178, 114 N. E. 70, a variance of eight days | opinion, and that is that the notice of the was held fatal. In City of Ft. Wayne v. Ben- injury given to the city, as required by secder, 57 Ind. App. 689, 105 N. E. 949, a vari- tion 1, p. 545, of the Laws of Missouri of ance of ten days was held to be fatal. In Ra- 1913, is insufficient, in that it does not defider v. City of New York, 97 Misc. Rep. 648, nitely state the time when it occurred. 162 N. Y. Supp. 275, a recovery was denied on account of a variance of ten days.

We cannot conclude this branch of the discussion any more appropriately than by quoting from the able opinion of Judge Hiscock in Weisman v. City of New York, 219 N. Y. loc. cit. 187, 114 N. E. 73, as follows:

"In a large city like New York it is of the utmost importance that its officials should be accurately informed concerning the alleged date and location of an accident. Paraphrasing the language used by Judge Pound in the Casey Case [217 N. Y. 192, 111 N. E. 764], supra, it is essential that they should know not only when an accident happened, but also when it will be claimed that it happened, and if it should be held that, after preparation has been made to meet the claim of an accident on a date in the notice and complaint, a plaintiff may suddenly on the trial transfer his claim to a date eight days later, it is perfectly evident that the requirements of the statute will have been so emasculated that not much virility will be left. If it should be thought that this interpretation of the statute may at times result in unnecessary hardship to a litigant, where an amendment of the notice might be allowed without injury to the municipality, this method of relief rests with the Legislature through amendment of the statute."

A foreword: The majority opinion discusses this question from two different aspects in separate paragraphs, and cites authorities in support of each which widely differ from each other. I will therefore answer each in separate paragraphs.

For convenience, and for the purpose of having the statute before us, I here copy it in full, which is as follows:

"No action shall be maintained against any city of this state which now has or may hereafter attain a population of one hundred thousand inhabitants, on account of any injuries growing out of any defect in the condition of any bridge, boulevard, street, sidewalk, or thoroughfare in said city until notice shall first have been given in writing to the mayor of said city, within ninety days of the occurrence for which such damage is claimed, stating the place where, the time when such injury was received, and the character and circumstances of the injury, and that the person so injured will claim damages therefor from such city."

At this place it should be emphasized that this statute requires the performance of two things especially, among others, first: That the notice must be given to the city within 90 days of the occurrence of the injury; and, second, that the notice must state the time when, and place where, the injury occurred. This should be borne in mind, because much confusion in the minds of courts and counsel has been caused by considering the two requirements as one or interchangeably. The confusion grows out of the fact that the first is a condition precedent which must be strictly performed before the suit can be main-tained. One minute after the statutory time expires is just as fatal to a recovery as one year. The second requirement mentioned relates to the contents of the notice, and not to the time of its service; but in the course of this opinion I will show that in many cases the argument made and the rules governing the time of serving the notice are applied to the sufficiency thereof after it is given. IV. In view of the conclusion heretofore This is noticeably true of the majority opinreached, we do not deem it necessary to con-ion in this case. sider or pass upon any other questions presented in the briefs.

The opinion of Judge Ellison in Anthony v. City of St. Joseph, 152 Mo. App. 180, 133 S. W. 371, was announced on the 2d day of January, 1911. He held that the law in existence at that time was mandatory in its terms, and that a variance of one day between the time mentioned in the notice and the actual date of injury was fatal and precluded a recovery in the case. Judge Ellison cited and followed some of the cases above mentioned. With the above opinion presumably before them, the members of our General Assembly, in 1913, passed the act heretofore set out, without any modification of the law, requiring the notice to state the time of accident. We see no reason for departing from the views expressed by the Kansas City Court of Appeals in the Anthony Case.

The judgment of the trial court was for the right party, and is accordingly affirmed.

BROWN, C., concurs in result.

PER CURIAM. The foregoing opinion of RAILEY, C., is adopted as the opinion of the court en banc. GRAVES, C. J., and FARIS and WILLIAMS, JJ., concur. BLAIR, J., concurs in result. WOODSON, J., dissents in separate opinion, in which BOND and WALKER, JJ., join.

The notice served upon the mayor, in so far as is here material, reads:

"Take notice that on or about the 1st day of September, 1913, about 11 a. m., the undersigned, Mrs. Nettie Hackenyos, while walking along and upon Harney street between Beacon and Davison streets, in the city of St. Louis, at which point there was a deep hole in the street, around which there were high weeds and grass obstructing the same, thus making the hole in said Harney street dangerous; that while walking along said street she fell into said hole, and was severely injured in and upon her body, spraining her hips, and causing her to receive a severe shock," etc.

