and Wall v. Casualty Company, 111 Mo. App. 504, 86 S. W. 491. It has been followed in Foglesong v. Modern Brotherhood of America, 121 Mo. App. 548, 97 S. W. 240, and Ramsey v. Insurance Company, 160 Mo. App. 236, 142 S. W. 763.

Perhaps the leading American case on this question, outside this state, is Young v. Travelers' Insurance Company, 80 Me. 244, 13 Atl. 896, with which this defendant had every opportunity to become familiar. It construed the same words to which our attention is now directed, including the reference to the "occupation" of the assured. The court held that while in cases of doubt the contract should be liberally construed in favor of the assured, yet at the same time legal effect should be given to all the language used for the purpose of guarding the company against fraud and imposture. We understand that case to hold that, in a suit to recover for disability under the clause providing for payment in cases where the insured had sustained bodily injuries which should, "independently of all other causes, immediately and wholly disable and prevent him from the prosecution of any and every kind of business pertaining to the occupation under which he is insured," it was only necessary that he should be unable to perform all duties indispensable to the prosecution of his occupation, and did not apply to the inability to perform these simple and subsidiary duties common to all. Expressing the same proposition in other and perhaps simpler words, when one is disabled from performing those substantial acts which characterize his occupation, such common and subsidiary acts ceased to pertain to it.

The Missouri doctrine seems to have met with general approval in the courts of other states as well as in the text-books. Bacon on Life and Accident Insurance (1917) §§ 541, 554, 555; Fuller on Accident, Employé's Accident and Liability Insurance (1913) p. 291 et seq.; Hohn v. Casualty Company, 115 Mich. 79, 72 N. W. 1105; Turner v. Casualty Company, 112 Mich. 425, 70 N. W. 898, 38 L. R. A. 529, 67 Am. St. Rep. 428; Lobdill v. Aid Association, 69 Minn. 14, 71 N. W. 696, 38 L. R. A. 537, 65 Am. St. Rep. 542; Wolcott v. Life and Accident Association, 55 Hun, 98, 8 N. Y. Supp. 263.

While the authorities are numerous and not altogether in accord, they are overwhelmingly in favor of the doctrine as we have stated it. It is not only reasonable, but, in our opinion, accords with a strict construction of the contract before us from a verbal standpoint most favorable to the defendant.

[4] III. The word "substantial" runs like a thread through the authorities we have cited. It is used in the first instruction given for the plaintiff in this case, and its use is

and substantial error in the trial. The instruction is as follows:

"The court instructs the jury that, if they believe from the evidence that Frank L. Bellows received injuries, and that such injuries were accidental, and that thereafter, he, at various intervals, went to his office for the purpose of transacting business, and though they may further believe from the evidence that he attempted to transact some business in his office, and did attend to some matters in his office, but, if they further believe from the evidence that the matters so attended to by the said Bellows were nominal or trivial in character, and if they further believe from the evidence that as a direct and proximate result of said injuries he was substantially disabled from attending to the duties of his occupation, and that within 200 weeks after the date of said injuries, and as a direct and proximate result thereof, he died, then said plaintiff is entitled to recover."

"Substance," as its etymology indicates, is that which stands under and supports all phenomena whether material or mental. It is the essence of the thing itself, and is that element of which the law takes notice in administering concrete justice. A proposition is substantially true when it is essentially true, and it is essentially true when it states the substance of the thing to which it refers. We know of no word that can better express the real and practical nature and effect of an act than the word "substantially." It indicates all that is substantial in the result. We think it was well chosen to express the meaning which the law ascribes to the words which immediately follow it in the instruction, as they are used in the policy.

IV. The plaintiff in his petition sets forth the provision of the policy under which she asserted her right to recover as follows:

"The said defendant insured the said Frank L. Bellows, among other things, against death resulting from accident, and by the terms of said contract, the policy of insurance, agreed, among other things, that if the said Frank L. Bellows should lose his life as a result of accident, as aforesaid, within 200 weeks from the date of such accident, the said defendant company would pay to the beneficiary in said policy, the wife of said Frank L. Bellows and the said plaintiff herein, the principal sum called for by said policy, to wit, $10,000."

The defendant in its answer pleaded the entire provision on that subject as it is copied in the statement preceding this opinion, including the words following:

"If such injuries shall, independently and exclusively of all other causes, immediately, wholly, and continuously disable and prevent the insured from performing any and every kind of duty pertaining to his occupation, and during the period of such continuous disability and within 200 weeks from the date of accident, shall result in any one of the disabilities enumerated below, the company will pay the sum specified opposite such disability.'

It is also pleaded that the death of the assured did not come within the terms of the policy because the injury, although it occurred more than 90 days and less than 200 weeks before the death, did not immediately, wholly, and continuously disable and pre

"Charles Fensky, Notary Public." And on the back thereof:

"St. Louis, Mo., September 10, 1913. "Service of copy of the within notice accepted and acknowledged this 10th day of September, 1913. Henry W. Kiel, Mayor,

"By T. H. Rogers, Secretary."

