Blanchard v. Stone's, Inc.

• Decision Date: 29 December 1939
• Parties: BLANCHARD v. STONE'S, Inc. SAME v. A. W. PERRY REALTY CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

304 Mass. 634

24 N.E.2d 688

BLANCHARD

v.STONE'S, Inc.

SAME

v.A. W. PERRY REALTY CO.

Supreme Judicial Court of Massachusetts, Plymouth.

Dec. 29, 1939.

Exceptions from Superior Court, Plymouth County; Dillon, Judge.

Personal injury action by Myra Blanchard against Stone's, Incorporated, and by same plaintiff against A. W. Perry Realty Company. The jury returned a verdict for plaintiff against both defendants, but trial judge, in accordance with leave reserved, ordered, subject to plaintiff's exception, a verdict to be entered for each defendant, and plaintiff brings exceptions.

Exception sustained in the case against Stone's, Incorporated, and overruled in the case against A. W. Perry Realty Co.Edward R. Langenbach, of Boston, for plaintiff.

R. Donovan and C. C. Willard, both of Boston, for defendant A. W. Perry Realty Co.

Katzmann, Vahey & Dray, of Plymouth, for defendant Stone's, Inc.

RONAN, Justice.

The plaintiff fell upon the sidewalk of Union Street in Rockland, late in the afternoon of January 29, 1935, in front of a store conducted by the defendant in the first case, which was located upon the street floor of a building owned by the defendant in the second case. The jury returned a verdict for the plaintiff against each defendant, and in accordance with leave reserved the judge, subject to the plaintiff's exceptions, ordered a verdict to be entered for each defendant.

The jury could find that the plaintiff slipped upon a round, dark patch of ice two feet in width, located in about the middle of a white cement sidewalk directly beneath a sign which had snow upon the top of it; that the rest of the sidewalk was clear, with the exception of a small amount of snow which projected from the gutter a little over the outer edge of the sidewalk; and that water was dripping from this sign at noon on the day of the accident.

In the action against the defendant Stone's Inc. there was evidence that one Stone had leased two stores, numbered 251 and 253 Union Street, in 1928, and that this lease expired in December, 1933, and was not renewed. The defendant corporation was formed in 1931. Stone was the president, treasurer, director and general manager, his wife was the secretary and a director, and the other director was an accountant. The store at 253 Union Street was vacated in 1933, and thereafter the corporation occupied the store at 251 Union Street for the sale of men's merchandise. Soon after Stone first occupied the premises he erected an oblong shaped sign which projected over and beyond the middle of the sidewalk. The lower edge of this sign was located a little below the coping that runs along the front of the building a short distance above the top of the first story. The sign was attached to this coping and to the outside wall of the second story of the building by angle irons. It was also supported by two chains running from the sign to the coping, and by three chains attached to the second story outer wall. The top of the sign was covered by a narrow roof, slightly pitched, which had vertical sides projecting down a short distance from the roof and over both sides and the outer edge of the sign. When first erected the sign was illuminated by electric lights which were installed under the roof and above each face of the sign. This sign was located about one-half way between 251 and 253 Union Street and displayed the words ‘Stone's Men's Shop.’ There was also a sign over the front of the store which read ‘Stone's Inc. Men's Shop’ and the awning was lettered ‘Stone's Inc. Men's Shop.’ The word ‘Inc.’ in each instance, while readily legible, was smaller than the rest of the words showing the name of the proprietor of the business. See Slome v. Godley, Chief of Police of Fitchburg, Mass., 23 N.E.2d 133. Under each of the two front windows was painted the word ‘Stone's.’ Two of these signs indicated that the store was conducted by a corporation, two tended to show that it was maintained by an individual, and the third set forth a trade name which might apply equally to an individual or to a corporation. This defendant advertised in the local newspaper under the name of Stone's Men's Shop.

A notice addressed to ‘Stone's Men's Shop’ was received by Stone on February 27, 1935, which he forwarded to someone almost immediately. Stone testified that he would not have done anything different from what he did if the notice had been addressed to ‘Stone's Inc.’ rather than to ‘Stone's Men's Shop.’ This notice gave the name of the plaintiff and the street and number of her residence in Rockland. It set forth the time and place of the accident, and alleged that it was caused by the defective condition of the premises, which caused water ‘to be discharged therefrom upon the sidewalk and snow and ice to accumulate and remain upon the said sidewalk.’ The notice made no mention of the sign. The defendant did not request a new notice from either the plaintiff or her attorney who gave the notice upon one of his letterheads. The notice did not state any specific cause of the accident. Noonan v. Lawrence, 130 Mass. 161;Merrill v. Springfield, 284 Mass. 260, 187 N.E. 551;King v. Boston, Mass., 15 N.E.2d 191;G.L.(Ter.Ed.) c. 84, § 20, as amended by St.1933, c. 114, § 3, provides that a defendant shall not avail himself of the omission to state the cause of the accident unless within five days after the receipt of the notice (which gives the address of the plaintiff or of the person giving the notice) he notifies the person who sent the notice that it is insufficient and requests a written notice in compliance with the law. The defendant is precluded by this statute from challenging the validity of the notice on the ground that it failed to state the cause of the injury.

The notice upon its face shows that it was intended to be given to the occupant and to the person in control of the store in front of which the plaintiff fell, and for which she claimed damages. A notice need not give the name of the person who is charged with responsibility for the accident if enough appears from the notice to show that it was intended to be given to a particular person and that it was received by him. Stefani v. Freshman, 232 Mass. 354, 122 N.E. 293;Haverty v. Ernst, 232 Mass. 543, 122 N.E. 727. The name of a person is the usual but not exclusive means of establishing his identity. O'Brien v. Board of Election Commissioners of Boston, 257 Mass. 332, 153 N.E. 553;Brewer v. Hayes, 285 Mass. 144, 188 N.E. 600. A corporation may assume a trade name and conduct a business under a name other than the one designated in its charter, and is bound to persons who have dealt with it under such assumed name. Gifford v. Rockett, 121 Mass. 431.William Gilligan Co. v. Casey, 205 Mass. 26, 31, 91 N.E. 124;Associates...