(dissenting).
I am unable to agree with the ruling announced in the prevailing opinion, although there are several cases in Utah to support the opinion as written, the most important of which is Hurley v. Bingham City.1 In my opinion these cases should be overruled. None of them considered constitutional questions, and they simply interpreted the language of the statute as written. The question of whether due process was afforded a minor was not even raised; nor was the matter of equal protection of the law considered.
The sections of the law 2 relied upon by Midvale City had their genesis in 1898 and now in substance provide that no action can be brought against a city for injuries received by reason of a defective condition of a street, etc., unless a verified written statement is filed with the city within 30 days following the occurrence of the injury-
At the time of the Hurley decision this court was of the opinion that the statute was valid, and no one now questions its validity except in its application to certain factual situations like the one in question where the plaintiff is a two-year-old infant.
Prior to 1965 the State and its municipalities were immune from suit except as the statute may have permitted it. Now governmental immunity has been waived3 in many situations. However, in actions against cities arising out of defects in streets the old requirement of notice is retained. The cause of action exists by virtue of the common law. If the notice requirement is a limitation on the bringing of an action, then it denies to an infant that which is given to an adult and thus denies the equal protection of the law in violation, *33of Article I, Sections 7, 11, and 24, of the Utah Constitution, which read as follows:
Sec. 7. No person shall he deprived of life, liberty or property, without due process of law.
Sec. 11. All courts shall be open, and every person, for an injury done to him in his person, . . . shall have remedy by due course of law, which shall be administered without denial . .
Sec. 24. All laws of a general nature shall have uniform operation.
If an infant is incapable of giving the required notice, is it not denied the benefits under the provisions of the Constitition as above set out ?
A statute which by its terms prevents an infant from suing for injuries received unless it gives notice at a time when it is impossible for the infant to do so does not seem to me to afford due process of law to the infant.
The law does not require the doing of an impossible thing, and yet this notice statute requires a two-year-old infant to give verified, written notice within 30 days of her injury or to have it given by some person authorized to sign the same.
It is difficult for me to see how anyone other than a guardian can be authorized to give the notice. There is talk about parents being natural guardians of an infant, yet they have no authority to bring an action on the child’s behalf. Why then should they be able to prevent the child from bringing one simply because of stupidity, inadvertence, or ignorance on their part? They are not the ones who lost the sight of an eye. Would the matter be any different for an orphan than for a child of uninformed parents? I fail to see how a two-year-old child can authorize anyone to make the report on its behalf.
In arriving at its decision in the Hurley case, this court passed rather lightly over the cases which in my opinion it should have followed. One of those cases is City of Tulsa v. Wells.4 At page 596 of 63 Utah, at page 215 of 228 P. this court said: “We are unable to say upon what rule or theory the Oklahoma case was decided.”
To me that case is clear in its holding. The city charter required 30 days’ notice to the city as a condition precedent to suit. The injured plaintiff, a minor of 13 years, was rendered unconscious for more than 30 days following his injury. There the trial court instructed the jury that the notice requirement was valid unless the plaintiff “was of such immature age or that his mental or physical capacity was so impaired by the alleged injury complained of that he would not be of such mental or physical capacity to seek to know his rights or understand them if stated to him or ap*34prehended the need of searching out or enforcing his legal remedies or if his mental capacity was such that he would not be reasonably expected to take any step to ascertain what his rights were, then in such event he would be excused from giving the notice required by the charter so long as such mental or physical incapacity existed or until a guardian was appointed for him, and in the event of such finding, then the fact that the notice was not given within the time required by the charter, would not of itself prevent the plaintiff from recovering; but, on the other hand, unless you should so find as above ■ stated, by a fair preponderance of the evidence, then your verdict should be for the defendant.”
The jury found for the minor plaintiff, and the Oklahoma Supreme Court affirmed. That which seemed doubtful to this court in the Hurley case seems crystal clear to me, and that is that when a plaintiff is unable, because of minority, mentality, or physical condition, to understand his rights if they were explained to him, then he is relieved from doing the impossible thing of giving notice to a city.
It is claimed that the notice requirement is to enable the city to make a proper investigation of the circumstances in connection with the claimed injury. That claim seems weak when it is realized that in case of death resulting from causes other than defects in a street, etc., no such notice is required.5
I am unable to see why the city is any more prejudiced in the one case than in the other. The fact that the waterworks may or may not be a part of a financial venture does not lessen the need for the city to make a speedy investigation. Certainly any delay in bringing an action would be equally prejudicial, if not more so, to the infant than it would be to the city.