I. Was the trial court justified in nonsuiting plaintiff upon the ground that the injury occurred on September 2, 1913, when the foregoing notice avers that the injury occurred "on or about" the 1st day of September, 1913? The right of the General Assembly to pass the act of 1913, heretofore set out, is not questioned by appellant. Section 8863, R. S. 1909, which required the notice to be given by the injured party within 60 days of the date of injury, is, in other respects, substantially the same as the act of 1913, supra, except as to verification. From the extensive legislation adopted by various states of our Union in respect to this subject it is manifest that the different lawmaking powers realized that large cities, and especially those whose boundaries extended over sparsely settled territory, were often liable to be imposed upon, by the assertion of fictitious and fraudulent claims, presented for the first time after a long delay, at a time when the environments surrounding the place of injury have changed, and when the witnesses to the transaction have disappeared, so their testimony could not be obtained. The lawmakers realized that it imposed no hardship upon the injured person to require him or her to serve upon the mayor of the city, within 60 or 90 days of the date of the injury, as the case may be, a notice in writing, stating the place where, the time when, such injury was received, the character and circumstances of the injury, and a statement that the person so injured will claim damages from the city. With the information furnished the city, contemplated in, the above notice, and especially with the correct date given therein, the municipality will be afforded an opportunity to check up and verify the movements of the injured party on said day, and to prove, if it can, that he or she was not in that part of the city and sustained no injury on the date mentioned. In order to make this notice effective and of practical value to the city, the language used in section 8863, supra, as well as in the act of 1913, heretofore set out, should be held to be mandatory, and especially as to the true time of the injury.

plicable to any other day, up to the 10th of said month, or even later. Kerr v. Blair, 47 Tex. Civ. App. 406, 105 S. W. 548-551; Blair v. Riddle, 3 Ala. App. 292, 57 South. 382; Morgan v. State, 51 Fla. 76, 40 South. 828-829, 7 Ann. Cas. 773; Hope v. Scranton & Lehigh Coal Co., 120 App. Div. 595, 105 N. Y. Supp. 372-378; Brown & Bigelow v. Bard, 64 Misc. Rep. 249, 118 N. Y. Supp. loc. cit. 375; Blackshear Mfg. Co. v. Stone, 8 Ga. App. 661, 70 S. E. 29-30; Paine v. Com. of State Land Office, 66 Mich. 245, 33 N. W. 491; Godfrey Lumber Co. v. Kline, 167 Mich. 629, 133 N. W. 528-529; Santa Monica Lumber & Mill Co. v. Hege (Cal.) 48 Pac. 69-71; Cohn v. Wright, 89 Cal. 86, 26 Pac. 643; Lee v. Village of Greenwich, 48 App. Div. 391-394, 63 N. Y. Supp. 160-161; Wolf Co. v. Penna. R. R., 29 Pa. Super. Ct. 439; 6 Words and Phrases, pp. 4966–7.

It would serve no good purpose to quote from the foregoing authorities, as they all, with one accord, construe the words "on or about," in cases of this character, as conveying an indefinite and uncertain meaning. On page 6 of appellant's brief it is said: "While the act is mandatory, it is to be construed liberally as to the contents of the notice."

This may be true, in some instances, in passing upon matters contained in the notice, aside from the date of injury mentioned therein, yet, unless the act is construed as mandatory, in respect to time of injury called for in said notice, it would leave the city to grope in the dark, and without information as to the exact date which the injured party intended to rely on at the trial. Even if the notice had read that plaintiff was injured on September 1, 1913, she should not be permitted at the trial to recover when she was injured on the 2d, or some other day of said month. If this plain provision in regard to the time contained in the notice can be evaded by showing a different date in regard to the accident, in many cases it would deprive the city of the very means contemplated by the Legislature of defeating fictitious and fraudulent demands.

77 Hun, 440, 29 N. Y. Supp. 105, the date of injury was August 4, while the notice gave the date as August 5, 1891. It was held that the notice was sufficient. This case, in legal effect, has been practically overruled in Rauber v. Village of Wellsville, 83 App. Div. 581, 82 N. Y. Supp. 9, and in Weisman v. City of New York, 219 N. Y. 178, 114 N. E. 70. In Murphy v. Seneca Falls, 57 App. Div. 438, 67 N. Y. Supp. 1013, the accident occurred on April 10, 1897, while the notice said it occurred on or about April 10, 1897. This was held to be a substantial compliance with the law. In Connor v. Salt Lake City, 28 Utah, 248, 78 Pac. 479, the notice alleged that the injury was "sustained on or about January 15, 1902," while the evidence showed it took place on the night of that day. It was held that the notice was sufficiently definite as to time. Neither the Murphy Case nor that of Connor v. Salt Lake City, supra, sustain the plaintiff's contention. If they had said "on or before" some day which was not correct, they would have been out of line with the array of authorities heretofore cited. They, however, made no such announcement.

