delivered the opinion of the court:
The appellant, Margaret McDonald, by Patrick McDonald, her next friend, brought her suit in trespass on the case against the city of Spring Valley, appellee, in the circuit court of Bureau cоunty, charging appellee with negligence which resulted in the loss of the third finger of her left hand. Appellee filed a general and special demurrer to the declaration, the grounds for the special demurrer being that appellant did not comply with the requirements of the statute relative to the giving of notice to appellee of the injury complained of, and that under the facts alleged in the declaration she was not excused from complying with the statute on account of her minority or her mental or physical disability. The court overruled the demurrer, and appellee having elected to stand by its demurrer a jury was called and damages were assessed in the sum of $1000, upon which verdict the court rendered judgment. On appeal to the Appellate Cоurt for the Second District the judgment of the circuit court was reversed without remanding, and a certificate of importance having*been granted, the cause was brought to this court for further review by appeal.
The declaration alleges that appellee permitted a building to be erected and maintained in one of its streets as a place of amusement, in which appellant, through the negligence of appellee, received the injury complained of on June 24, 1916; that on March 14, 1917, appellant filed in the offices of the city attorney and city clerk оf appellee a statement in writing signéd by her, giving her name, the date and about the hour of the accident, the place and location where the accident occurred and the addrеss of the attending physician; that appellant on June 24, 1916, and on March 14, 1917, was a minor of the age of seven years; that on those dates, on account of her tender years, she did not know and wаs not informed by anyone of the provisions of the statute concerning suits at law for personal injury against cities, villages and towns, and that on account of her tender years and her physical аnd mental incapacity it was impossible for her to give to the city attorney or the city clerk, or to anyone whomsoever, the notice required to be given by said statute, or to know, comрrehend, understand or comply with the terms and requirements of that statute.
The act referred to in the declaration is as follows: “Any person who is about to bring any action or suit at law in any court agаinst any incorporated city, village or town for damages on account of any personal injury shall, within six months from the date of injury, or when the cause of action accrued, either by himself, agent or attorney, file in the office of the city attorney (if there is a city attorney, and also in the office of the city clerk) a statement in writing, signed by such person, his agent or attorney, giving the name of the person to whom such cause of action has accrued, the name and residence of person injured, the date and about the hour of the accident, the place or lоcation where such accident occurred and the name and address of the attending physician (if any).” (Hurd’s Stat. 1917, p. 1663.)
It is the contention of appellant that the admitted facts set up in the deсlaration constitute a good and complete cause of action, and that under the law she was not required to do more than it was admitted she had done in order to entitle her to reсover, for the reason that the laws of this State did not require her, under the admitted facts disclosed by the pleadings, to serve a notice within six months after the injury to entitle her to recover. Appellant insists that under a proper construction of this statute one in her condition is excepted from its operation, and that because of her mental incapacity the statute does not apply to her and she is not required to give the statutory notice within six months after receiving the injury. The allegations of the declaration must be taken as true, and it must be conceded, as is done by сounsel'for appellee, that appellant was mentally incapable of giving the notice required by the statute. It is the contention of appellee that the statute, being general in its terms, cannot be construed to make any exception, and that the legislature has the power, if it sees fit to do so, to make the statute applicable to all persons, without regard to their situation or mental condition.
Statutes general in their terms are frequently construed to contain exceptions, when considered in connection with well known rules of law, without the courts being subjected to the criticism of having entered the legislative field. This is done upon the theory that statutes, though general in their terms, have been enacted with the full recognition of rules of law which havе become well known and well established. From time immemorial the status of' a minor of tender years has been recognized in law to be different from that of one of more mature years. The law rеcognizes that up to the age of seven years a child is incapable of such conduct as will constitute contributory negligence, and our courts have uniformly so stated the law in their instructions tо juries. (Chicago City Railway Co. v. Tuohy,
We have repeatedly held that this act is constitutional. Appellant contends that such a • construction as that contended for by appellee would render it unconstitutional. By submitting the case to the Appellate Court all constitutional questions were waived and appellant cannot now question the validity of the act. However, as the question presented is simply one of construction, it is not improper to say that if the construction insisted upon by appellee were adopted it would undoubtedly render the act unconstitutional, as depriving appellant of due process of law. The act is meant to apply only to those who are mentally and physically capable of comprehending and complying with its terms. We are aware, as appellee has pointed out, that in a number of other jurisdictions a strict construction has been given to similar statutes, and that it has been held in those jurisdictions that it is a matter for the legislature to determine whether there should be any exceptions to such legislation; but in the State of New York, where there is a similar statute, the New York Court of Appeals held that where an infant fivе years of age was injured by the alleged negligence of a village, its right of action was not barred because it did not file the notice required within the time prescribed by the statute, under the rule that the law does not seek to compel one to do that which he cannot possibly perform, and that the failure of a father or mother to file the notice is not chargeable to the infant. (Murphy v. Village of Ft. Fdward,
The declaration disclosеd that appellant was mentally and physically incapable of giving the notice required by the statute, and she therefore did not come within the provisions of this statute as properly construed.
The judgment of the Appellate Court is reversed and the judgment of the circuit court affirmed.
Judgment of Appellate Court reversed.
Judgment of circuit court affirmed.