Another case 6 in point was said by our court to have been decided on one of Brown’s legal maxims. In that case the Illinois statute required a six months’ notice as a condition precedent to the bringing of an action against a city. The constitutional question was not raised on appeal in the appellate court. However, the Supreme Court of Illinois in reversing the appellate court and affirming the trial court where judgment was for the infant said at 120 N.E. 477:
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 *35is 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 .
With equal ease this court in the hurley case ignored the case of Murphy v. Village of Ft. Edwards.7 There a statute required a sixty-day notice to be filed with the village before an action could be brought. The Plaintiff, a five-year-old child, brought an action through a guardian ad litem without having filed the required notice of injury within the required sixty days. The trial court set aside a verdict for the infant, and the appellate division reversed. The Court of Appeals affirmed, saying:
In this state the maxim that the law does not seek to compel a man to do that which he cannot possibly perform has been made the basis for the principle that physical and mental inability to comply with a statutory provision of the kind under consideration excuses the concompliance. [Citations omitted.]
This court has not declared that infancy creates or is a condition of mental or physical inability. There are two suggestive judicial utterances. The one of Judge Gray in the Winter Case [Winter v. City of Niagara Falls, 119 App.Div. 586, 104 N.Y.S. 39]:
“The plaintiff was 18 years of age and, so far as the complaint shows, presumably was able to cause a claim to be filed, and the statute makes no exception as to persons.”
The other of Judge Spring in the opinion of the Appellate Division in the Winter Case, 119 App.Div. 586, 104 N.Y.S. 39:
“If an infant of 10 years is injured, with no one capable of presenting a claim to the common council, the strict limitation of the statute should not he raised against him. If 20 years of age and mature, and not disabled unduly by his injuries, then the statutory requirements should be applicable.”
There are cases holding that a parent is the natural guardian and protector of the rights of his infant child. It cannot, however, be justly held, we think, that rights accorded by the law to infants are forfeited because a parent did not perform for an infant where performance was excused because of the infancy.
We are of the opinion that immature infancy, which includes the age of five years, is, as a matter of law, a condition of physical and mental inability excusing *36compliance with the requirement of section 341. .
The Hurley case misstates the provisions of the city charter in discussing the Washington case of Born v. City of Spokane.8 In reference to that case, this court at 63 Utah 596, 228 P. 216 said:
. . . In that case, however, the city charter, after providing that claims must be filed with the city within a certain time, also provided that if it be impossible for the claimant, owing to either a physical or mental disability, to make his claim within the time prescribed, literal compliance as to the time limitation will not be required. .
One looks in vain in the Born case to find any reference to such a provision in the city charter. In fact, the opinion at 68 P. 387 states:
. . . [A] reasonable compliance with its terms is all that can be demanded; and, if it appears that it was an impossibility for the claimant to make his claim within the time prescribed, he will not be held to a literal compliance with the provisions of the law. .
The Born case further held:
. . . We think the general rule is that it must be shown that there is such physical or mental incapacity as to make it impossible for the injured person to procure the notice to be served, and, if there is an actual incapacity, it makes very little difference, in reason, whether the incapacity is mental or physical.
The later Washington case of Ehrhardt v. City of Seattle, 33 Wash. 664, 74 P. 827 (1903) makes no reference to any special statute such as referred to in the Hurley case. In Ehrhardt the holding is sufficiently set forth in headnote 3, which is as follows:
That one injured on account of a defective city street was, for more than 30 days thereafter, incapacitated from transacting any business, was a sufficient excuse for his noncompliance with an ordinance of the city requiring claims for damages to be presented within 30 days.
The Montana case of Lazich v. Belanger et al., 111 Mont. 48, 105 P.2d 738 (1940), held that the right of an infant of tender years to maintain an action against a city for injuries resulting from defective streets and sidewalks is not defeated by the failure of the infant or its parents to give notice thereof within the period of time required by statute.
In City of Colorado Springs v. Colburn,9 the city raised the defense of failure to give the required notice of injury within *37the specified time. In affirming a judgment for the plaintiff, the Colorado Supreme Court said:
While respectable authority has held that under statutes similar to ours, a failure to give the required notice to the city within the statutory time fixed cannot be excused, and that the statute must be strictly construed, we are inclined to adopt what we conceive to be the more reasonable and humane rule, also approved by respectable authority, to the effect that under proper circumstances of mental and physical incapacity, giving of notice is excused, the question as to the sufficiency of the circumstances to work such excuse properly to be submitted to the jury, as was done here
The Special Court of Appeals of Virginia held in Bowles v. City of Richmond10 that incapacity to give the required notice excuses entirely the compliance therewith.
