintiff contended that during the statutory period he was unable to leave his bed, was sick, nervous, dizzy, and delirious, unable to think of anything, or attend to any business, all of which was controverted, it was held that while the evidence was legally sufficient to authorize a finding for the plaintiff, the question was one of fact for the jury.

*

And in Mitchell v. Worcester (1880) 129 Mass. 525, it was held that the plaintiff had not sustained the burden of proof and that failure to give notice was not excused, where he was not so physically or mentally incapacitated as to be unable to give notice himself, or through another. And in May v. Boston (1890) 150 Mass. 517, 23 N. E. 220, it was held that the burden of proof that plaintiff was physically in capacitated from giving the required notice was not sustained by proof that she was so injured by reason of a defective sidewalk that she was confined to her bed; nor that she was mentally incapacitated by evidence that her head troubled her, that at times she was dizzy and her mind visionary, that sometimes she was delirious at night, and appeared worse after opiates were given her under a physician's directions, since such facts are not sufficient to prove that in her ordinary condition she had not sufficient mental capacity to give the notice. Again, in Townsend v. Boston (1919) 232 Mass. 451, 122 N. E. 395, where plaintiff was injured on an icy walk, it was held that she did not sustain the burden of proving an adequate excuse for failure to give the required notice, by evidence that after her accident she was treated at a hospital for five weeks, and could not sit up; that she was suffering a good deal from shock, was kept under opiates a great deal for two weeks in

order to relieve pain, that she did not sleep well, and was "pretty uncomfortable;" that she lived with her brother and sister, whom she, immediately after the occurrence, told about the accident, including its time and place; and that her sister and "plenty of people" came to see her at the hospital.

In Goodwin v. Fall River (1917) 228 Mass. 529, 117 N. E. 796, the court defined the physical or mental incapacity which, under the Massachusetts statute, enlarges the period of limitation within which notice as a condition precedent to a right to maintain an action must be given, as "an inability of the person injured to give the notice himself, or through another, which results from a loss of the faculties of the mind, or from a lack of power to use the mind because of the loss or impairment of the organs of the body," and held that mere physical inability to move or to be moved about is not evidence of mental or physical incapacity; also, that ignorance of the facts upon which may depend the ability of the person injured to give notice is not evidence of mental or physical condition, and that want of means to employ assistance to give the notice, or to find out when the accident happened, is not evidence that the plaintiff was incapable of giving the notice within thirty days because of mental or physical incapacity. And in McNulty v. Cambridge (1881) 130 Mass. 275; where plaintiff fell and broke his leg, it was held that the fact that he was unable to leave his bed during the period within which notice was required, and that he did not know how to write, constituted no evidence of incapacity and was not sufficient to show that it was impossible, within the statute, to give the notice earlier. And in Lyons v. Cambridge (1882) 132 Mass. 534, where plaintiff suffered from a broken limb and was unable to leave her bed during the thirty-day period, but it also appeared that she was assisted home by a daughter, that plaintiff then told her husband, who went to see the place of the accident, and that she was then taken to the