O'Connell v. City of Cambridge

• Decision Date: 08 January 1927
• Citation: 154 N.E. 760,258 Mass. 203
• Parties: O'CONNELL v. CITY OF CAMBRIDGE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

258 Mass. 203

154 N.E. 760

O'CONNELL

v.CITY OF CAMBRIDGE.

Supreme Judicial Court of Massachusetts, Middlesex.

Jan. 8, 1927.

Report from Superior Court, Middlesex County; P. M. Keating, Judge.

Action of tort by Nellie O'Connell against the City of Cambridge to recover for personal injuries from being struck by an automobile hitting a defect in the highway and thrown onto the sidewalk.Verdict for plaintiff, and case reported.Judgment for defendant.

J. M. Raymond, of Boston, for plaintiff.

P. J. Nelligan, City Sol., and J. E. Nally, both of Boston, for defendant.

BRALEY, J.

General Laws, c. 84, §§ 18 and 19, provide that a person injured by a defect in the highway--

‘shall, within ten days thereafter, if such defect or want of repair is caused by or consists in part of snow or ice, or both, and in all other cases, within thirty days thereafter, give to the county, city, town or person by law obliged to keep said way in repair, notice of the time, place and cause of said injury or damage; and if the said county, city, town or person does not pay the amount thereof, he may recover the same in an action of tort if brought within two years after the date of such injury or damage. * * *

‘Such notice shall be in writing,signed by the person injured or by some one in his behalf, and may be given, in the case of a county, to one of the county commissioners or the county treasurer; in the case of a * * * town, to one of the selectmen or to the town clerk or treasurer. * * *’

[1][2] The giving of notice is made a precedent condition as the right of action is conferred by statute.Nash v. South Hadley, 145 Mass. 105, 107, 13 N. E. 376;Dalton v. Salem, 139 Mass. 92, 28 N. E. 576.The plaintiff having been injured by an alleged defect in a highway of the city seasonably sent a notice to the city solicitor which in form was in conformity with the statute.The question for decision is whether the service was in compliance with the requirements of the statute.It is contended by the plaintiff that while notice to either the mayor, the city clerk, or the treasurer is sufficient, yet the wording of section 19 being permissive, service upon the city solicitor, although he is not within the class designated, is sufficient.If this interpretation is adopted, it seems to follow that the person injured may at his own option select any municipal officer including heads of the various departments comprising the form of government under the city charter.The requirement of a notice after the accident first appears in St. 1877, c. 234, § 3, and by section 4 in the case of a city it may be given to ‘the mayor, the city clerk, or treasurer, or to any police officer.’The words ‘or to any police officer’ are omitted in subsequent statutes(P. S. c. 52, § 21;R. L. c. 51, § 21;G. L. c. 84, § 19), and whether service on the mayor, the city clerk, or the treasurer, is the exclusive mode, although referred to, was left undecided in Wormwood v. Waltham, 144 Mass. 184, 10 N. E. 800.The subjection of the city to the payment of damages if the plaintiff prevails, the money for which must be raised by taxation, is undoubtedly a matter of public interest, and a duty is imposed upon the officers named to...