The opinion
DISSENTING OPINION.
WOODSON, J.
By reading the statement in this case, and the law applied thereto, it will be seen that our learned Commissioner has overlooked the ease of Mathieson v. Railroad, 219 Mo. 542 , l. c. 546, construing the act of the Legislature of Kansas which went into effect March 4,1903, which reads as follows:
“Every railroad company organized or doing business in this State shall be liable for all damages done to any employee of said company in consequence of any negligence of its agents, or by any mismanagement of its engineers or other employees, to any person sustaining such damage; provided, that notice in writing of the injury so sustained, stating the time and place thereof, shall have been given by or on behalf of the person injured to such railroad company within ninety days after the occurrence of the accident.” (The italics are ours.)
In that case this court, after reviewing the authorities, unanimously held that the notice mentioned therein was a substantive element in the plaintiff’s case, and that a petition based upon the laws of Kansas, omitting an allegation regarding the giving of said notice, failed to state facts sufficient to constitute a cause of action.
In a passing phrase, Mr. Commissioner Brown, without considering the statute in any sense whatever, *12 brushes it aside as so much chaff by the following’ words: “Its words do not apply because notice can neither be given by the dead nor in their behalf, and they do not include notice given on behalf of one entitled to damages for the death of another. ’ ’
If a solemn enactment of a Legislature, plain, simple and unambiguous as this statute is, can be brushed aside without thought or consideration, and with so little ink, then I would suggest that Legislatures be abolished, and that the law making and repealing power of government be placed in the hands of the judiciary, and thereby avoid the expense and necessity of going through the useless forms of legislation.
The statute in plain words says the injured party shall give the notice, or some one else shall give it for him. The mere fact that he dies of his injuries does not take the case out of either the spirit or letter of the statute, any more than if he should have been so badly injured that he could' not have been physically able to give the notice. For that reason the italicized words of the statute were evidently added in order that death or physical inability would not destroy the cause of action, which the general terms of the statute would otherwise have done, had not said proviso been added authorizing others to give it for him.
Without the notice the plaintiff had no cause of action during life; and if he died without giving the notice, or some one for him, then he had no cause of action to survive to the plaintiffs, those referred to in the other statutes mentioned in the opinion of our learned Commissioner.
The simplicity of the facts of this case, and the statutes applicable thereto, causes one to marvel why sensible men can misuxiderstand them, except upon the theory that we are convinced of the fact that the legislature of a State is incompetent to enact laws for tbe government of its-people, and therefore the courts must for righteousness’ sake set aside or nullify them.