Brocklesby v. City of Newton

• Decision Date: 03 March 1936
• Citation: 294 Mass. 41,200 N.E. 351
• Parties: BROCKLESBY v. CITY OF NEWTON (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

294 Mass. 41

200 N.E. 351

BROCKLESBY

v.CITY OF NEWTON (two cases).

Supreme Judicial Court of Massachusetts, Middlesex.

March 3, 1936.

Actions by John F. Brocklesby, administrator of a decedent's estate, against the City of Newton. From an order dismissing a report of the trial judge, who refused rulings requested by defendant, the latter appeals.

Affirmed.

Appeal from Appellate Division, District Court of Newton, Northern District; Lynch, Judge.

E. O'H. Mullowney, of Boston, for appellant.

B. F. Thornburg, of Waltham, for appellee.

QUA, Justice.

These are actions for the conscious suffering and death of the plaintiff's intestate, alleged to have resulted from a defect in a highway.

The only questions before us arise from the refusal of the judge to grant rulings requested by the defendant in each case to the effect that the statutory notice given by the plaintiff to the defendant of the time, place and cause of the injury was inadequate. On the first day of the trial, and again during the final arguments, colloquies took place between counsel and with the court, from which the judge was well justified in concluding that the defendant admitted that a sufficient notice had been given and that there was no question of notice in the case.

After what had taken place there was no error in refusing requests for rulings attacking the notice. It is true that the giving of the notice in cases within the statute is one of the facts required to create a cause of action. If it is not given, no cause of action arises. For this reasonit has been held that the city or town cannot waive the notice. Gay v. Cambridge, 128 Mass. 387. This means that there can be no waiver out of court which dispenses with the necessity for giving the notice. It does not bear upon the conduct of a trial in court by an attorney representing the municipality. It does not make it necessary for the plaintiff to prove the giving of a sufficient notice, when that fact is admitted in court by the defendant. It does not prevent the defendant from admitting in court the fact that notice has been given or from stating or agreeing in court that no issue exists as to that fact, just as it might admit, state or agree that the way in question was a publicway or that the plaintiff was injured while travelling upon it, or as to the truth of any other fact which is a necessary part of the plaintiff's case. This is not waiving a condition precedent. It is a method of establishing facts. Nothing is more common in practice or more useful in dispatching the business of the courts than for counsel to admit undisputed facts. Their clients, including municipal corporations, are bound by such admissions. Lewis v. Sumner, 13 Metc. 269;Central Bridge Corporation v. Lowell, 15 Gray, 106, 128;Savage v. Blanchard, 148 Mass. 348, 19 N.E. 396;Boston Electric Co. v. Cambridge, 163 Mass. 64, 68, 39 N.E. 787;McMahon v. Lynn & Boston Railroad Co., 191 Mass. 295, 299, 77 N.E. 826;Mercier v. Union Street Railway Co., 230 Mass. 397, 406, 119 N.E. 764; Graustein v. H. P. Hood & Sons, Inc. (Mass.) 200 N.E. 143; Oscanyan v. Winchester Repeating Arms Co., 103 U.S. 261, 263, 26 L.Ed. 539. In Lewis v. Sumner, cited above, as in this case, counsel had admitted the giving of an adequate statutory notice which was essential to the plaintiff's recovery.

Brown v. Winthrop, 275 Mass. 43, at page 47, 175 N.E. 50, is distinguishable from the present case. In that case the town, at a former trial, admitted the giving of the notice, and this...