This notice was served upon the mayor on September 10, 1913. At the trial of the cause WOODSON, J. (dissenting). I. There is the evidence showed that the injury occurbut a single question decided in the majority red September 2, 1913. By this it is conclu

Neither is the case of Brown v. Bard, 64, Haven Railway Company upon certain conMisc. Rep. 249, 118 N. Y. Supp. 371, in point. ditions, and that while claiming title thereto That was a suit in a contract for the publi- under said grant said company conveyed this cation and delivery of certain calenders. The 40 acres and numerous other tracts to divers contract provided that the calenders should persons; that thereafter the title of the railbe shipped "on or about November 1st." way company, and that of those claiming unThey were not shipped until the 8th day of der it, in a proper proceeding, were held to December following, and the evidence show-be void. Said act of the Legislature undered that it took from eight to twenty-two days to deliver the calendars after the date of shipment. Upon that state of facts the Supreme Court of New York on page 256 of 64 Misc. Rep., on page 376 of 118 N. Y. Supp., said "* that time was of the essence of the contract, and that the term 'on or about' November 1st, as used therein, did not mean December 8th or 14th, nor was there such a fulfillment of its terms on the part of the plaintiff as entitled it to" a recovery. While that decision was dealing with the contents of a contract, yet I am unable to see its application to a notice given under the statute in question; but, conceding that it is applicable, still the contract was not null and void because it used the words

"on or about November 1st," but upon the express grounds that those words were not sufficiently comprehensive to include "the 8th day of December following," almost a month and a half after the date called for in the contract. That is quite a different case from the one at bar. Here the notice stated the injury occurred on or about the 1st day of September, 1913," and the proof was that it occur red on the next day, September 2d. Would the ruling of the New York court have been the same had the evidence shown that the shipment had been made on November the

2d instead of December the 8th? prehend not.

I ap

The case of Blackshear Mfg. Co. v. Stone, 8 Ga. App. 661, 70 S. E. 29, is not in point. That was a suit on a promissory note, and the facts and ruling of the Georgia Court of Appeals is well stated in the third paragraph of the syllabus of the opinion, which

reads:

"Where a promissory note is payable on a fixed day, and not 'on or about' a fixed date, and the debtor makes payments before the maturity of the note, he is not entitled, in the absence of an agreement to the contrary, to interest on the payments from the time they are made up to the date of the note."

Nor is the case of Paine v. Commissioner of Lands, 66 Mich. 245, 33 N. W. 491, in point. If I correctly understand that case, it was to compel the commissioner to issue and deliver to plaintiff a patent to a certain 40 acres of land, which with large bodies of other lands had been granted by an act of Congress to the state of Michigan. The suit was based upon an act of the Legislature of Michigan (Act No. 197, Laws 1883, p. 225) providing for the issuance of such patents. It seems that this 40 acres, with other large bodies of land, had been granted by the United States to the Port Haven & Grand

took to provide means by which bona fide settlers and purchasers of those lands might, within six months from its passage, prove their claims thereto, etc. The plaintiff did not comply with the requirements of the act, and for that reason the commissioner rejected her claim to the land and refused to issue the patent. The Supreme Court of Michigan, in passing upon that case, held that Act No. 197, Laws of 1883, supra, "grants privileges and not rights," and for that reason it was lawful for the Legislature to burden the redemption with as many conditions as it deemed proper, and that, the plaintiff having failed to comply with those conditions, she had no standing in court.

The case of Godfrey Lumber Co. v. Kline, 167 Mich. 629, 133 N. W. 528, is not in point. That was a suit to enforce a mechanic's lien, and the notice served upon the owner stated that the last of the materials were furnished "on or about the 3d of March." The statute authorizing the filing of the lien provided that the lienor should keep a just and true account of the materials furnished, and that the notice of the lien should be given within a specified time after the last item of the materials was furnished. It must be borne in mind the court was there dealing with the service of the notice, and not with its contents, except in so far as it fixed the time within which the notice should be given. without exception, hold that when a statute And I might here state that all the courts, requires the giving of a notice of the filing of a mechanic's lien within a specified time, that such a requirement is a condition precedent, and the notice must be given within the time, or a recovery cannot be had; but the sufficiency of the notice after given is another question.

