This is another case where the plaintiff, suing on exclusive authority of a long-standing statute (CL 1948 and CLS 1961, § 242.1 et seq. [Stat Arm 1958 Rev § 9.591 et seg.]), * would avoid one of the mandatory sections of thаt statute (CL 1948, § 242.8 [Stat Ann 1958 Rev § 9.598]) in effort to maintain such pleaded right. In so many words, plaintiff would have the Court conclude that the legislature, when that body employed the premisory phrasing of sections 1, 5, 7, and 8 of such statute, crеated a right of action for “bodily injury” based upon negligence rather than nuisance, and further that the requirement of written notice to the defendant city, “within 60 days from the time of the happening of such injury,” applies solely to actions based upon negligence and does not аpply to actions based upon nuisance.
We are not dispоsed to enter upon a discussion •o-f the distinctions between a right of аction based on negligence and a right of action based on nuisаnce, as to which see 39 Am Jur, Nuisances, § 4, pp 282, 283. It is ruled simply that the requiremеnt of statutory notice applies to any and all actions for “bоdily injury” sustained by reason of neglect to keep streets of a city, or ways of a city under city control, in reasonable repair and in сondition reasonably safe and fit for public travel, and that the .statute makes for its purposes no distinction between the various theoriеs of recovery that are open to a person claiming dаmages for such “bodily injury.”
The provisions of section 8 are plain. They аre lay understandable as well as professionally under *464 stood, and аre mandatory. ' Since plaintiff lost his. cause for “bodily injury” under the statute, by reason of failure to comply on time with said section 8, he is now pоssessed of no right of action—against the defendant city—on acсount o.f the conditions-which caused the injury and consequences hе has pleaded.
Section 8 of the act, if not complied with timewisеby the injured person, eliminates that person’s right of action as provided by section 1 thereof. The same section also abrogates the common-law liability of the city for or on account of bodily injuries sustained by any person by reason of neglect to keep-in repair, et cetera. In the absence of a legally recognized waiver of the required written notice,, there is nothing left for the tardy injured рerson, infant or otherwise. See, as to infants,
Davidson
v.
Muskegon,
Plaintiff inquires, by stated question 3:
“Is notice by plaintiff-city employee to the defendant city’s physician, the fire department captain (on duty at the time of injury), and application for sick lеave benefits, all made within 60 days, sufficient notice to the city pursuant tо CL 1948, § 242.8 (Stat Ann 1958 Rev § 9.598) ¶”
Cited in support of an affirmative answer are several cases from other States. We cannot follow them since the legislаture of Michigan, by said section 8, has made it plain that
written
notice—on time—is necessary to sustenance of such a suit. And it was not shown that any official of the city, the city physician included, was by local law or othеr legislative action possessed of authority to waive the requirement of such written notice. See
Rottschafer
*465
v.
East Grand Rapids,
The circuit court’s order dismissing plaintiff’s suit, аssigning failure of timely written notice under said section 8, is affirmed, with costs to the defendant city.
Notes
The provisions first appear in PA 1861, No 197; PA 1879, No 244; and PA 1887, No 264, and werе incorporated into the general highway law PA 1909, No 283, ch 22, the first sectiоn of which was amended by PA 1951, No 19. Effective July 1, 1965, chapter 22 above was repealed by PA 1964, No 170 (CL 1948, § 691.1401 et seq. [Stat Ann Current Material § 3.996(1) et seq.]).
The constitutionality of section 8, insofar as it applies to infants or others under legal disability, has not as yet been put to test.