In Harder v. City of Minneapolis, 40 Minn. 446, 42 N. W. 350, a similar statute (save it did not contain the word "substantially") was under consideration. The notice, in describing the place where the injury occurred, erroneously stated that it occurred one block removed from the place where the injury actually occurred. In construing that statute the court (40 Minn. page 447, 42 N. W. 350), said:

"In Nichols v. City of Minneapolis, 30 Minn. 545, 16 N. W. 410, the manifest object of the provision of the charter now being considered was declared to be that the city might have timely notice of every claim made upon it, and thus be enabled to ascertain the facts, to establish them while witnesses are obtainable, and the occurrence and the condition of the place at the time, fresh in their recollection. It is obvious, then, that a notice which informs the proper authorities of the place with a reasonable certainty, and so that it can be found with reasonable diligence, is sufficient. a notice of this character ought not to be construed with technical strictness. It is enough if it gives to the officer upon whom it must be served information with substantial certainty as to the place of injury, so as to be of aid to him in investigating the question of the liability of the municipality. Spellman v. Chicopee, 131 Mass. 443. And when it conveys the necessary information to the proper person it is good, even though there are some inaccuracies in it. City of La Crosse v. Town of Melrose, 22 Wis. 459."

350. The notice is not a pleading, and the statutory requirements as to its validity should it difficult for the average citizen to draw a not receive so strict a construction as to make good notice. Tattan v. City, 128 Mich. 650, 651, 87 N. W. 894; Oesterreich v. City, 137 Mich. 415, 416, 100 N. W. 593; Buchmeier v. City, 138 Iowa, 623, 116 N. W. 695; Connor v. Salt Lake City, 28 Utah, 259, 78 Pac. 479."

In Tattan v. City of Detroit, 128 Mich. 650, 651, 87 N. W. 894, 895, the court, in construing a similar statute, said:

"There can be no doubt that this notice sufficiently described the time, place, and cause of the injury, but the learned circuit judge was of the opinion that the nature of the injury was not sufficiently specified. This statute is one in derogation of common right. It should not be construed with liberality against the right of an injured party to maintain an action against the city, but, on the other hand, should receive a reasonably strict construction. By other provisions of the charter it is incumbent up

an injured party to present his claim to the common council, and the case is then open to full investigation. This, as well as the notice to the head of the law department, must precede the institution of suit."

In Oesterreich v. City of Detroit, 137 Mich. 415, 100 N. W. 593, the court said:

"Notice to municipal officers of a claim for personal injuries is sufficient if it describes the time, place, *** and nature of the injury in general terms."

And in Buchmeier v. Davenport, 138 Iowa, 623, 116 N. W. 695, the court held, as stated in the syllabus, that:

"The statute requiring notice to be given a city of the place and defect in a street or walk which it is claimed caused or contributed to the injury will be liberally construed, so that parties having a meritorious claim will not be cut off by mere technicalities as to the form of the notice. Under this rule a notice, though failing to designate on which of four possible where it was not shown that there was any walk crosswalks at a street intersection the injury might have occurred, is not fatally defective other than the one on which the injury occur

In Kandelin v. City of Ely, 110 Minn. 55, 124 N. W. 449, the statute provided that every person who claims damages from any city, village, or borough, for injuries on account of a defective street, shall give notice within 30 days thereafter, stating the time, place, and circumstances thereof. In construing that statute the court on page 58, of 110 Minn., on page 450 of 124 N. W., said: of this kind is to furnish the municipal offi"The object of the statute in requiring notices cers information of the time and place of an accident and the nature of the injuries received, to the end that due investigation may be made to determine the truth and merits of the claims As previously stated, I am of the opinmade. Any notice, therefore, which conveys formation sufficient to enable the municipal offi-ion that the great weight of authority is in cers to determine these facts, answers every purpose of the statute. Nicol v. City of St. Paul, 80 Minn. 415, 83 N. W. 375; Terryll_v. City of Faribault, 84 Minn. 341, 87 N. W. 917."

In Larkin v. City of Minneapolis, 112

Minn. 311, 127 N. W. 1129, the statute merely required the notice to state "the time, place and circumstances of the injury com

plained of."