But returning to the case we had under consideration: In that case the court held that mechanics' liens were "in derogation of the common law, and depending for their existence wholly upon the statutes, and, upon the question whether a lien attaches at all, a strict construction is adopted; and then proceeded to hold that the words, "on or about the 3d of March," were indefinite and uncertain, and insufficient to create a lien under the statute. That ruling was correct, because the notice, as a condition precedent, which had to be served within the designated time, and by the use of the words, "on or about the 3d of March," left it uncertain whether or not the service had been made within the proper time; but that ruling had nothing whatever to do with the sufficiency of a notice. Moreover, in the case at bar the

plaintiff's cause of action was not in deroga-, notice insufficient, on page 393 of 48 App. tion of the common law nor founded upon Div., on page 161 of 63 N. Y. Supp., said: the statute; it was founded upon the common law, and the statute simply limited her right to sue upon condition that she give the notice within 90 days after the injury occurred, which she did, and that, too, within 8 days thereafter.

made was wholly foreign to that subject, or probably, more correctly speaking, constituted no reason for holding that the notice was insufficient. Had that argument been made to the Legislature with a view of having the statute amended so as to shorten the time within which to give the notice, it doubtless would have had much weight and probative force; but, for the life of me, I am unable to see any sound reason for saying that it was the intention of the Legislature to compel the plaintiff to state in the notice the exact date or time the injury occurred, and in the same breath and statute give him 90 days, or even one year, as the statutes of some of the states provide, in which to serve that notice upon the city. In other words, what good purpose could be possibly achieved by stating the exact date of the injury in the notice, and then lay it away for 90 days, or a year, as the case may be, before showing or serving it upon any one? And this fact should not be lost sight of, that, according to the majority opinion, the notice in this case would have been invalid, even though the evidence had shown that the injury occurred on September 1, 1913,

instead of the 2d.

The opinion holds that the notice upon its face is so indefinite and uncertain as to render it absolutely void, because of the use of the words "on or about," and not because the evidence showed that there was too great a variance between the time when the notice stated the injury occurred and the date upon which the evidence showed it actually occurred. Such a construction of the statute seems to me to be straining at a gnat and swallowing a camel, and shows the fallacy of the argument advanced in the majority opinion, and by the court in the New York case. The only rational construction that can be placed upon the statute is that the notice must substantially conform to the requirement of the statute, and be filed within the time specified therein. There is no decision to the contrary, except the case just mentioned.

The case of Wolf Co. v. Pennsylvania Railway Co., 29 Pa. Super. Ct. 439, was also a suit to enforce a mechanic's lien. The court in holding the lien void announced the same general rules laid down by the courts in all the mechanic's lien cases heretofore mentioned, all of which relate to the time of filing the lien or the notice required to be given thereof, and not their sufficiency.

elsewhere give full force and effect to the our own state, in regard to correctly giving mandatory provisions of statutes like those of notice as to the true time of injury."

Then follows a long array of authorities cited in support thereof, which I will here briefly review.

In Anthony v. City of St. Joseph, 152 Mo. App. 180, 133 S. W. 371, the court held that where a notice of injury received on a street of the city which is required by statute to be given within 60 days of its occurrence must not be misleading; and where it states that an injury received on August 13th occurred on the 14th day of that month, it is fatally defective, and no action can be maintained. I am unable to see in what possible way a mistake of one day as to the time of the injury could mislead or deceive the city.

In Willis v. St. Joseph, 184 Mo. App. 428, 171 S. W. 27, the notice was held good where the jury found the injury occurred on the 10th of October, 1913, and where substantive evidence tended to show that it was the 11th.

In Reid v. Kansas City, 195 Mo. 457, 192 S. W. 1047, the notice was not given within the 90 days required by the statute. That ruling was correct according to all the authorities cited by counsel on each side of the case.

In Benton v. City of Montgomery (Ala.) 75 South. 473, the statute required the notice to state substantially the day and the time thereof when the injury occurred, etc. The notice stated that the injury occurred on December 18, 1912, and the evidence showed he was injured at 7 p. m. on the 17th, and died on the 18th. The Supreme Court of Alabama held the notice bad. Evidently the court did not give much weight to the words "stating substantially," etc. However, we must not criticise that case too harshly, because the statute not only required the notice to state the date of the injury, but the time thereof also, which probably would exclude the next day, even under a liberal construction thereof.

In Barron v. White, 29 R. I. 482, 72 Atl. 644, the court held that a notice stating that the injury occurred on the 15th of February, 1915, was bad when the proof showed that it was on the 14th.

In Zycinski v. Chicago, 163 Ill. App. 413, the statute required the notice to state the day and the hour thereof when the injury occurred and to serve the notice within six months. The notice said nothing of the hour of the day, and the notice was not served for two years after the injury occurred. The court held that notice was fatally defective for not stating the hour of the day on which the accident happened; also because not served in time. I have no complaint to make against that decision, but will add that the clause of the statute requiring the hour of the day to be stated and proven is pretThe second view of the Commissioner is ty rigorous. Probably in the majority of expressed in this language:

II. This brings us to the consideration of the second view taken of this case by our learned Commissioner; and, since the authorities cited in support thereof differ so widely from those cited in support of the first aspect of the case, I feel that they can be better answered in this, a separate paragraph.

cases that could not be done..

203 S.W.-63