Shallow v. City of Salem

• Decision Date: 30 November 1883
• Parties: John Shallow v. City of Salem
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

136 Mass. 136

John Shallow v. City of Salem

Supreme Court of Massachusetts

November 30, 1883

Essex. Tort for personal injuries occasioned to the plaintiff on January 20, 1882, by a defect in a highway in the defendant city. Answer, a general denial. Trial in the Superior Court before Knowlton, J., who ruled that the notice given by the plaintiff to the defendant on January 30, 1882, was insufficient, and that the plaintiff could not maintain his action, and ordered a verdict for the defendant; and the plaintiff alleged exceptions. The facts appear in the opinion.

Exceptions overruled.

C. A Benjamin, for the plaintiff.

J. A Gillis, for the defendant.

Devens, J. W. Allen & Holmes, JJ., absent.

OPINION

Devens, J.

The notice required by the St. of 1877, c. 234, is a condition precedent to the right to maintain an action against a city or town in cases like the one at bar. It cannot be held that the notice given complied with the provisions of the statute, in stating the place of the injury alleged to have been received by the plaintiff. The injury for which the plaintiff sought to recover in fact occurred on the south side of Everett Street, while the notice alleged it to have been "on the northerly side of Everett Street, about seventy-five or one hundred yards fro the corner of Lafayette Street, and nearly opposite the gateway of the first house on that side of Everett Street from said corner." Not only was the place of the injury thus located on the north side, but the house by means of which it was specially defined was there located also. There was no inconsistency in the notice as given, and there was no fixed or permanent object referred to, either as identifying the place, or as being the occasion of the injury, which would indicate that a mistake had been made as to the side of the street. It was rightly ruled, therefore, that the notice was not sufficient. Larkin v. Boston, 128 Mass. 521. Post v. Foxborough, 131 Mass. 202. Lowe v. Clinton, 133 Mass. 526. Cronin v. Boston, 135 Mass. 110.

But the plaintiff contends that, inasmuch as there was no intention to mislead, and as the defendant was not actually misled by the insufficiency of the notice, the St. of 1882, c. 36, ^[*] although enacted subsequently to the plaintiff's injury, and to the giving of the notice by him, is to be construed as acting retrospectively, and thus as validating the notice in the case at bar, even if otherwise it would be insufficient.

We have no occasion to consider whether, or under what circumstances a right of action might be created against a city by clearly expressed legislation, where such right did not previously exist, as this statute does not indicate any such intent. Even if it be remedial in its...