The charter of the City of Washington, North Carolina, provided for a notice of injury to be filed within six months as a condition precedent to instituting an action against the city. In the case of Terrell v. City of Washington,11 the court said:
. . . The general rule in such cases seems to be that, in order to excuse a strict compliance with the provision, it must be shown that there is such physical or mental incapacity as to make it impossible for the injured person, by any ordinary means at his command, to procure service of the notice or a filing of the claim, whichever is required, and, if there is an actual incapacity, it can make no practical difference in reason whether it is mental or physical in its nature . . . . It may very properly be said that it would, in truth, shock the. sense of justice and right if this provision was construed so as to hold the notice of the plaintiff’s claim insufficient under the circumstances. It is an accepted maxim that the law does not seek to compel that to be done which is impossible. It cannot reasonably be presumed that the intention of the Legislature, in enacting this charter, would lead to any such in-just conclusion, and it is a fundamental canon of interpretation that a thing which is within the letter of a statute is not within the statute itself, unless it is within the intention of the makers
In Randolph v. City of Springfield12 a demurrer was sustained to the complaint for failure to state that timely notice had been given. Plaintiff’s complaint stated that she was injured so severely that she *38was incapacitated from giving it. In reversing the trial court, the Supreme Court of Missouri stated:
. . . If plaintiff had not been so severely injured by the defendant’s negligence as to prevent her from giving such notice, she could have given it, and would then not have been deprived by the statute of her right of action or remedy for the wrong inflicted upon her by the city. But if the construction of the statute by the lower court is correct, the fact that she was so seriously injured by the negligence of the city that she was unable to give such notice would make the statute, for that reason, deprive her of all right or remedy for the wrong inflicted upon her. In other words, if she is injured severely enough to prevent her from giving such notice of her injury, as required by said section of the statute, the statute forbids the courts of justice from being opened to her, and deprives her of all right and remedy for the injury she sustained by reason of the negligence of the city. It is clear enough that, if such a provision had bees expressly contained in said section of the statute, it would have been in conflict with said section 10, art. 2, of the Constitution. If such an intent on the part of the Legislature is implied, such implication would be equally inoperative and void as conflicting with the Constitution.
Cases bearing upon this question are collected in annotations found in 31 A.L.R. at page 618 and in 34 A.L.R.2d at page 729.
Text material in 56 Am.Jur.2d, Mun. Corp. § 776 reads:
. . . Thus on the one hand, a number of courts have held that incapacity to give the requisite notice, whether resulting from the injuries received, or from immature infancy, is no excuse for failure to give timely notice ....
On the other hand, some courts have held that even though the statute has no specific provision regarding delay in giving or failure to give notice, failure to give the statutory notice within the allotted time will not bar recovery where there have been extenuating circumstances, such as mental or physical incapacity, or immature infancy, which prevented strict compliance with the notice requirement. There is considerable authority to the effect that so to construe statutory provisions of the character under consideration as to make them apply to infants and persons who are mentally and physically incapable of giving the required notice within the period specified would render the statutes unconstitutional, as depriving such persons of due process of law. In other cases it has been held that the constitutional requirement providing a remedy for every wrong precludes construction *39of a notice requirement so as to bar an action by one who was unable, because of infancy or other disability, to comply with its terms. And it has been held that to so construe such statutes would serve to deprive people of that equal protection of the law which the very spirit of our institutions demands.
While there is a division of authority, the better reasoned cases in my mind are contrary to the Hurley case and should be followed. I would reverse the summary judgment and remand this case for a trial on the merits, and would award no costs.
. 63 Utah 589, 228 P. 213 (1924).
. Sections 10-7-77 and 78, U.C.A.1953.
. Laws of Utah 1965, Chapter 139,
. 79 Okl. 39, 191 P. 186 (1920).
. Brown v. Salt Lake City, 33 Utah 222, 93 P. 570 (1908).
. McDonald v. City of Spring Valley, 285 Ill. 52, 120 N.E. 476 (1918).
. 213 N.Y. 397, 107 N.E. 716, 717 (1915).
. 27 Wash. 719, 68 P. 386 (1902).
. 102 Colo. 483, 81 P.2d 397, 398 (1938).
. 147 Va. 720, 133 S.E. 593 (1926).
. 158 N.C. 281, 73 S.E. 888, 895 (1912).
. 302 Mo. 33, 257 S.W. 449, 451 (1923).