Coghlan v. White

CourtUnited States State Supreme Judicial Court of Massachusetts
Writing for the CourtRUGG
Citation128 N.E. 33,236 Mass. 165
PartiesCOGHLAN v. WHITE et al.
Decision Date24 June 1920

236 Mass. 165
128 N.E. 33

COGHLAN
v.
WHITE et al.

Supreme Judicial Court of Massachusetts, Suffolk.

June 24, 1920.


Exceptions from Superior Court, Suffolk County; Joseph F. Quinn, Judge.

Action of tort for conscious suffering and death of plaintiff's intestate by Ellen F. Coghlan, administratrix, against John E. White and others. Verdict for defendants, and plaintiff excepts. Exceptions sustained.


James [236 Mass. 166]J. McCarthy and Daniel M. Lyons, both of Boston, for plaintiff.

Harry F. R. Dolan, James H. Morson, and Joseph S. O'Neill, all of Boston (Harold A. Leventhal, of counsel), for defendants.


RUGG, C. J.

This is an action of tort to recover damages for the conscious suffering and death of the plaintiff's intestate caused by slipping upon ice accumulated upon the sidewalk by reason of a leaking and defective spout on an adjacent building belonging to the defendants. As a condition precedent to the right of recovery it was incumbent upon the plaintiff to show that written notice seasonably was given as required by law. Merrill v. Paige, 229 Mass. 511, 513, 118 N. E. 862. It is provided by St. 1908, c. 305, that ‘leaving the notice with the occupant of said premises' (that is, premises adjoining the way on which ice had been accumulated wrongfully), shall be a sufficient compliance with the law. To prove that this requirement of the statute had been met, a constable, called as a witness by the plaintiff, testified that he served a notice upon one of the occupants of the building on which was the defective spout whereby the ice accumulated causing the injury. The notice was sufficient in form. Stefani v. Freshman, 232 Mass. 354, 122 N. E. 293. The return of the constable, indorsed on the notice and signed by him, was in these words:

[128 N.E. 34]

‘Suffolk, ss.: April 21, 1917. I this day served a notice, of which the within is a true copy, by leaving the same with [236 Mass. 167]John Flaherty, the occupant of suite 2 of the dwelling house No. 54 West Seventh street, South Boston.’

The defendants objected to the introduction of this copy and return on the ground that there was no evidence to show that Flaherty was an occupant of the building. Cross-examination of the constable followed. Without narrating it in detail, it is enough to say that he made conflicting statements, the import of some parts being that Flaherty was then living there and of other parts that he had no knowledge on the subject. Later the person in charge of the premises for the owners and Flaherty were called as witnesses, and both testified that Flaherty was an occupant of the suite upon the second floor of the premises in question, in which there were three suites or apartments. Flaherty and the agent each testified that no notice whatever was served on him by the constable or any one else, and that he received no notice in writing. The judge finally excluded the notice and then as a necessary consequence of that ruling ordered a verdict for the defendant. The only question presented is whether there was error of law in the exclusion of the notice.

Manifestly it was a question of fact whether the notice was served as required by the statute. The admissibility in evidence of the notice depended upon the point whether it had been so served. It is contended that that was a preliminary question of fact which must be determined by the judge and that his decision is conclusive. There is a large class of cases where the admissibility of evidence depends upon some preliminary finding by the judge which is final and cannot be reviewed. That principle finds numerous illustrations in our decisions. In Gorton v. Hadsell, 9 Cush. 508, the admissibility of certain records depended upon the question whether a written application to a justice of the peace to call a meeting had been signed by five proprietors of a meeting-house. Evidence tending to prove that proposition was introduced, but the judge refused to sumbit it to the jury because he was of opinion that it was his duty to determine the sufficiency of the evidence as a preliminary matter...