In

Marcotte v. Lewiston, 94 Me. 233, 47 Atl. 137, the statute did not require the time to be given. Our law provides that:

"No action shall be maintained against any city of this state *** until notice shall first have been given in writing to the mayor of said city, within ninety days of the occur**stating * the time when such injury was received. ***” (Acts 1913, p. 545.) (Italics ours.)

rence,

The case of Murphy v. City of St. Paul, 130 Minn. 410, 153 N. W. 619, decided by the Supreme Court of Minnesota, holds that where the accident occurred on the 24th day of December, 1913, about 9 o'clock in the evening, that the notice describing the time of accident as December 23d, about 9 o'clock in the evening, was sufficient. This is the only case cited by appellant which is directly in point. It is in conflict with the well-considered cases hereafter cited, and the argument indulged by the court in reaching its conclusion is far from being persuasive.

If an accident occurs on the 2d day of September, and the notice describes it as having occurred on September 1st, it imparts no more information on the subject than if the notice had described it as taking place on September 10th. In either case, the defendant would only be expected to get ready for trial on the theory that the mandatory provisions of our law in regard to time of accident had been complied with by the party injured.

III. The following decisions from Missouri and elsewhere give full force and effect to the mandatory provisions of statutes like those of our own state, in regard to correctly giving notice as to the true time of injury: Anthony v. City of St. Joseph, 152 Mo. App. 180, 133 S. W. 371; Willis v. St. Joseph, 184 Mo. App. 428, 171 S. W. 27; Reid v. Kansas City,

City of Montgomery (Ala.) 75 South. loc. cit. 476; Taylor v. Peck, 29 R. I. 481-482, 72 Atl. 645; Zycinski v. City of Chicago, 163 Ill. App. 413; Swenson v. City of Aurora, 196 Ill. App. 83; White v. Stowe, 54 Vt. loc. cit. 511; Gardner v. City of New London, 63 Conn. 267, 28 Atl. 42; McHenry v. Kansas City, 101 Kan. 180, 165 Pac. 664; Weisman v. City of New York, 219 N. Y. 178, 114 N. E. 70; Rader v. City of New York, 97 Misc. Rep. 648, 162 N. Y. Supp. 275; City of Ft. Wayne v. Bender, 57 Ind. App. 689, 105 N. E. 919; Ouimette v. City of Chicago, 242 Ill. 501, 90 N. E. 300; Touhey v. City of Decatur, 175 Ind. 98, 93 N. E. 540, 32 L. R. A. (N. S.) 350; Lee v. Village of Greenwich, 48 App. Div. 391, 63 N. Y. Supp. 160.

In Benton v. City of Montgomery, 75 South. loc. cit. 476, the notice stated that Benton was injured on December 18, 1912, and the proof showed he was injured December 17, 1912. In a well-considered opinion the court held there was a fatal variance, and denied a recovery. In Taylor v. Peck, 29 R. I. 481482, 72 Atl. 645, the accident occurred February 14, 1905, while the notice gave it as having occurred on February 15, 1905. The variance was held to be fatal. In Zycinski v. day and hour were required to be named, the City of Chicago, 163 Ill. App. 413, where the notice was held invalid which failed to name the hour. In Swenson v. City of Aurora, 196 Ill. App. loc. cit. 90-93, there was a variance

of three hours between the time of accident and that mentioned in the notice. The statute required that the date and about the hour should be mentioned in the notice. A recovery was denied under the above circumstances. In White v. Stowe, 54 Vt. loc. cit. 511, the notice stated that plaintiff was injured "July 22d." It contained the following caption: "Stowe, Aug. 21, 1874." Notwithstanding the above, the court, in construing a statute similar to our own, held that the notice was invalid, because it did not state the year, and denied a recovery by reason thereof. In Gardner v. City of New London, 63 Conn. 267, 28 Atl. 42, the accident occurred May 2, 1892. The notice named the date as May 5, 1892.

Under a statute similar to our own, the notice was held to be invalid on account of above variance. In Touhey v. City of Decatur, 175 Ind. 98, 93 N. E. 540, 32 L. R. A. (N. S.) 350, no notice was given, and plaintiff sought to avoid the mandatory provisions of the statute in regard to notice by showing that he was incapacitated during the 60 days within which the notice was required to be given. A recovery was denied for want of proper notice. In Reid v. Kansas City, 195 Mo. App. 457, 192 S. W. 1047, where no notice was given, it was held by Judge Trimble that there could be no recovery, regardless of the acts of the city authorities in investigating the facts. In McHenry v. Kansas City, 101 Kan. 180, 165 Pac. 664, it was held that a variance of seven days was fatal.