In construing that statute, the court on page 313 of 112 Minn., on page 1130 of 127 N. W., said:

"The construction which this court has in many instances placed upon this statute is familiar and obviously reasonable. The essential criterion is whether the notice gives the city officials such information that due investigation may be made to determine the truth and merits of the claims made. Nicol v. City of St. Paul, 80 Minn. 415, 83 N. W. 375; Kandelin v. City of Ely, 110 Minn. 55, 124 N. W. 449. 'A notice of this character ought not to be construed with technical strictness.' Harder v. City of Minneapolis, 40 Minn. 446, 42 N. W.

red."

favor of a liberal construction of the statute, to say nothing of the overwhelming reasons therefor.

IV. There is another reason why this statute should receive a liberal construction, which is fully supported by the authorities, and that is the plaintiff's cause of action is bottomed upon the common law, and not

upon the statute mentioned.

The statute

in question does not purport to create a cause of action of any kind, but the design of the Legislature was to place a condition precedent upon his right to a recovery in a common-law cause of action, and that condition is that the plaintiff give to the city "written notice of the time when, the place where, and the character and circumstances of the injury," within 90 days from the date the injury occurred.

Clearly it was not the design of the Legislature to defeat, by a mere technicality, a righteous cause of action to recover dam.

even if done, it would have been so recent thereafter that those making the investigation would have discovered the changes wrought by the hand of man or by natural causes.

ages for an injury caused by the negligence | cal facts could have been blotted out, and, of the city, and not that of the injured party; but the obvious intention was to place the salient facts of the case in the hands of the city officers, and thereby enable them, before the physical conditions of the street have changed, to ascertain whether the claim was true and just, or fictitious and fraudulent. Otherwise the shield placed in the hands of the city by the Legislature would be converted into a two-edged sword, to be wielded by a mighty gladiator against unsuspecting and wounded foe, and thereby take advantage of its own wrong.

an

But it is argued that the notice given in the case at bar did not correctly state the time when the injury occurred, and therefore is not within the letter of the saving clause of the statute. It is true the notice was not given according to the letter of the statute; but, when we consider the purpose the statute was designed to accomplish, can it be seriously contended that it does not fall squarely within the spirit thereof? I think not. And as has been frequently said, by this and other courts, the spirit of a statute is the life of it, and is just as much a part thereof as if it had been written therein.

This statute is not like one which creates a "new" cause of action, or amends an "old," if I may so use the term, whether of statutory or common-law origin, by adding thereto a condition precedent, not merely to a right to a recovery, but as a substantial element of the case, just as much so as is negligence a necessary ingredient in a cause of action created by our damage act, and that element or ingredient may consist of a condition precedent, or any other fact or thing the Legislature may deem proper to inject into the cause of action.

The

In this case, as was said by this court in the Reno Case, supra, "It is not claimed that the notice was intended to deceive,' and I will add to mislead, the officers of the city. But independent of that, in my opinion, a variance of one day between the date of the injury and that stated in the notice could not ordinarily mislead, deceive, or damage the city. The physical defects which ordinarily cause the injury would still exist, and be just as apparent, to the officer making the inspection, under a notice stating that it occurred on the 1st of the month as if it had stated that it occurred on the 2d. In either case the city would be given full opportunity to make the investigation designed by the Legislature. This is made clear by the fact that the statute under consideration does not require that the notice shall be given on the day the injury occurred, but that it shall be No; this is an old action, complete withgiven within 90 days thereafter, stating the in itself, unaided or burdened with the adtime when the injury occurred. To illusTo illus- dition of statutory elements; the statute trate my idea, which I believe was the in- simply denies a recovery in this class of tention of the Legislature: Suppose the cases without the condition precedent has plaintiff should have waited until the ex- been performed within the designated time. piration of 89 days after the injury occur- I do not wish to be misunderstood. red, which she would have had a perfect condition precedent controls in all cases to right to do under the plain letter of the which it is applicable, whether old or new, statute, and had then given the notice, cor- of common-law or statutory origin; the rectly stating the time the injury occurred, distinction being that in the class of statuwhich, as stated, was September 2d, could tory actions mentioned the condition constiit with any degree of plausibility, reason, tutes an element in the case, while in this or justice be contended that the city would class it only goes to the remedy. A much thereby have been placed in a more advanta- more liberal construction is given to the geous position than it was placed by hav- notice when applied to the latter classes of Ing the notice served upon it on September. cases than when applied to the former. I 10th, the date it was served, stating that am not now speaking as to the service of the injury occurred on the 1st, the day be- the notice in either class of the cases; the fore the injury occurred? In my opinion In my opinion service must be made within the designated that question must be answered in the nega- time in both classes, and no excuse for nontive, and the converse thereof affirmed. In In compliance will be accepted; but I am the supposed case the city would have re- speaking of the contents of the notice, and ceived no notice of the claim whatever until whether or not the language used therein practically three months after the injury complies with the requirements of the statoccurred, during which time many physical ute. ute. In the statutory class, where the condichanges might have transpired, either of tion becomes an element in the case, its which would have greatly hampered the performance must be pleaded as an element city in the investigation of the facts of thereof with the same degree of certainty the case. But not so in the case at bar; that any other fact of the case must be the notice was given within eight days of pleaded. So if the language of the notice the time when the accident happened, leav- is as definite and certain as the rules of