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17 practice notes
  • Morgan v. Hays, No. 8653
    • United States
    • Supreme Court of Arizona
    • April 12, 1967
    ...Pressley. We also call attention to the fact that such cases as Boyden v. Lamb, 152 Mass. 416, 25 N.E. 609 (1890), and Coghlan v. White, 236 Mass. 165, 128 N.E. 33 (1920), dealt with a waiver of the right to bring court damages after electing to receive[102 Ariz. 155] Page 652 compensation.......
  • Torre v. Harris-Seybold Co., HARRIS-SEYBOLD
    • United States
    • Appeals Court of Massachusetts
    • May 6, 1980
    ...the admissibility of evidence, the determination of the trial judge is conclusive if there is evidence to support it (Coghlan v. White, 236 Mass. 165, 169, 128 N.E. 33 (1920); Fauci v. Mulready, 337 Mass. 532, 540, 150 N.E.2d 286 (1958); Ricciutti v. Sylvania Elec. Prod., Inc., supra at 351......
  • Lajoie v. Milliken
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • September 25, 1922
    ...him as principal, rested with the trial court. Hathaway v. Congregation Ohab Shalom, 216 Mass. 539, 544, 104 N. E. 379;Coghlan v. White, 236 Mass. 165, 168, 169, 128 N. E. 33. See Pilon v. Viger, 198 Mass. 118, 84 N. E. 310,126 Am. St. Rep. 408. It is apparent from all the testimony that th......
  • Commonwealth v. Polian
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • December 3, 1934
    ...Mass. 41, 48 N. E. 756;Commonwealth v. Tucker, 189 Mass. 457, 473-475, 76 N. E. 127,7 L. R. A. (N. S.) 1056. See, also, Coghlan v. White, 236 Mass. 165, 128 N. E. 33;Hart Packing Co. v. Guild, 251 Mass. 43, 46, 146 N. E. 238. Compare State v. Bordeleau, 118 Me. 424,108 A. 464;State v. Compo......
  • Request a trial to view additional results
18 cases
  • Morgan v. Hays, No. 8653
    • United States
    • Supreme Court of Arizona
    • April 12, 1967
    ...Pressley. We also call attention to the fact that such cases as Boyden v. Lamb, 152 Mass. 416, 25 N.E. 609 (1890), and Coghlan v. White, 236 Mass. 165, 128 N.E. 33 (1920), dealt with a waiver of the right to bring court damages after electing to receive[102 Ariz. 155] Page 652 compensation.......
  • Torre v. Harris-Seybold Co., HARRIS-SEYBOLD
    • United States
    • Appeals Court of Massachusetts
    • May 6, 1980
    ...the admissibility of evidence, the determination of the trial judge is conclusive if there is evidence to support it (Coghlan v. White, 236 Mass. 165, 169, 128 N.E. 33 (1920); Fauci v. Mulready, 337 Mass. 532, 540, 150 N.E.2d 286 (1958); Ricciutti v. Sylvania Elec. Prod., Inc., supra at 351......
  • Lajoie v. Milliken
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • September 25, 1922
    ...him as principal, rested with the trial court. Hathaway v. Congregation Ohab Shalom, 216 Mass. 539, 544, 104 N. E. 379;Coghlan v. White, 236 Mass. 165, 168, 169, 128 N. E. 33. See Pilon v. Viger, 198 Mass. 118, 84 N. E. 310,126 Am. St. Rep. 408. It is apparent from all the testimony that th......
  • Commonwealth v. Polian
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • December 3, 1934
    ...Mass. 41, 48 N. E. 756;Commonwealth v. Tucker, 189 Mass. 457, 473-475, 76 N. E. 127,7 L. R. A. (N. S.) 1056. See, also, Coghlan v. White, 236 Mass. 165, 128 N. E. 33;Hart Packing Co. v. Guild, 251 Mass. 43, 46, 146 N. E. 238. Compare State v. Bordeleau, 118 Me. 424,108 A. 464;State v. Compo......
  • Request a trial to view additional results

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