tion of the statute which gives the right of ac- case cannot be truthfully stated in the pleadtion, then the petition must allege the perform-ings or proved by the evidence. ance of those conditions or requirements, otherwise it will state no cause of action. McIntosh v. Railroad, 103 Mo. 131 [15 S. W. 80]. "In the case above cited, Barclay, J., in discussing the question of pleading a cause of action given by a similar statute, used the following language: 'It was expressly held in Barker v. Railroad (1886) 91 Mo. 86 [14 S. W. 280], that any person claiming statutory damages for the death of another, under section 2121, Revised Statutes 1879, must, both by pleading and proofs, bring himself within its terms. Here the action was brought within the time (six months) during which the widow of deceased (had he left one) would have had the exclusive right to sue. Yet the petition does

not show that he was unmarried when he died. The right of the parents to maintain the action depends in part on the facts that he left neither widow nor minor children surviving him, and those facts should be alleged and proved if

denied.'

"This court, in the case of Reno v. St. Joseph, 169 Mo. 642, 70 S. W. 123, recognized the necessity of pleading the notice required by section 5724, Revised Statutes 1899, which only requires the notice to be given before an action can be maintained, and does not withhold the right of action itself until the notice is given, as in the case under the Kansas statute. If it is necessary to plead the statute in the former case, then a fortiori should it be pleaded in the latter. And the same view of the matter was taken by the Kansas City Court of Appeals in the case of Burnette v. St. Joseph, 112 Mo. App. loc. cit. 669 [87 S. W. 589]. To the same effect is Baird v. Railroad, 146 Mo. loc. cit. 279 [48 S. W. 78]."

From that opinion it is seen that the Kansas statute and all others like it must be

strictly construed, because the performance of the condition becomes a part of or an element in the case, and, if not performed, the

So, under this view of the case, we must return to the statute under consideration, and glean therefrom the meaning of the Legislature as expressed therein; but in so doing we have the right to place ourselves in the place of the Legislature, and view the law as it existed prior to this enactment, the imperfections of the law as it then existed, and the evils the amendment was designed to remedy. This we have done in a former part of this opinion, which, to my mind, clearly shows that a substantial compliance with the statute was all that the Legislature intended.

I do not pretend to say that a case might not arise where a mistake of one day is made or where a variance of a few hours occurs between the date of the injury and that stated in the notice might not be fatal to a recovery; but what I do mean to say is that, in my opinion, this is not that case. case the plaintiff substantially complied with the statute by stating in the notice that the injury complained of occurred "on or about September 1st, 1913," while in fact it happened on the 2d of that month; that allegation in a petition would have been sufficient, even though the statute had required it to be pleaded.

For the reasons stated I dissent from the majority opinion, and believe the judgment should be reversed, and the cause remanded

for a new trial.

BOND and WALKER, JJ., join in these views.

LANDAU v. NEW YORK LIFE INS. CO. tiff brings this appeal.
et al. (No. 15164.)
(St. Louis Court of Appeals. Missouri.

The defendants filed separate demurrers; The wording of the statute is plain that it each defendant predicating its separate de- is intended not to prohibit the writing of murrer on the ground that the petition fail- life insurance, but that it prohibits the promed to state facts sufficient to constitute a ising and giving of rebates on premiums cause of action. These demurrers were sus- We concede at the outset that any contract tained by the court. The plaintiff stood on entered into or note given for a rebate would his petition and refused to plead further, and be absolutely void because the statute prohibfinal judgment was entered on the demurrers its the promising or giving of any rebate.

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